Citation Nr: 21070618 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-48 763 DATE: November 24, 2021 ORDER Entitlement to an initial increased rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to December 10, 2019, is granted. Entitlement to an increased rating in excess of 70 percent for PTSD from December 10, 2019, is denied. FINDINGS OF FACT 1. Prior to December 10, 2019, the Veteran's PTSD was manifested by symptoms which most closely approximate occupational and social impairment with reduced reliability and productivity. 2. Since December 10, 2019, the Veteran's PTSD has manifested by symptoms which most closely approximate occupational and social impairment with deficiencies in most areas. 3. The Veteran's PTSD has not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent, but no higher, for PTSD prior to December 10, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.130, Diagnostic Code 9411. 2. The criteria for an increased evaluation of 70 percent, but no higher, for PTSD, since December 10, 2019, haven been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.130, Diagnostic Code 9411. 3. The criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.21, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 2010 to June 2011. The Veteran died in October 2021. The Appellant is the surviving spouse of the Veteran. She has been properly substituted within one year of the Veteran's death and is recognized as a valid substitute appellant. This matter is before the Board of Veterans' Appeal (Board) on appeal from a November 2015 rating decision of the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The November 2015 rating decision assigned an initial rating of 30 percent for the Veteran's PTSD. The Veteran appealed the rating decision, seeking an increased evaluation. In March 2019, the Board remanded the issue for an updated VA examination to determine the severity of the Veteran's symptoms of PTSD. Substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2020, the AOJ issued a rating decision granting an increased evaluation of 70 percent effective December 10, 2019. As this partial allowance did not constitute a full grant of benefits on appeal, the claim remains on appeal and returns to the Board for consideration. A.B. v. Brown, 6 Vet. App. 35 (1993). Treatment records reveal the Veteran continued to work, with no indication that such was less than full time. Accordingly, no claim for a finding of total disability based on individual unemployability (TDIU) in inferred. Rice v. Shinseki, 22 Vet. App. 447 (2009). With respect to Appellant's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Appellant is seeking an increased initial evaluation in excess of 30 percent prior to December 10, 2019, and in excess of 70 percent thereafter, for the Veteran's PTSD. The Veteran's PTSD is rated under the general rating formula for mental disorders 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. 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 worklike setting); inability to establish and maintain effective relationships. 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. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Having carefully considered all the evidence of record, the Board finds that the Veteran's PTSD symptoms meet the criteria for an initial evaluation of 50 percent prior to December 10, 2019, and for a 70 percent disability rating thereafter. In September 2015, the Veteran was afforded an initial PTSD VA examination. He reported symptoms of depressed mood, anxiety, suspiciousness, and disturbances in motivation and mood. Veteran reported recurring nightmares several times per week, avoidance behavior through substance use, hypervigilance of his surroundings along with increased anxiety with loud sounds, and periods of depressed mood. Mental status examination revealed the Veteran to be appropriately and casually dressed, speech was of normal rate and speed, mood was good, and had no signs of audio or visual hallucinations or delusional thinking. He denied suicidal and/or homicidal ideation. He also reported that he had received warning letters from his employer due to frequent use of his sick leave. In a March 2016 Notice of Disagreement (NOD), the Veteran stated that he had severe nightmares and depression was "destroying" his life and civilian career, noting that he worked nights because he was not sleeping well and reported "jumping up scared." In his September 2017 VA Form 9 Appeal to Board, the Veteran stated that he was experiencing panic attacks and an inability to sleep. He stated that he was avoiding his family and friends so they would not see him crying. He also reported being suspended from work due to his symptoms and being unable to complete his personal hygiene. Veteran submitted a copy of a May 2016 notice of suspension from his employer. In December 2019, Veteran was afforded a VA examination for PTSD symptoms. Veteran reported to examiner that he was not receiving mental health treatment. Veteran reported that he was usually depressed, with constant underlying, free-floating anxiety. Veteran had high anxiety when being in public, having to drive far or to an unfamiliar place, and when around strangers. Veteran reported being obsessive compulsive about neatness, order, and checking the locks and all potential points of entry in the house and car. Veteran reported that he felt increasing dread and paranoia that he could be attacked and experienced