Citation Nr: 21066817 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-16 249 DATE: November 2, 2021 ORDER An initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from October 24, 2013 to December 10, 2014 and from February 1, 2015 to April 9, 2015 and in excess of 70 percent from April 10, 2015 to October 12, 2016 and from December 1, 2016 and thereafter is denied. FINDING OF FACT From October 24, 2013 to December 10, 2014 from February 1, 2015 to April 9, 2015, the Veteran did not manifest occupational and social impairment with reduced reliability; occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment; and, from April 10, 2015 to October 12, 2016 and from December 1, 2016 to present, the Veteran did not manifest total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for PTSD from October 24, 2013 to December 10, 2014 and from February 1, 2015 to April 9, 2015 and in excess of 70 percent from April 10, 2015 to October 12, 2016 and from December 1, 2016 and thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from March 1972 to March 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in May 2019, and a transcript of the hearing is of record. These matters were previously before the Board, and, in November 2019 and January 2021, the Board remanded these matters for further development. Further development in substantial compliance with the Board's previous remand instructions has been completed. An initial disability rating in excess of 30 percent for PTSD from October 24, 2013 to December 10, 2014 and from February 1, 2015 to April 9, 2015 and in excess of 70 percent from April 10, 2015 to October 12, 2016 and from December 1, 2016 and thereafter is denied. At issue is whether the Veteran is entitled to an increased disability rating for PTSD. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating for PTSD. The Veteran filed a claim for service connection in October 2013, and, in June 2014, the RO granted service connection and assigned a disability rating of 30 percent effective the date the claim was received. The Veteran appealed. During the pendency of the appeal, the Veteran was assigned temporary total disability ratings from December 11, 2014 to January 31, 2015 and October 13, 2016 to November 30, 2016 as well as a permanent disability rating of 70 percent effective April 10, 2015. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings for mental disorders are evaluated pursuant to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a disability rating of 30 percent is assigned when a mental disorder causes 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 such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A disability rating of 50 percent is assigned when a mental disorder causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A disability rating of 70 percent is assigned when a mental disorder causes 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. Id. A total disability rating is assigned when a mental disorder causes 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, General Rating Formula for Mental Disorders. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating, because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. See Mauerhan. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio. The Veteran's treatment records indicate that the Veteran manifested psychiatric symptoms throughout the period on appeal. The Veteran underwent a VA examination on May 23, 2014. The Veteran had been married to his current spouse for approximately 11 years. The Veteran reported that he was currently retired and that on a daily basis he performed household chores and fishing on a lake. The Veteran's symptoms included: recurrent, involuntary, and intrusive memories; chronic sleep disturbances; psychological distress upon exposure to traumatic imagery; efforts to avoid distressing memories, thoughts, and feelings; diminished interest in activities; feelings of estrangement; irritability; hypervigilance; exaggerated startle response; depressed mood; and anxiety. The examiner made the following observations: clear goal-oriented thinking; unremarkable mood or affect; no evidence of suicidality, psychosis, or mania. The examiner did not indicate that the Veteran manifested any deficiencies in judgement. The examiner opined that the Veteran manifested occupational and social impairment with occasional decreased in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behaviour, self-care, and conversation. The Veteran was hospitalized for his psychiatric symptoms on December 11, 2014, and he was released prior to the end of January 2015. The Veteran underwent a private psychiatric evaluation on April 2, 2015. The Veteran reported good relationships with his current spouse as well as his three adult children. The Veteran previously worked as a plumber and a firefighter, but now he was receiving disability payments due to the loss of one of his legs. The provider noted a number of psychiatric symptoms including: rigid thinking, anxious affect, panic attacks, depressive symptoms, and sleep disturbances. The Veteran submitted a disability benefits questionnaire completed by a private provider submitted on April 10, 2015. The Veteran reported some current stress in his marriage. The Veteran also indicated that he had difficulty with out-of-state relationships with his extended family due to a fear of flying associated with his PTSD. The Veteran's symptoms included: recurrent, involuntary, and intrusive memories; chronic sleep disturbances; psychological distress upon exposure to traumatic imagery; efforts to avoid distressing memories, thoughts, and feelings; diminished interest in activities; feelings of estrangement; irritability; hypervigilance; exaggerated startle response; depressed mood; anxiety; suspiciousness; panic; memory loss; flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty understanding complex commands; impaired judgement; impaired abstract thinking; difficulty maintaining work relationships; and inability to establish and maintain effective relationships. The Veteran also claimed that he is attracted to solitary workplaces. The provider opined that the Veteran manifested occupational and social impairment with reduced reliability and productivity. The Veteran underwent another VA examination in March 2016. The Veteran reported that he lived alone with his wife, and that he had contact with his children and grandchildren. The Veteran indicated that he spent time mainly with his family and a friend, but that he tries to avoid crowds. The Veteran indicated that he stopped working approximately eight years ago (approximately 2008) after he became too disabled to work after the loss of one of his legs. The Veteran's symptoms included: anxious mood, hypervigilance, sleep disturbances, markedly diminished interest at social activities, feelings of estrangement, avoidance of distressing memories, avoidance of external reminders of trauma, recurrent involuntary and intrusive distressing memories, and recurrent distressing dreams. The examiner observed that the Veteran's insight and judgment were intact. The examiner did not identify any deficiencies in the Veteran's judgement. The examiner opined that the Veteran manifested occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was hospitalized due to his psychiatric disorder from April 29. 