Citation Nr: 21063832 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-31 372A DATE: October 18, 2021 ORDER An initial 70 percent evaluation, but no higher, for posttraumatic stress disorder (PTSD) prior to May 8, 2020, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Prior to May 8, 2020, the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 70 percent evaluation, but no higher, for PTSD prior to May 8, 2020, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1982 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation effective from June 29, 2010. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2019. A transcript is of record. The Board remanded the case for further development in December 2019. That development was completed, and the case has since been returned to the Board for appellate review. In a July 2020 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for PTSD to 100 percent effective from May 8, 2020. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Fenderson v. West, 12 Vet. App. 119, 125-27 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran is currently assigned a 30 percent evaluation prior to May 8, 2020, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent evaluation is assigned for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted when the psychiatric disorder results in reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted when the psychiatric disorder results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when the psychiatric disorder results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 70 percent evaluation prior to May 8, 2020, but no higher. Specifically, the evidence demonstrates that his overall disability picture more nearly approximates social and occupational impairment with deficiencies in most areas throughout the rating period on appeal. Notably, a July 2016 treatment record shows that the Veteran experienced passive thoughts of suicide with no plan. Treatment records dated in December 2016 and February 2017 VA treatment record also document a telephone consultation and in-person appointments during which he reported experiencing suicidal ideations several days out of a month. Private medical records dated in February 2017 similarly noted that he reported having suicidal thoughts for years. In addition, a December 2019 suicide screen yielded positive results, and a January 2020 private treatment record noted that the Veteran fought suicidal thoughts every day. As set forth above, suicidal ideation is one of the symptoms associated with a 70 percent disability rating. Suicidal ideation involves a range from a passive wish not to awaken in the morning or a belief that others would be better off if the individual were dead, to transient but recurrent thoughts of committing suicide, to a specific plan. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Court has held that the criteria for a 70 percent rating "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. Moreover, the Veteran told the March 2011 VA examiner that he had several jobs since his military service and that his relationships with his supervisor and co-workers were poor. He also indicated that he had lost jobs due to his anger. It was further noted that he had impaired attention, difficulty concentrating, anger, distrust, and irritability. The examiner stated that he had difficulty establishing and maintaining effective work/school and social relationships because of his distrust and anger. A May 2012 VA examiner had also indicated that the Veteran had difficulty concentrating, disturbance in motivation and mood, and difficulty in establishing and maintaining relationships. At that time, the Veteran reported that he had significant tension in the household with his girlfriend and her daughter. In addition, an August 2014 treatment record indicated that the Veteran demonstrated fair concentration, recent and remote memory, and insight and judgment, and private treatment records note that the Veteran experienced depression that makes him apathetic and caused him to be unmotivated to do things. A January 2019 treatment record similarly noted that his depression makes it impossible for him to be motivated to do anything good for himself, and a December 2019 private treatment record stated that the Veteran has a pattern of not forming and maintaining relationships. Private treatment records further indicate that the Veteran had conflicts at work. Overall, the Veteran has demonstrated a level of impairment consistent with the 70 percent criteria, and his symptoms have caused occupational and social impairment in most of the areas prior to May 8, 2020. Significantly, as noted above, he has experienced suicidal ideations, near continuous depression, the inability to establish and maintain effective relationships, and conflicts at work that sometimes resulted in the loss of his job. Thus, resolving any reasonable doubt in favor of the Veteran, a 70 percent evaluation is warranted prior to May 8, 2020. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 70 percent for PTSD at any time prior to May 8, 2020. However, the record does not reflect total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. During the March 2011 VA examination, the Veteran reported that he had panic attacks that occur less than once per week. He was found to be oriented with appropriate hygiene and appearance, and he had normal speech and communication. His behavior was appropriate, and there was no history of violent behavior, delusions, hallucinations, or obsessive-compulsive behavior. The Veteran's thought processes were also appropriate, he was able to understand directions, did not have slowness of thought, and did not appear confused. The examiner found that his judgment was not impaired and that his abstract thinking was normal. The Veteran only had mild memory impairment, and he denied having homicidal ideation. The examiner stated that he did not appear to pose any threat of danger or injury to self or others. The May 2012 VA examiner also found that the Veteran did not have near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; memory loss for names of close relatives, own occupation, or own name; gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and disorientation to time or place. In addition, the March 2011 and May 2012 VA examiners stated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation. Such a finding is commensurate with a 30 percent evaluation. Moreover, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or symptoms of similar severity may be shown or argued, the Board finds that the Veteran's PTSD has not been productive of total occupational and social impairment. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The Board acknowledges that there is documentation of some social impairment, including withdrawal and isolation. However, the Veteran told the March 2011 VA examiner that he had a good relationship with his mother, some siblings, an adult son, and a female partner with whom he lived. During the May 2012 VA examination, he reported having significant tension in his household, but he was still living with his girlfriend of two years and her daughter. The Veteran also indicated that his relationship with his son remained good and that they talked all the time, and he remained in contact with his siblings. Private treatment records dated in 2018 further noted that he had a friend at work. During the April 2019 hearing, the Veteran testified that he talked to his son and his wife and that he talked to a couple of his brothers once every couple of months or once a year. He stated that he did not have any close personal friends, but he did interact with others in a men's group at church once or twice per week. A May 2019 private medical record further noted that he had recently went on a field trip with his granddaughter and that he has some friends in a men's group at church. Thus, while the Veteran clearly has some degree of impairment, it cannot be said that he has had total social impairment, as he maintained some relationships during throughout the appeal period. With regard to occupational impairment, the Veteran told the March 2011 VA examiner that he was unemployed, but he indicated that his unemployment was not primarily due to the effects of a mental condition. A December 2011 VA treatment record noted that he was working on his degree in healthcare administration while also doing a work study program at VA. The Veteran remained unemployed at the time of the May 2012 VA examination, but an April 2013 VA treatment record dated indicated that he was working for a local trucking company. It was later noted in June 2013 that he was no longer employed after getting into a conflict at work. In November 2013, the Veteran was finishing an associates degree in health care administration and he had been working since July 2013. A January 2014 VA treatment record documented that he had been unemployed since November, but an October 2015 VA treatment record later noted that he had had a job in public works since June. VA treatment records dated in July 2016 and September 2017 indicated that the Veteran was employed full-time, and private treatment records dated in 2017, 2018, and 2019 show that he continued to work. VA treatment records dated in 2020 further show that he was employed. During the April 2019, the Veteran testified that he was employed in forest and road maintenance. Thus, there is evidence showing that the Veteran has occupational impairment resulting from his service-connected psychiatric disability, but it is not clear that he has total occupational impairment as a result of his service-connected PTSD. Nevertheless, even if the Veteran were shown to have total occupational impairment due to his service-connected psychiatric disability, the fact remains that he has not been shown to have total social impairment, as required by the rating criteria for a 100 percent evaluation. After considering the evidence of record, the Board finds that the Veteran's symptoms and impairment more closely approximate the criteria for the 70 percent disability rating. Overall, the Veteran has not demonstrated a level of impairment consistent with the criteria for a 100 percent evaluation prior to May 8, 2020. Mauerhan, supra, Vazquez-Claudio, supra. Thus, the criteria for a total evaluation have not been met or approximated during the appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, the Board concludes that the weight of the evidence is against a rating in excess of 70 percent for PTSD prior to May 8, 2020. As such, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.