Citation Nr: 21069240 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-33 239 DATE: November 17, 2021 ORDER Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) prior to September 4, 2018, is denied. Entitlement to a 70 percent rating, but no higher, for PTSD since September 4, 2018, is granted. FINDINGS OF FACT 1. Prior to September 4, 2018, the preponderance of the evidence is against finding that the Veteran's PTSD had manifested with symptoms that more closely approximates the criteria for a rating higher than 50 percent. 2. Since September 4, 2018, the Veteran's PTSD has manifested with symptoms that more closely approximates the criteria for a 70 percent rating. 3. The preponderance of the evidence is against finding that the Veteran's PTSD has manifested with symptoms that more closely approximates the criteria for a rating higher than 70 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 50 percent for PTSD prior to September 4, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a 70 percent rating, but no higher, for PTSD since September 4, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to September 2009. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2014 rating decision issued by the Department of Veterans Affairs (VA). See October 2014 Notice of Disagreement (NOD); September 2015 Statement of the Case (SOC); September 2015 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a September 2018 hearing. See September 2018 Hearing transcript. In August 2019, the Board remanded the claim to afford the Veteran the opportunity for a more recent VA examination to evaluate his PTSD. August 2019 Board Decision. In November 2020, the Board remanded the claim again to afford the Veteran another opportunity for a VA examination. November 2020 Board Decision. The agency of original jurisdiction (AOJ) granted the Veteran entitlement to a 70 percent rating for PTSD, effective November 20, 2020. June 2021 Rating Decision. The AOJ continued the denial of entitlement to a rating higher than 50 percent prior to November 20, 2020, and to a rating higher than 70 percent. June 2021 Supplemental Statement of the Case (SSOC). Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings" may be awarded when the factual findings show distinct time periods where the service connected disability exhibited symptoms that would warrant different ratings. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's PTSD is currently evaluated under Diagnostic Code 9411 and rated as 30 percent disabling from October 1, 2009; 50 percent disabling from November 12, 2013, to November 20, 2020; and 70 percent disabling from November 20, 2020. June 2021 Rating Decision. Under Diagnostic Code 9411 and the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for a mental disorder that manifests with 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. The next higher 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; and difficulty in establishing and maintaining effective work and social relationships. Id. The next higher rating of 70 percent is warranted 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 worklike setting); and inability to establish and maintain effective relationships. The next higher, and highest, rating of 100 percent is warranted 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; and memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 1. Entitlement to a rating higher than 50 percent for PTSD prior to September 4, 2018. After careful and thorough consideration of the evidence, the Board finds that the Veteran's PTSD had manifested with symptoms that more closely approximates the criteria for a 50 percent rating prior to September 4, 2018. The Veteran's medical treatment records are against finding that his PTSD warrant greater than a 50 percent rating prior to September 4, 2018. The Veteran sought mental health treatment in 2017. The Veteran reported problems with anxiety, depression, and PTSD symptoms due to an issue at work. April 2017 VA treatment evidence. He reported symptoms that include depressed mood most of the day for four days a week; sitting on the couch for hours and having to push himself to engage in positive activities; gaining 25 pounds in the last few months; sleeping four hours a night; some psychomotor retardation/agitation; anger/irritability; intrusive thoughts; avoidance behavior; negative beliefs about himself; distorted cognition about blame; hypervigilance; had at least one past incidence of derealization; nausea of abdominal distress; and agoraphobia; . Id. The Veteran did not report having problems with concentration, current suicidal ideation, or psychotic symptoms. Id. The Veteran was observed to have good grooming, normal speech, polite, and orientated. Id. A treatment note two months later shows that he is still coping with problems at work, but continues to have good grooming, normal speech, no hallucinations, good concentration, and no suicidal or homicidal ideation. June 2017 VA treatment evidence; July 2017 VA treatment evidence. The Veteran's treatment records contain a detailed report of his mental health symptoms over time, which the Board finds to be highly probative. The Veteran was also afforded a VA examination for his PTSD prior to September 4, 2018. The VA examiner opined that the Veteran's PTSD manifested with occupational and social impairment warranting a 30 percent rating. See November 2013 VA examination for PTSD. The VA examiner found symptoms such as recurrent and distressing recollections; distressing dreams; acting or feeling as if traumatic event were recurring; intense psych distress; physiological reactivity; avoidance behavior; marked diminished interest in activities; feelings of detachment/estrangement; problems sleeping; irritability or outbursts of anger; difficulty concentrating; hypervigilance; depressed mood; anxiety; suspiciousness, weekly or less panic attacks; disturbance of mood and motivation; difficulty adapting to stressful circumstances; an inability to establish/maintain effective relationships; and obsessional rituals. Id. However, examiner's finding that the Veteran's PTSD caused an inability to establish and maintain effective relationships is inconsistent with the Veteran's report that his relationship problems with his daughter is due to her age and not his psychiatric symptoms. See id. The Veteran also reports having a relationship with his wife, albeit "rocky." Id. The findings are also inconsistent with the VA examiner's opinion that the Veteran's symptom would warrant only a 30 percent rating. See id. For these reasons, the Board finds the November 2013 VA examiner's findings not probative. The Board also considered the statements from the Veteran and his spouse. September 2018 Hearing Transcript. While the Veteran is competent to report having mental health symptoms, and his wife is competent to report her behavioral observations, they are not competent to state whether the Veteran's symptoms warrant a specific rating under the Schedule for Rating Disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For example, the Veteran contended that an 80 percent is warranted for his PTSD, but the General Rating Formula for Mental Disorders does not allow for an 80 percent rating. See 38 C.F.R. § 4.130; October 2014 NOD. His spouse's testimony about hypervigilance, irritability, fear that he may hurt someone because he is on guard, and not having a good relationship with his daughter is probative, but does not suggest the symptoms are to the level of having near-continuous panic attacks, unprovided irritability with periods of violence, and an inability to establish and maintain effective relationships. While she testified that Veteran is tense when she hugs him, she still provided him support at the hearing. As for the Veteran's testimony about having obsessional rituals that interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; and difficulty in adapting to stressful circumstances, including work and work-like setting; this is inconsistent with his reported symptoms to his treatment providers and their reported observations. In weighing and balancing the veracity of the Veteran's statements, the Board finds that the statements of the Veteran made to his health care providers to be more probative than his later testimony. The earlier statements were made contemporaneous to the event which cause him to seek medical treatment, and was made in the process of seeking that treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Based on the more probative lay and medical evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran's PTSD symptoms manifested with symptoms that warrant more than a 50 percent rating. Accordingly, entitlement to a 70 percent rating prior to September 4, 2018, is not warranted. 2. Entitlement to a 70 percent rating, but no higher, for PTSD since September 4, 2018. The Veteran is currently entitled to a 70 percent rating for his PTSD, effective November 20, 2020. June 2021 Rating Decision. After careful and thorough review of the evidence, the Board finds that the Veteran's PTSD has manifested with symptoms that warrant a 70 percent rating since September 4, 2018. The Veteran was afforded a November 2020 VA examination for PTSD. The VA examiner found symptoms such as intrusive thoughts, distressing dreams, intense psychological distress when exposed to cues of traumatic events, marked psychological reactions to cues, avoidance behavior, persistent and exaggerated negative beliefs or expectations, persistent distorted cognitions, persistent negative emotional state, marked diminished interest in activities, feelings of detachment, inability to experience positive emotions, irritable behavior and angry outbursts with little or no provocation, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. Id. The VA examiner also found the Veteran to have symptoms of depressed mood, anxiety, suspiciousness, weekly or less panic attacks, chronic sleep impairment, mild memory loss, disturbances of mood and motivation, inability to establish and maintain effective relationships, suicidal ideation, and difficulty adapting to stressful circumstances. Id. While the Veteran reports isolating and withdrawing from people, the VA examiner's finding that the