Citation Nr: 21065329 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-42 033 DATE: October 25, 2021 ORDER Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT PTSD has manifested in symptoms such as anxiety, depressed mood, chronic sleep impairment, disturbances of motivation and mood, irritability (not resulting in violence), and difficulty in establishing and maintaining effective work and social relationships, all resulting in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to February 1971. The claim currently before the Board originates from a June 2015 Rating Decision. In a subsequent July 2018 Rating Decision, the Veteran's evaluation was increased from 10 percent to 50 percent, effective February 11, 2015. The Veteran appeared at a Board hearing in February 2021; a transcript is of record. During the Board hearing, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claim. The actions of the Veterans Law Judge supplement the Veterans Claims Assistance Act (VCAA) and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD is currently assigned an initial 10 percent evaluation under Diagnostic Code 9411, effective September 10, 2013, and a 50 percent evaluation, effective February 11, 2015. The Veteran has challenged the second evaluation, specifically requesting an increased rating. Diagnostic Code 9411 pertains specifically to the primary diagnosed disability in the Veteran's case (PTSD). In any event, with the exception of eating disorders, all mental disorders including PTSD are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. The criteria for a 50 percent rating are as follows: 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. The criteria for a 70 percent rating are as follows: 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); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% 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. Pursuant to relevant law and regulation, the DSM-5 applies to this appeal. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Thus, the Board will not use previously recorded GAF scores to determine the appropriate evaluation for the Veteran's PTSD. Golden v. Shulkin, 29 Vet. App. 221 (2018). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25. However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. The Veteran was afforded a VA compensation and pension examination in June 2015. The VA examiner concluded that Veteran had "[o]ccupational 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 VA examiner concluded that some of the Veteran's occupational and social impairment was due to a depressive disorder. The examiner found that the depressive disorder was "mild" and related to physical health decline due to aging. The VA examiner also stated that the Veteran "has never attempted suicide. He stated that he does not have any active plans to harm himself but has passive thoughts of death. He stated that he worries about death. He noted no homicidal thoughts." The VA examiner stated that the Veteran "stated that he has lost 2 friends recently which has caused depression symptoms to increase, along with physical health changes, which have also caused symptoms of depression to increase. [The Veteran] continues to express mild symptoms of posttraumatic stress disorder where he was involved in events where his life was threatened." A June 2016 VA examination found that the Veteran's depression screening was positive. Suicidal ideation was negative. The Veteran reported PTSD symptoms of numbness, irregular reactions to "normal" feelings, and emotionally feeling irregular. In a November 2016 medical record, the Veteran reported occasionally drinking. In a December 2016 medical record, he reported that he thinks about "the ones that got killed." He reported not wanting to look at Army photographs and expressed a desire to be alone than going to places. The Veteran reported PTSD symptoms of numbness, nonreaction to "normal" feelings, and anger in September 2017. In September 2018, the Veteran reported increased anxiety due to his health and his wife's health. A November 2018 VA examination categorized the Veteran's depression as "mild." The examiner noted that the Veteran reported medical difficulties with family members. The Veteran denied suicidal ideation and was assessed as not a substantially elevated risk for self or other-directed violence. In March 2019, the Veteran expressed depression due to frustration with the increased use of technology as opposed to live, in-person conversations. The Veteran reported stressors involving his wife's health and other personal family matters. A January 2020 medical report noted that the Veteran expressed concern over his depression and PTSD. The Veteran noted concern with the health of family friends and his son. The Veteran specifically noted the declining health of people his age and his friends. An April 2020 medical report noted that the Veteran's PTSD was stable. A May 2020 medical report noted that the Veteran reported a stable mood and trauma symptoms since the last encounter. The Veteran denied suicidal and homicidal intent. The Veteran testified at a February 2021 hearing. Notably, the Veteran's spouse was also present at the hearing. She noted that the Veteran could sometimes be difficult to reason with, had random, sometimes overreactive, bouts of anger, and impulsive decision making. The Board has reviewed other relevant medical records during this time period. After a review of the medical and lay evidence of record, an evaluation of 50 percent is warranted for this period on appeal. The evidence suggests that the Veteran's symptomatology has more nearly approximated occupational and social impairment associated with a 50 percent disability rating. In other words, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent. Neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation, nor does it demonstrate deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board has considered the VA treatment records, including all VA examination reports, the private psychological assessments, and lay statements regarding the impact of the Veteran's PTSD on his occupational and social impairment. During the entire period, the Veteran reported depressed mood, anxiety, sleep impairment, mild memory loss, disturbances of motivation and mood, irritability, and difficulty in establishing and maintaining effective work and social relationships. It is documented that the Veteran has struggled with social interactions and tends to isolate himself. However, he maintains a strong relationship with his wife and spends some time socializing with others. There is no evidence of an inability to establish and maintain effective relationships. The Board finds that the degree to which the Veteran's PTSD inhibits his social relationships is consistent with the criteria of a 50 percent evaluation. Furthermore, there is no reference to physical violence, suicidal ideation, or homicidal ideation in any VA examination report, VA treatment record, or additional evidence submitted by the Veteran. There is no indication of violence or obsessional rituals interfering with routine activities. In addition, there is no indication of near continuous panic or depression affecting the Veteran's ability to function independently. To the extent that the Veteran has difficulty concentrating, the preponderance of the evidence suggests that there is not abnormal speech or disorientation. The preponderance of the evidence indicates that there are no obsessional rituals, abnormal speech, near-continues panic or depression, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, or neglect of personal appearance or hygiene to the extent contemplated under the 70 percent rating criteria. The Board notes that the Veteran's representative has argued that the Veteran's depressive disorder or symptoms currently associated with his depressive disorder are related to his PTSD. Regardless, the overall manifestations due not approximate that required for a higher evaluation. Nothing in the record suggests symptoms such as near continuous panic or depression affecting functioning. There is an absence of impaired impulse control, spatial disorientation or neglect of hygiene or personal appearance. He does not have deficiencies in most areas. Furthermore, there is no suicidal ideation. Thus, the Board finds that the Veteran does not have occupational and social impairment, with deficiencies in most areas at any time during the period on appeal. He does have some deficiencies, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 50 percent rating assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the now assigned 50 percent schedular rating. To the extent that the Veteran has any of the criteria for a 70 percent rating or a 100 percent evaluation, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 50 percent rating. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, Associate Counsel 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.