the sounds of frequent mortar explosions. Veteran reported he felt "dead inside." Veteran told the examiner that he fantasizes about quitting work and had received warnings for taking off too much time from work. Veteran reported that his wife called the police after an episode where the Veteran was hitting his head repeatedly on the floor. The Veteran reported that he had no memory of the incident but did have a black eye and scalp contusions. He also reported that his drinking had worsened, noting that his typical alcohol consumption equaled a half or full case of beer daily. He reported being suicidal when he was very drunk. Veteran's relationships with his wife and daughters were strained, and he reported that he felt his family did not understand his PTSD symptoms. The examiner noted that the Veteran's mood was very depressed, and affect was blunted but broadly congruent to content. Examiner noted several instances of quiet weeping with profuse tearfulness and eyes downcast during the examination. Veteran spoke clearly in coherent, goal directed sentences which were responsive and relevant to context. The examiner noted that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or work like setting, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner noted that the Veteran experienced persistent and exaggerated negative beliefs or expectations about himself, others, or the world; Veteran displayed irritable behavior and angry outbursts with little or no provocation, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The examiner opined that the Veteran's risk of suicide was considered increased but not imminent. The examiner diagnosed Veteran with PTSD to include symptoms of chronic depression and moderate alcohol use disorder. The examiner stated that "it is obvious that vet[ran] does not have any aspects of his daily life in which he is functioning satisfactorily; no aspect of his life is spared the impact of his PTSD and related symptoms." The examiner recommended the Veteran seek counseling and consider psychiatric medication, which the Veteran reported being amenable to for the first time. In October 2020, VA medical treatment records indicate that the Veteran's co-worker brought Veteran to the emergency department because Veteran had presented to work intoxicated. Veteran reported to the examining doctor that he had no prior hospitalizations for psychiatric symptoms, no history of psychiatric medication, and no history of counseling. He told the doctor that he would like assistance with rehab placement. Veteran denied suicidal ideations. After discharge, Veteran was followed via phone for suicide risk management. Prior to December 10, 2019 Prior to December 10, 2019, the Veteran's symptoms more closely approximated the criteria for a 50 percent disability evaluation. The examiner of the September 2015 PTSD examination noted the Veteran's symptoms of depressed mood, anxiety, suspiciousness, and disturbances in motivation and mood. Additionally, Veteran submitted paperwork that he had been suspended from work in May 2016, indicating reduced reliability and productivity due to disturbances of motivation and mood. The medical evidence of record does not indicate that the Veteran experienced suicidal ideation, obsessional rituals which interfered 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; or an inability to establish and maintain effective relationships during this time period. While the Veteran exhibited some difficulty with work during this time period, there is no indication in the medical records that his symptoms were severe enough to cause occupational and social impairment with deficiencies in most areas; therefore, a 70 percent rating, or higher, is not warranted. Since December 10, 2019 As of December 2019, the evidence establishes the Veteran's PTSD symptoms increased in severity and more closely approximated the criteria associated with a 70 percent disability evaluation. The December 2019 examiner noted that the Veteran's symptoms presented as much worse when compared to the September 2015 exam. Examiner opined that Veteran's PTSD with chronic depression was contributing to poor family relations, an inability to function appropriately, and continued reprimands at work for taking leave without notice. Specifically, the Veteran was exhibiting obsessive compulsive about neatness, order, and checking the locks and all potential points of entry in the house and car, poor hygiene, mild memory loss, irritable behavior and angry outbursts with little or no provocation, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbances. Additionally, in October 2020, the Veteran showed up to work intoxicated and VA treatment records indicate that Veteran was at an increased suicide risk. While the Board recognizes that the Veteran had severe impairment related to his PTSD symptoms, the evidence, including the highly probative VA treatment records and VA examination reports, shows that the Veteran's symptoms did not cause total social and occupational impairment. Despite his frequent absences, Veteran had maintained full time employment throughout the period on appeal. Considering the record as a whole, the Board finds a 100 percent rating for total social and occupational impairment is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the preponderance of the evidence is against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107 (b). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.