Citation Nr: 21064421
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 17-48 179A
DATE: October 20, 2021

ORDER

Entitlement to a rating in excess of 10 percent, prior to May 11, 2017, in excess of 50 percent, prior to November 26, 2018, and in excess of 70 percent, since November 26, 2018,for posttraumatic stress disorder (PTSD) with major depressive disorder is denied.

FINDINGS OF FACT

1. Prior to May 11, 2017, the Veteran's acquired psychiatric disorder, to include PTSD with major depressive disorder, had been manifested by symptoms which most closely equate to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.

2. From May 11, 2017 to November 26, 2018, the Veteran's acquired psychiatric disorder, to include PTSD with major depressive disorder, did not more closely approximate occupational and social impairment with deficiencies in most areas. 

3. From November 26, 2018, the Veteran's acquired psychiatric disorder, to include PTSD with major depressive disorder, had been manifested by symptoms which most closely equate to occupational and social impairment, with deficiencies in most areas, such as work, school, and family relations; total occupational and social impairment is not shown.

CONCLUSION OF LAW

The criteria for entitlement to a rating in excess of 10 percent, prior to May 11, 2017, in excess of 50 percent, prior to November 26, 2018, and in excess of 70 percent, since November 26, 2018,for posttraumatic stress disorder (PTSD) with major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Codes 9411 and 9440.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served in the Marines from May 2000 to September 2013.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994).

When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

1. Entitlement to a rating in excess of 10 percent, prior to May 11, 2017, in excess of 50 percent, prior to November 26, 2018, and in excess of 70 percent, since November 26, 2018,for posttraumatic stress disorder (PTSD) with major depressive disorder

Prior to May 11, 2017

Prior to May 11, 2017, the Veteran had been in receipt of a 10 percent rating for an acquired psychiatric disorder, to include adjustment disorder with mixed emotional features, under 38 C.F.R. § 4.130, DC 9440. He contends that he is entitled to a higher rating. 

A 10 percent disability rating is assigned when there is occupational and social impairment due to transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

A 30 percent disability rating is assigned when there is occupational and social impairment with 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 

A 50 percent rating is assigned for occupational and social impairment with 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; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is assigned for 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 worklike setting); inability to establish and maintain effective relationships. Id.

A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Id.

The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court of Appeals for Veterans Claims (Court) also pointed out in that case, "[w]ithout those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored.

The Veteran underwent a VA examination in February 2014. The examiner diagnosed the Veteran with adjustment disorder with mixed emotional features and attention deficit disorder. The examiner noted that the Veterans attention deficit disorder was not aggravated by his active duty. The Veterans adjustment disorder caused symptoms of sporadic anxiety and depression on circumstances while his attention deficit disorder caused symptoms of poor concentration and attention span. The Veteran reported problems with his attention span. However, he denied startle, hypervigilance, intrusive memories, flashbacks or avoidance. Further, he denied being suicidal, manic, or psychotic. 

The examiner stated that the Veteran exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner noted the Veterans symptom of depressed mood. The examiner further noted that these symptoms are mainly due to his adjustment disorder. On examination, the Veteran appeared neatly groomed, behaved normally, and was pleasant and cooperative. Additionally, while the Veteran reported having a little anxiety, he was not homicidal or suicidal. Further, he reported that he is able to get along with the public, coworkers, and supervisors. 

The Veteran underwent a VA examination in April 2017. The examiner diagnosed the Veteran with attention deficit disorder with predominantly inattentive presentation. The examiner stated that the Veterans symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. Since the last evaluation, the Veteran reported that he begun college classes. He denied any feelings of depressed mood or anxiety, marked distress or significant impairment in social, occupational, or other important areas of functioning. Further, he denied any mental health treatment since his last exam. The examiner noted that the Veteran no longer met the DSM-5 criterion of adjustment disorder, as his symptoms have resolved.  

The Board finds that these examination reports do not support a rating in excess of 10 percent. The Veteran's symptoms were generally mild at that point in time, and did not interfere with his ability to maintain employment as a delivery truck driver. Anxiety did exist, although it also did not generally interfere with occupational tasks. He was coherent, employed, attending college classes, and capable of managing his daily activities without issue. As such, when taken as a whole, the Board does not find that this evidence supports a rating in excess of 10 percent.

The Board finds that the evidence of record, accounting for the period prior to May 11, 2017, does not show symptoms that would account for occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks. While symptoms of depression and anxiety were certainly present, they did not manifest to such a degree that his occupational or social profile were affected in any significant way. As such, the Board finds that, prior to May 11, 2017, the criteria for a rating in excess of 10 percent for PTSD was not met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

From May 11, 2017 to November 26, 2018 

The Veteran is seeking a higher rating for the period of May 11, 2016, to November 26, 2018. The Veteran was in receipt of a 50 percent rating for an acquired psychiatric disorder, to include posttraumatic stress disorder associated with major depressive disorder, which was previously rated as adjustment disorder with mixed emotional features. The Veterans psychiatric disorder is now rated under diagnostic code 9411. 

