Citation Nr: 21066845 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-26 113 DATE: November 2, 2021 ORDER Entitlement to a disability rating in excess of 30 percent prior to November 17, 2018 for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The overall evidentiary record shows that the severity of the Veteran's PTSD most closely approximated the criteria for a 30 percent disability evaluation prior to November 17, 2018. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent prior to November 17, 2018, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1971 to October 1972, to include service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The RO, in pertinent part, granted service connection and an initial 30 percent rating for PTSD, effective June 2, 2010. This case was previously before the Board in April 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ increased the rating for PTSD to 50 percent, effective November 17, 2018. In a July 2019 appellate brief, the Veteran's representative indicated that the Veteran was not disputing the assigned 50 percent rating, but was seeking to have that rating begin on June 2, 2010. Accordingly, the Board will limit its consideration to that issue. The issue was previously denied by the Board in August 2019. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Memorandum Decision, the Court set aside the Board's August 2019 decision, and remanded the case for compliance with instructions provided in the Memorandum Decision. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. For VA purposes, when there is an approximate balance in the evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue is given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The U.S. Court of Appeals for Veterans Claims (Court) held that a claimant is only required to demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court further pointed out that, "to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to a disability rating in excess of 30 percent prior to November 17, 2018 for posttraumatic stress disorder (PTSD) The Veteran contends he is entitled to a rating in excess of 30 percent prior to November 17, 2018, due to the symptoms from PTSD. Specifically, the Veteran stated that he has difficulty understanding complex commands, impairment of short-term and long-term memory, nightmares, lack of motivation, social isolation, and panic attacks more than once per week. See May 2014 VA Form 9. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2018). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). The relevant rating criteria for determining when entitlement arose for PTSD are as follows: A 30 percent rating is assigned for 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). 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 work-like setting); inability to establish and maintain effective relationships. Id. 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a) (2016). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). On appeal, the Court concluded that the Board failed to perform a "holistic analysis" in the August 2019 Board decision and did not adequately perform an analysis of the frequency or duration of the appellant's symptoms due to PTSD. The following analysis shows whether any increased rating is warranted for the period from June 2, 2010 to November 17, 2018 based on what date the increased rating is factually ascertainable. Prior to November 17, 2018 Following a complete review of the appellate record, the Board finds that the Veteran's psychiatric symptoms have not caused the level of impairment required for a disability rating of 50 percent or higher during the period on appeal. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. At the May 2011 VA examination, the Veteran was diagnosed with PTSD due mainly to sleep disturbances and anxiety. The examiner noted that the Veteran was retired because he had sufficient time on the job, but PTSD symptoms would not impair occupational functioning. The examiner noted symptoms such as nightmares, intrusive memories, impaired concentration, sleep disturbance, social avoidance and isolation, chronic anxiety and tension. This analysis most closely approximates a 30 percent disability rating. VA treatment records of April 2014 show the Veteran presented with intrusive memories, nightmares, suspiciousness, and intermittent panic attacks. His thought process was logical and goal-directed. He denied any illusions or hallucinations, irrational thoughts, obsessions, suicidal, or homicidal thoughts. The examiner noted the Veteran's insight and judgment was fair. During the Veteran's group counseling sessions, he is consistently noted as participating appropriately, and being an engaging and helpful member of the group. The May 2014 VA treatment note states the Veteran was calm, maintained stability in mood and conduct, and was assessed as having mild impairment. See May 2014 VA treatment record. Similarly, the June 2014 VA treatment record reveals the Veteran's difficulty sleeping and relaxing, with panic attacks at times. There is no mention as to the frequency or duration of these panic attacks. The Veteran was alert and cooperative, with normal attention span and cooperation with no suicidal or homicidal ideations, hallucinations, or paranoid ideations. The Veteran was appropriately groomed, with normal speech, insight and judgment, and thought content. In August 2014, the Veteran stated he had no recent panic attacks. His affect was assessed as calm and mildly constricted. His thought process was linear, and mostly goal directed. He had no delusions, impaired judgment, or impaired thought content. In March 2016, the Veteran presented with normal thought process, memory, and judgment. His general appearance, insight and fund of knowledge was assessed as good. He had normal gait, speech, and judgment. His memory was noted as grossly intact. In assessing the Veteran's mental ability, VA treatment records have consistently rated his level of understanding as "Good." See e.g. June 2016; October 2016; January 2017 VA treatment records. In March 2017, the Veteran endorsed hyperarousal and hypervigilance- avoids crowds. Here, the Veteran had no delusions, impaired judgment, or impaired thought content. His thought process was linear, and mostly goal directed. He had normal speech and judgment and denied depressed mood. The same clinical picture was reflected in May 2017 and August 2017. Notably, the Veteran's memory has always been rated as "Grossly intact". Although the Veteran reported forgetting the name of his grandson, mild memory loss (such as forgetting names, directions, recent events) is contemplated by the 30 percent disability rating. In toto, the vast evidence of record most closely approximates the 30 percent disability rating. (Continued on the next page) The next higher, 50 percent rating, is not demonstrated by the evidence of record, as the Veteran's psychiatric disorder was not manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: circumstantial, circumlocutory or stereotyped speech, 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, and difficulty in establishing and maintaining effective work and social relationships. Id. On appeal to the Board, the Veteran stated that he mentioned all of his symptoms to his psychiatrist, Dr. X. Upon a thorough review of these records, at no point did the Veteran present with flattened affect, stereotyped speech, panic attacks more than once per week, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective work and social relationships. No examination of record or VA treatment notes symptoms such as flattened affect, difficulty understanding complex commands, grossly inappropriate behavior, or near continuous panic or depression affecting the ability to function independently. Overall, the Veteran presented with anxiety, sleep disturbances, and hypervigilance, which is contemplated by the 30 percent disability rating. As such, a higher disability rating is not warranted and the claim seeking a higher rating prior to November 17, 2018 must be denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. 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.