Veteran has an inability to establish and maintain effective relationships is inconsistent with the Veteran's report to the VA examiner that he still has a few friends and a relationship with his spouse and daughter, albeit negatively impacted by his PTSD symptoms. See id. This suggests a difficulty with, but not inability, in establishing and maintaining effective relationships. The examiner's finding that he has difficulty adapting to stressful circumstances is also inconsistent with the Veteran's report of currently being a medical officer and trying to be outgoing, even though it is hard for him, because he feels it is part of his job. November 2020 VA examination for PTSD. This shows that the Veteran is adapting to his unfortunate situation at work. The inconsistencies limit the probative value of these specific findings. The November 2020 VA examiner's other findings are probative in evaluating the Veteran's PTSD disability as they are consistent with the evidence and provided by a medical professional qualified to evaluate the Veteran's mental health symptoms. The Board recognizes that the November 2020 VA examiner opined that the Veteran has occupational and social impairment with reduced reliability and productivity, which suggest his PTSD warrants only a 50 percent rating. However, the VA examiner's other findings and the Veteran's report of having suicidal ideation suggest a 70 percent rating is warranted for the period at least beginning November 20, 2020, the date of the VA examination. The Board also considered the Veteran's testimony during his September 2018 Board hearing. The Veteran testified to missing work due to his PTSD symptoms; having obsessional rituals that interfere with routine activities; intermittent illogical, obscure, or irrelevant speech; near continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; and difficulty in adapting to stressful circumstances, including work and work-like setting. September 2018 Hearing Transcript. However, the medical evidence, including the VA examinations, noted normal speech or cooperative behavior. See, e.g., June 2017 VA treatment evidence; November 2020 VA Examination for PTSD. The Veteran was also able to provide clear testimony in support of his claim during the September 2018 Board hearing. His spouse testified that she feared the Veteran may injure someone if he was in a crowd, but there no evidence in the record that he has actually acted violently toward others. See id. The evidence also shows that the Veteran was routinely noted to have good grooming and hygiene. See, e.g., June 2017 VA treatment evidence; July 2017 VA treatment evidence. This evidence raises a reasonable doubt as to whether the Veteran's reported worsening symptoms, which resulted in providing the Veteran a November 2020 VA examination for PTSD that supports a 70 percent rating, had manifested at the time of the September 2018 Board hearing. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's PTSD had manifested with symptoms such as intrusive thoughts, avoidance behavior, persistent and exaggerated negative beliefs or expectations, persistent distorted cognitions, persistent negative emotional state, marked diminished interest in activities, feelings of detachment, inability to experience positive emotions, irritable behavior and angry outbursts with little or no provocation, hypervigilance, problems with concentration, and sleep disturbance, weekly or less panic attacks, mild memory loss, disturbances of mood and motivation, difficulty establishing and maintaining effective relationships, and suicidal ideation. The Board finds that this evidence more closely approximate the criteria for a 70 percent rating for the period since September 4, 2018. The Board considered whether the next higher rating of 100 percent is warranted for the Veteran's PTSD. The evidence is against finding that the Veteran's PTSD has ever manifested with gross impairment in thought process or communication, or in memory loss for names of close relatives, his own occupation, or his own name. As noted above, the Veteran is currently working a medical officer. The Veteran related to his treatment providers that he had concerns about his memory, but it was because he felt he used to have almost photographic memory and is now not as sharp. April 2017 VA treatment evidence. There is no evidence of symptoms such as persistent delusions or hallucinations, or grossly inappropriate behavior. See, e.g., November 2020 VA Examination for PTSD. The Veteran recently reported having passive suicidal thoughts to the November 2020 VA examiner, but there is no evidence that he is a persistent danger to himself or others. The Veteran has also been routinely noted as having good grooming and hygiene. See, e.g., April 2017 VA treatment evidence; June 2017 VA treatment evidence. This evidence is highly probative against finding that he has total occupational and social impairment. (Continued on next page) Accordingly, the Boards finds that a 70 percent rating, but no higher, for the Veteran's PTSD is warranted since September 4, 2018. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.