Unfortunately, based on the evidence of record, the Board determines that the next-highest 70 percent rating for the period on appeal is not warranted. Specifically, the record indicates that the Veteran's symptoms do not produce occupational and social impairment with deficiencies in most areas.  

A March 2018 medical treatment record revealed that the Veteran experienced periodic nightmares three to four times per month, endorsed intermittent intrusive memories, tends to avoid crowded areas, easily frustrated, and has outbursts with feelings of sadness, hopelessness, worthlessness, and low energy. On examination, the Veteran exhibited a flattened affect and monotone speech.  

The Veteran underwent a VA examination on April 13, 2018. The examiner noted that the Veterans symptoms did not meet the diagnostic criteria for a PTSD diagnosis and noted a diagnosis of adjustment disorder with depressed mood. The Veteran reported periods of irritability and feelings that he is different or more boring than others. Further, he reported that he experiences random outbursts of depression, randomly gets irritated, yells, or gets upset, can't sleep at night, has no social life and has no interest with others. The examiner stated that the Veteran exhibited occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment.  However, the Veteran had no suicidal ideation, homicidal ideation, or hospitalizations. 

During an examination conducted on April 19, 2018, the examiner diagnosed the Veteran with PTSD and major depressive disorder.  The Veteran reported symptoms of sad mood, low self-worth, anhedonia, passive suicidal ideation, anxiety, irritability, avoidant behavior with social isolation and hypervigilance. He reported that he was receiving psychiatric care through the VA for anxiety and depression and sees a psychiatrist once a month. However, he denied active suicidal intent or any history of attempt The examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Further, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or worklike setting, suicidal ideation, obsessional rituals with interfere with routine activities.

Nevertheless, these symptoms are all explicitly contemplated in the 50 percent rating criteria. There are no indications that the Veteran experienced near continuous panic of depression affecting the ability to function independently, appropriately, and effectively, which are relevant factors for a 70 percent rating.  

Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of social and occupational inadaptability.

There is insufficient evidence to show that a 70 percent rating is warranted based on overall social or occupational impairment. There is insufficient evidence to show that a 70 percent rating is warranted based on occupational and social impairment with deficiencies in most areas. In this regard, the April 2018 examiner noted that the Veteran suffers from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Here, while the Veteran reports that all his interpersonal relations tend to end because others say that he is bland and reports having no friends presently as he does not fit in with others, the record does not show that he has the inability to establish and maintain effective relationships.  Additionally, the Veteran reported that he is a single parent of his seven year old daughter, completed his AA in criminal justice in December 2017, and was seeking employment. Therefore, the Veteran does not meet the criteria required for a 70 percent rating.

In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify specific levels of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a rating in excess of 50 percent for the Veteran's PTSD is not warranted.

From November 26, 2018 and thereafter 

The Veteran is seeking a higher rating for the period from November 28, 2018 and thereafter. For the period from November 26, 2018 and thereafter, the Veteran is in receipt of a 70 percent rating.

In this case, the Veteran's social and occupational functioning had worsened. However, it was not affected enough to warrant a rating in excess of 70 percent. Specifically, the Veteran did not demonstrate total occupational and social impairment.

The Veteran underwent a VA examination in January 2019.  The examiner noted diagnoses of PTSD, unspecified attention deficit disorder, and adjustment disorder with mixed anxiety and depressive symptoms. The examiner stated that the Veterans ADHD is characterized by problems with inattention, concentration, hyperactivity and his PTSD is primarily characterized by sleep impairments, flashbacks, startling, memories of traumatic events, and avoidance of places. Additionally, the examiner noted that the Veterans adjustment disorder with mixed anxiety and depressive mood is characterized by worry, sleeping difficulties, sadness, and diminished interest in activities. The examiner noted that there can be some clinical overlapping as individuals with PTSD, ADHD, and adjustment disorder with mixed anxiety and depressed mood. The examiner further noted that problems with attention and concentration can be observed in each of these disorders.

The Veteran exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effect, difficulty in adapting, impaired impulse control very flat affect, slow processing in response to questions. The Veteran was oriented x 4 and no observations of thought disorder or passive suicidal thoughts were noted. However, he did not show the total impairment required for a 100 percent disability rating. Specifically, he did not show persistent hallucinations, grossly inappropriate behavior or memory loss to such a severe level that he could not remember the names of others.

Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there is total social or occupational impairment.

Here, the Board finds that such total occupational or social impairment has not been shown. Specifically, at his January 2019 VA examination, he stated that his relationships with others has diminished, both at work and outside of work.  However, he reported that his seven year old daughter lives with him and he continues to see the mother of his two-year old sometimes. Further, he reported that he has worked temporary jobs and is now working for FEMA supervising a crew. As such, there is no indication of the total impairment required for a 100 percent rating.

The Board has also considered the statements that his disability is worse than evaluated. Specifically, he reported that he finds himself "locked inside," is depressed and doesn't want to get out and deal with people. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his acquired psychiatric disability, according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated.

Thus, taking into consideration the evidence of record, the Board finds that a higher disability rating of 70 percent for the Veteran's PTSD for the period from November 26, 2018 and thereafter is denied.  

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica