Citation Nr: 21065613 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-32 215 DATE: October 26, 2021 ORDER Entitlement to an initial disability rating greater than 30 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to a disability rating greater than 50 percent for PTSD since June 26, 2019 is denied. FINDINGS OF FACT 1. Between May 24, 2004 and June 26, 2019, the Veteran's PTSD was productive of at most occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Since June 26, 2019, the Veteran's PTSD has been productive of at most occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for PTSD prior to June 26, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 2. The criteria for a disability rating in excess of 50 percent for PTSD since June 26, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army rom December 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in September 2018 and June 2021; both times the matter was remanded for further development. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. To warrant a higher disability rating under 38 C.F.R. § 4.130, the evidence must show or most closely approximate: 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 (50 percent). Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, 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 (70 percent). Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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 (100 percent). The list of symptoms under the rating criteria are examples of symptoms that would warrant the rating, but are not exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under 38 C.F.R. § 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). However, that is not the case where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Separate ratings may be assigned for separate periods of time based on the facts founda practice known as "staged rating". Fenderson v. West, 12 Vet. App. 119, 126 (1999). Here, the Veteran was service connected for PTSD with a 30 percent disability rating, effective May 24, 2004 (the date of the claim). See June 2, 2015 Rating decision. The Veteran has continuously expressed dissatisfaction with that initial rating since its assignment. 1. Entitlement to an initial disability rating greater than 30 percent for post-traumatic stress disorder (PTSD) is denied The record reveals that, prior to June 26, 2019, the Veteran's PTSD symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. While the record reflects suicidal and homicidal ideation in 2002, most in keeping with a 70 percent rating, by April 2003 and continuing to the present the Veteran's record consistently reflected a lack of both (with the exception of one notation in July 2006). See, e.g., 4/18/2019 CAPRI; 6/2/2020 CAPRI; 8/4/2021 C&P Examination. Because the Veteran's suicidal and homicidal ideation predates the claim by approximately two years and, the one notation during the period on appeal is not of the frequency or duration contemplated by a 70 percent rating, the Board does not find the Veteran entitled to a 70 percent rating for this period based on suicidal ideation. Instead, from the date of the claim in May 2004 to June 26, 2019, the Veteran experienced impairment primarily in two of the six relevant areas (i.e., work, school, family relations, judgement, thinking, or mood). Namely, the Veteran experienced impairment in thinking and mood. He consistently endorsed depressed and anxious mood without panic attacks, irritability, and sleep impairment. Id. During the aforementioned period, the Veteran attested to a good relationship with his wife, children, and grandchildren. See, e.g., 5/11/2011 VA Examination; 4/18/2019 CAPRI. Thus, his family relationships are deemed intact and unobstructed. Furthermore, although the Veteran endorsed isolative behavior, he also reported time spent with high school friends, reflective of long-term relationship maintenance. See 12/20/2019 CAPRI; 6/2/2020 CAPRI. Between May 2004 and June 26, 2019, the Veteran's memory remained intact and there was no record of negative impact on school or work. Thus, the Board finds the Veteran entitled to a disability rating of no more than 30 percent for PTSD during the relevant period. 2. Entitlement to a disability rating greater than 50 percent since June 26, 2019 is denied Beginning on June 27, 2019, the record reveals that the Veteran's PTSD symptoms became productive of occupational and social impairment with reduced reliability and productivity. The Veteran began to endorse poor recent memory and impulse control along with a continuation of previous symptomology at that time. See 6/2/2020 CAPRI. There is no record of work or school performance being impacted by the Veteran's mental health symptoms; he was consistently well-groomed, and the record does not reflect any incidence of obsessional rituals. See, e.g., 4/18/2019 CAPRI; 6/2/2020 CAPRI. Additionally, the record does not reflect, nor did the Veteran report, grossly inappropriate behavior, gross impairment in thought process or communication, disorientation to time or place, extreme memory loss, spatial disorientation, intermittently illogical speech, or any other symptoms of similar severity, frequency, or duration as contemplated by the higher 70 percent or 100 percent ratings. As such, neither a 70 percent nor a 100 percent rating for the Veteran's PTSD is warranted. Finally, in the August 2021 VA examination the examiner opined that the Veteran's PTSD is currently in partial remission and not severe enough to either interfere with occupational and social functioning or to require continuous medication. Thus, the Board finds the Veteran entitled to a disability rating of no more than 50 percent for PTSD since June 26, 2019. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.