Citation Nr: 21065330 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-15 939 DATE: October 25, 2021 ORDER A higher 70 percent rating, though no greater, for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is granted retroactively effective from May 18, 2017, subject to the statutes and regulations governing payment of retroactive compensation. FINDING OF FACT Since May 18, 2017, the Veteran's PTSD with MDD has caused what amounts to occupational and social impairment with deficiencies in most areas, though not total occupational and social impairment. CONCLUSION OF LAW Since May 18, 2017, the criteria are met for entitlement to a higher 70 percent rating, though no greater, for the PTSD with MDD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1996 to April 2006. This appeal to the Board of Veterans' Appeals (Board) is from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, in relevant part, the Board denied a rating higher than 50 percent for the Veteran's PTSD with MDD since May 18, 2017. He appealed the Board's decision to the U. S. Court of Appeals for Veteran's Claims (CAVC/Court). In a November 2019 Order, the Court vacated the portion of the Board's decision denying this claim and remanded it back to the Board for further development and readjudication pursuant to agreement in a Joint Motion for Partial Remand (JMPR). To comply with the JMPR, the Board, in turn, remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) in June 2020. In an October 2020 decision since issued, the Board again denied a rating higher than 50 percent since May 18, 2017 for the PTSD with MDD and, in response, the Veteran again appealed the Board's decision to the higher Court (CAVC). In a July 2021 Order, the Court vacated the Board's more recent decision pursuant to agreement in another JMPR. Specifically, in this JMPR, the parties agreed that Board had erred by not discussing whether the Veteran was entitled to a "staged" rating, especially since there are multiple conceded episodes in 2017 demonstrating that he displayed irritability and angry outburst. As an initial point of clarification, the rating for the Veteran's mental disorder already has been "staged" since it was rated as 30-percent disabling prior to May 18, 2017 and has been rated higher as 50-percent disabling, since. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (explaining that a rating is "staged" to compensate a Veteran for occasions when it is shown the disability was more severe than at others; this difference in rating, over time, compensates him for this variance). Also, one of the Board's prior decisions during the pendency of this appeal considered whether a rating higher than 30 percent was warranted prior to May 18, 2017. See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (extending this practice to established ratings, so not just initial ratings). A higher 70 percent rating, though no greater, is granted for the PTSD with MDD since May 18, 2017. Disability ratings are determined by application of a Rating Schedule that is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by DCs and then combined for an overall rating. 38 C.F.R. §§ 4.25, 4.27. The degrees of disability specified in the Rating Schedule are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability or the same manifestation of a disability under different DCs, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's PTSD with MDD is rated under 38 C.F.R. § 4.130, DC 9411. Mental disorders other than certain eating disorders are rated under a General Rating Formula for Mental Disorders. And, according to this General Rating Formula, a 50 percent rating is warranted 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. A 70 percent rating is warranted when there is 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 an inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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. The list of symptoms under the rating criteria are meant to be mere examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, 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, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons and bases for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit Court has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, regarding this claim. The Veteran contends that he is entitled to a rating higher 50 percent for his PTSD with MDD for the period since May 18, 2017 that is still under consideration. In May 2017, the Veteran underwent a VA examination. The VA examiner noted the Veteran had irritable behavior and angry outbursts with little or no provocation, typically expressed as verbal or physical aggression toward people or objects. In a contemporaneous May 2017 VA treatment note, the Veteran reported that, while attending a graduation, he felt frustrated at being in a crowd, the lack of order, and the constant noise in the crowd. As a result, he had an angry outburst against his mother and wife on the car ride home. To prevent another outburst, he reported that he has been isolating himself. In a July 2017 VA treatment note, the Veteran indicated that he noticed he was increasingly irritable with his family at times. The evaluating VA psychologist noted the Veteran continued to have issues with increased irritability. A November 2018 VA treatment noted indicates the Veteran reported being "hypervigilant" which he described as being fearful of something happening and not being able to stay safe. He also indicated problems with focusing, not following through with task completion, and keeping sustained attention while reading. He added that he becomes frustrated since he is unable to complete tasks as before and wants to optimize time management. It was noted that he had symptoms of avoidance behaviors, intrusive memories, was easily startled, problems with concentration, difficulty with sleep, irritability, and alteration in cognition and mood. During a February 2019 VA examination, the VA examiner reported the following symptoms associated with the Veteran's PTSD with MDD: recurrent distressing memories, avoidance behaviors, diminished interest in activities and feelings of detachment, hypervigilance, sleep disturbance, anxiety, chronic sleep impairment, flattened affect and disturbances of motivation and mood. It was noted that his short- and long-term memory were within normal limits. The examiner opined that the Veteran can function independently and that, while his symptoms affect his ability to interact with others and tolerate an environmental stressor, they do not preclude such interactions. The examiner surmised the mental disorder caused occupational and social impairment with reduced reliability and productivity. According to a January 2021 psychiatrist note, the Veteran's mother was concerned about his anxiety and nervousness. She also was concerned about not being able to ride in the car with him due to him being easily agitated and always on edge. The Veteran reported that his anger, anxiety, and quick temper made his children turn against him. When considering this collective body of relevant evidence, including the clinical findings and the Veteran's competent and credible statements, also those of his mother and others in the know, his symptoms and impairment overall more nearly approximate occupational and social impairment with deficiencies in most areas, so commensurate with a higher 70 percent rating since May 18, 2017. The Veteran endorsed irritable behavior and angry outbursts with little or no provocation according to the report of his May 2017 VA examination. This behavior was again observed in a May 2017 VA treatment note when he had an anger outburst in a car ride home. Subsequent VA treatment notes affirm he had increased irritability even with his family and, as pointed out in the January 2021 treatment note, he indicated that his anger, anxiety, and quick temper made his children turn against him. It additionally is worth mentioning that "impaired impulse control" only appears in the 70 percent rating criteria, which indicates an increased severity and degree of actual effects of the Veteran's psychiatric symptom on his occupational and social situation. See Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). The criteria for a 70 percent rating require "deficiencies in most areas", not total occupational and social impairment, which instead are the requirements for an even higher 100 percent rating. The Veteran is not, however, entitled to this even higher 100 percent rating because he does not have this required total occupational and social impairment, such as owing to grossly inappropriate behavior. His thought content has not been obsessive, delusional, or impaired to reality. He does not have significant memory loss for names of close relatives, own occupation, or own name, and he does not have intermittent inability to perform activities of daily living (ADLs), including maintenance of minimal hygiene. His treatment records also repeatedly have shown that he has denied having suicidal or homicidal ideation. Thus, he has what amounts to 70 percent impairment rather than 100 percent (total) impairment. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.