Citation Nr: 21068796 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-24 135 DATE: November 12, 2021 ORDER Entitlement to a 50 percent rating, but no more, for posttraumatic stress disorder (PTSD) is granted for the period from May 1, 2014 to June 13, 2016. FINDING OF FACT From May 1, 2014 to June 13, 2016, the Veteran's PTSD was not shown to be productive of a disability picture that equates to occupational and social impairment with reduced reliability and productivity; however, the evidence of record does not show that the PTSD during this time period resulted in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to a 50 percent rating, but no more, for PTSD have been met from May 1, 2014 to June 13, 2014. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.40, 4.59, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2000 to July 2004. This matter was last before the Board in October 2020, wherein it denied entitlement to a rating in excess of 30 percent for PTSD prior to June 13, 2016, among other decisions. Following the Veteran's appeal, the Court of Appeals for Veterans Claims (Court) vacated that portion of the October 2020 Board decision that denied entitlement to a rating in excess of 30 percent for PTSD prior to June 13, 2016 and issued a Joint Motion for Partial Remand (JMPR) that remanded the matter back to the Board for action consistent with the terms of the JMPR. Of note, the JMPR explicitly restricted its scope of review to the Board's evaluation of the severity of the PTSD for the period prior to June 13, 2016. As such, the Board's jurisdiction in this regard extends only to that period, and not the period afterwards. The Board notes that it has considered whether a claim for a total rating based on individual unemployability (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in increased rating claims when the issue of unemployability either is raised expressly or by the record. Upon review of the totality of the evidence, the Board does not find that entitlement to TDIU has been raised by the record. As detailed below, the Veteran has expressed that his PTSD symptomatology interferes with his ability to function in his occupation. However, he has also never asserted a belief that his symptoms wholly preclude him from securing and following substantially gainful employment. This is corroborated by the two VA examinations of record, dated in August 2014 and in November 2019, respectively, wherein the VA examiners both found that the Veteran was not precluded from working as due to the symptoms of his PTSD. Furthermore, review of available vocational rehabilitation records shows that the Veteran continued to pursue employment following the loss of job in October 2015, and actually ceased receiving vocational rehabilitation assistance through VA in April 2018 while he was pursuing an advanced degree. In short, although the Board recognizes that the Veteran's PTSD symptomatology does raise some impediments to the Veteran's ability to work, there is no indication from the record that the Veteran is wholly precluded from securing and following substantially gainful employment as due to that symptomatology. Accordingly, a claim for TDIU is not raised by the record, and the Board will not address it. Prior to June 13, 2016, the Veteran's service-connected PTSD was rated as 30 percent disabling. That rating extends back to May 1, 2014, the date of receipt of the Veteran's claim to reopen his previously denied service connection claim. See 38 C.F.R. § 3.400. Pertinently, as this case stems from a claim seeking entitlement to service connection for PTSD, and not an increased rating claim, the period on appeal is limited to the date of the service connection claim. See 38 C.F.R. 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, 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. 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. See 38 C.F.R. § 4.7. The rating at issue was assigned pursuant to the General Rating Formula for Mental Disorders as outlined in 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that General Rating Formula, a rating of 30 percent is warranted if there is 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, or mild memory loss (such as forgetting names, directions, recent events). A rating of 50 percent 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. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is warranted for total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5). When determining the appropriate disability rating to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) 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 a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126. During the appeal period, the Veteran was afforded a VA PTSD examination in August 2014, during which he reported that he enjoyed a stable relationship with his wife with whom he had been married for a year at the time of the examination. According to the Veteran, following service he worked for a shipping company and lost his job due to self-described behavioral outbursts. He detailed that he had been working in his current occupation delivering food and spirits since 2006 and that he appreciated his ability to work independently, as it helped him to avoid interpersonal conflict. After an in-person evaluation, the examiner noted the following symptomatology: depression, anxiety, variable mood swings, panic episodes, sleep disturbances, infrequent flashbacks, ongoing triggers, avoidant behavior, mildly impaired psychosocial functioning, social anxiety, problems tolerating crowds, problems with direct emotional expression, episodic irritability, and hypervigilance. Importantly, the Veteran himself denied experiencing any suicidal or homicidal ideation. The examiner also noted that the Veteran was not actively participating in any psychotherapy but did attend weekly Alcoholics Anonymous meetings. The examiner's impression was that the Veteran's psychosocial functioning was mildly impacted by his PTSD, which was stable. Ultimately, the examiner