2016 to May 5, 2016. The Veteran was hospitalized again from October 13, 2016 to November 10, 2016. The Veteran testified at a personal hearing before the Board in May 2019. The Veteran indicated that his PTSD had increased in severity. The Veteran described difficulty being in crowds and while flying. The Veteran also indicated that he manifested sleep problems, anxiety, multi-sensory hallucinations/flashbacks, intrusive thoughts, memory problems, and depression. The Veteran testified that he had social relationships with his wife and a friend. See Transcript. The Veteran underwent another VA examination in January 2020. The Veteran indicated that he lives alone with his wife and has contact with his adult children. The Veteran reported that he had a friend who he regularly goes fishing with. The Veteran indicated that he is too disabled to work due to the loss of one of his legs. The Veteran's symptoms included: hypervigilance, sleep disturbances, markedly diminished interest at social activities, feelings of estrangement, avoidance of distressing memories, avoidance of external reminders of trauma, recurrent involuntary and intrusive distressing memories, and recurrent distressing dreams, depressed mood, anxiety, flattened affect, disturbances of motivation and mood, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The examiner opined that the Veteran manifested occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to work. The Veteran underwent a VA examination in April 2021. The Veteran reported that he lives alone with his wife and that he has regular contact with two out of three of his adult children. The Veteran also indicated that he has a friend who he regularly spends time with it. The Veteran claimed that he was unemployed due to the loss of his leg. The Veteran's symptoms included: hypervigilance, sleep disturbances, markedly diminished interest at social activities, feelings of estrangement, avoidance of distressing memories, avoidance of external reminders of trauma, recurrent involuntary and intrusive distressing memories, and recurrent distressing dreams, depressed mood, anxiety, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran manifested occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. The weight of the evidence indicates that the Veteran is not entitled to a total disability rating throughout the period on appeal. In order to meet the criteria for a total disability rating, the Veteran needed to manifest total occupational and social impairment. The Veteran was able to maintain relationships with his wife, most of his adult children, and a friend throughout the period on appeal. Therefore, the Veteran was not totally socially impaired. The Veteran was too disabled to work throughout the period on appeal, but the evidence of record establishes that this was due to a physical disability rather than the Veteran's mental impairment. The Board notes that the Veteran was granted temporary total disability rating throughout the period on appeal. Nevertheless, these were due to periods of hospitalization lasting over 21 days; see 38 C.F.R. § 4.29; rather than a chronic increase of the severity of the Veteran's disability itself. Therefore, they do not warrant assigning a total disability rating following the conclusion of any single period of hospitalization. Finally, the record is silent for a competent medical opinion suggesting that the Veteran manifested total occupational and social impairment. Therefore, the criteria for a total disability have not been met. The weight of the evidence indicates that the Veteran is not entitled to a disability in excess of 70 percent prior to April 10, 2015. In order to meet the criteria for a disability rating of 70 percent, the Veteran needed to manifest occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran was unemployed from the beginning of the period on appeal to April 9, 2015, but, as previously noted, this was due to an unrelated physical disability rather than the Veteran's mental impairment. The Veteran did not attend school from the beginning of the period on appeal to April 9, 2015, but this is normal in light of the Veteran's age. The Veteran was able to maintain family relations including with his wife and adult children. During a May 2014 VA examination, the examiner did not identify any deficiencies in the Veteran's judgement, and the examiner explicitly observed clear goal-oriented thinking and an unremarkable mood. The Veteran underwent a private psychiatric evaluation on April 2, 2015. The provider did observe rigid thinking, but the record is otherwise silent for deficiencies in judgement or mood. Additionally, the record is silent for a competent medical opinion indicating that the Veteran manifested occupational and social impairment with deficiencies in most areas. The Veteran is not entitled to disability rating of 50 percent prior to April 10, 2015. In order to meet the criteria for a disability rating in excess of 50 percent, the Veteran needed to manifest occupational and social impairment with reduced reliability and productivity. The Veteran manifested psychiatric symptoms from the beginning of the period on appeal to April 9, 2015, but the record does not suggest that they resulted in reduced reliability or productivity during this period of time. Additionally, the record is silent for a competent medical opinion suggesting that the Veteran's manifested occupational and social impairment with reduced reliability during this period of time. Therefore, the Veteran does not meet the criteria for a disability rating of 50 percent prior to April 10, 2015. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an increased disability rating for PTSD. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, an increased disability rating for PTSD is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.