found that although the Veteran had a diagnosable mental health disability, the symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. A review of available post-service medical records reflects that the Veteran sought out and regularly attended treatment sessions for his PTSD through VA for the entirety of the appeal period, that is, from May 1, 2014 through to June 12, 2016. A November 2014 outpatient note indicates that he denied depression or interrupted sleep, and reported that his main symptom was anxiety, manifested by recurrent panic attacks. The Veteran also denied experiencing any homicidal or suicidal ideation. At the time of the November 2014 evaluation, the Veteran was started on prescription medication. Thereafter, he began attending regular group therapy sessions. A May 2015 outpatient note shows that the Veteran reported experiencing increasing difficulties at work dealing with his anxiety and expressed an intention to seek a new job with the assistance of the VA vocational rehabilitation program. He also noted that he experienced anger associated with his anxiety. An evaluation at that time revealed a dysphoric mood that was moderately agitated secondary to work-related stress. Subsequently, an August 2015 outpatient note reflects that the Veteran reported that he continued to struggle with anxiety and sought out medication to reduce his symptomatology, as his anxiety was interfering with his ability to function at work. A July 2015 behavioral health note shows that the Veteran experienced a panic attack at work after being triggered when a tire blew out while he was delivering goods. Outpatient records dating from October 2015 indicate that the Veteran was let go from his job as a truck driver after requesting an accomodation, which was denied, and then neglecting to renew his commercial driver's license. He checked himself into a psychiatric resident program following his being fired and reported that he experienced significant anger at the event. Subsequent treatment records show that the Veteran renewed his dedication to attending regular therapy sessions, although he remained reluctant to utilize psychotherapeutic drugs during this time. During a December 2015 evaluation he noted that he was experiencing less PTSD symptomatology, to include flashbacks and outbursts of anger, which he attributed to the fact that he was not working. That same month, a vocational assessment reflects that he reported that he believed he could work despite his PTSD symptomatology and attributed the fact that he was let go from his prior employment mainly to a disagreement with his immediate superior. Upon consideration of the record, the Board finds that a rating of 50 percent, but no more, is warranted for the service-connected PTSD for the period from May 1, 2014, the date of claim, to June 13, 2016, the effective date of the grant of the increased 70 percent rating. Specifically, during this time period the Board notes that the Veteran consistently reported experiencing recurrent panic attacks, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. This is most readily evidenced by his self-reporting regarding the anxiety he experienced due to his former job as a truck driver as well as his relationship with his superior in that position. In addition, the Board highlights that the Veteran reported on the August 2014 VA examination that he experienced irritability regularly when interacting with other people, and that he appreciated his former job as a truck driver precisely because he could largely avoid interacting with other people, to include his co-workers. This symptomatology is largely commensurate with the severity of impairment represented by the 50 percent rating. That being said, a rating of 70 percent or even greater is not warranted by the available evidence. To begin, during this specific time period the Veteran largely denied any history of experiencing many of the symptoms that characterize the higher 70 percent rating. Specifically, the Board notes that he did not exhibit suicidal or homicidal ideation, visual or auditory hallucinations, neglect of personal appearance and hygiene, or spatial disorientation. Furthermore, while the Board acknowledges that the Veteran clearly exhibited an impaired ability to establish and maintain effective relationships during this period of time, the Board highlights that the Veteran was married during this time period and did not report any significant difficulties with his spouse. Moreover, the Veteran also endorsed maintaining a relationship with his daughter and engaging in some social activity with extended family and a few friends. It should be further noted that the Veteran reportedly continued to attend regular therapy sessions during this time period both through VA and outside of VA. Undoubtedly, there is evidence that the Veteran experienced some difficulty in adapting to stressful circumstances as well as regular panic or depression which impaired his ability to function independently. Nevertheless, the Board notes that a large majority of VA mental health outpatient records show that his mood and outlook on life largely stayed positive or neutral during this time period with only sporadic episodes of depression or increased anxiety. Finally, although not necessarily applicable to the entirety of the time period of appeal, the Board does highlight that the August 2014 VA examiner found that the Veteran's PTSD symptomatology was not so severe as to significantly impact his occupational functioning or require any medication. In summary, although the Veteran reported or exhibited some of the symptoms specifically listed under the 70 percent rating criteria during the period from May 1, 2014 to June 13, 2016, on balance his symptomatology was most consistent in terms of severity, frequency, and duration to the criteria for the 50 percent rating. As such, the Board finds that an increased rating of 50 percent, but no more, for PTSD is warranted for the period from May 1, 2014 to June 12, 2016. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.