Citation Nr: 21071175 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 17-14 151 DATE: November 30, 2021 ORDER For the initial rating period on appeal from December 23, 2014 to December 1, 2015, a higher initial disability rating in excess of 30 percent for the service-connected posttraumatic stress disorder and major depressive disorder (PTSD) is denied. For the initial rating period on appeal from December 1, 2015 to January 4, 2020, a higher initial disability rating of 50 percent, but no higher, for the service-connected PTSD is granted. For the initial rating period on appeal from January 4, 2020, onward, a higher initial disability rating in excess of 70 percent for the service-connected PTSD is denied. FINDINGS OF FACT 1. For the initial rating period on appeal from December 23, 2014 to December 1, 2015, the severity, frequency, and duration of the service-connected PTSD symptomatology most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability perform occupational tasks, and did not more nearly approximate occupational and social impairment with reduced reliability and productivity. 2. For the initial rating period on appeal from December 1, 2015 to January 4, 2020, the severity, frequency, and duration of the service-connected PTSD symptomatology most nearly approximated occupational and social impairment with reduced reliability and productivity, and did not more nearly approximate deficiencies in most areas. 3. For the initial rating period on appeal from January 4, 2020, onward, the severity, frequency, and duration of the service-connected PTSD symptomatology most nearly approximated deficiencies in most areas, and did not more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. For the increased rating period on appeal from December 23, 2014 to December 1, 2015, the criteria for an initial disability rating of greater than 30 percent for the service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411-9434. 2. Resolving reasonable doubt in the Veteran's favor, for the initial rating period on appeal from December 1, 2015 to January 4, 2020, the criteria for a higher initial disability rating of 50 percent, but no higher, for the service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411-9434. 3. For the initial rating period on appeal from January 4, 2020, onward, the criteria for a higher initial disability rating in excess of 70 percent for the service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411-9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from October 1967 to July 1969. The instant matter is on appeal from a February 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that granted service connection for PTSD and assigned a 30 percent disability rating. A subsequent January 2020 rating decision assigned a 70 percent disability rating effective January 4, 2020 (date of second VA examination). The instant matter has been before the Board of Veterans' Appeals (Board) previously. In December 2019, the Board remanded the matter for an updated VA examination and for updated VA treatment records. As the examination has occurred and the treatment records have been procured, the matter is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On the March 2017 VA Form 9 (substantive appeal), the Veteran requested a Board hearing. In subsequent September 2019 correspondence, the Veteran withdrew the hearing request. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). PTSD Rating Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings can be assigned at the time an initial disability rating is assigned). The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers 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. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. See Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated 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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Under Diagnostic Code 9411-9434, a 30 percent rating will be 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating will be 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, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating will be 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), and inability to establish and maintain effective relationships. Id. A 100 percent schedular rating contemplates 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. 1. Rating PTSD from December 23, 2014 to December 1, 2015 The Veteran is in receipt of a 30 percent disability rating for the service-connected PTSD from December 23, 2014 to January 4, 2020, when he participated in a VA examination that led the RO to find an increase in disability that warranted a higher disability rating of 70 percent. After a review of all the evidence, lay and medical, the Board finds that the initial 30 percent rating period should be shorter (December 23, 2014 to December 1, 2015), that the severity, frequency, and duration of the symptoms warrant a higher 50 percent disability rating from December 1, 2015 to January 4, 2020, but no higher, and that the 70 percent disability rating from January 4, 2020, onward, is justified and a total 100 percent disability rating is not warranted. Looking first at the initial rating period, from December 23, 2014 to December 1, 2015, the severity, frequency, and duration of the PTSD symptomatology most nearly approximate 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), warranting not higher than a 30 percent disability rating. In a February 2015 VA examination, the VA examiner finds that the Veteran meets the criteria for a diagnosis of PTSD, with a severity of mild. The VA examiner noted that the Veteran endorsed the full ranging symptoms of PTSD, but that his functioning was largely intact despite the symptoms. Some of the main symptoms that the Veteran faced were daytime intrusive symptoms, largely triggered, regular nightmares and chronically poor sleep, irritability but without violence or destructive tendencies, anxiety, and suspiciousness. As far as social impairment is concerned, the Veteran stated that his relationship with his wife is "fantastic," that they enjoy spending time together and traveling together, that they each have two biological children and that he enjoys spending time with them. The Veteran stated that he was retired, that he enjoyed spending time reading and doing puzzles. He stated that he used to enjoy golf and bowling, but he could not explain why he had lost interest (like or similar to depression or anxiety). His wife proffered that she thought the loss of interest was because he was sad and upon further questioning the Veteran endorsed PTSD-related limitations, such as triggered anxiety and hypervigilance in public. Although, at the time, he had a good tolerance for most public places, he still had some behaviors indicative of hypervigilance both in public and at home. Occupationally, the Veteran retired in 2007 from an engineering position for reasons unrelated to the psychiatric disability. In short, during the initial period the evidence show symptoms related to PTSD but did not demonstrate a high level of occupational and social impairment from the PTSD-related symptoms. The Veteran had strong familial relationships and was able to tolerate most public places. A higher 50 percent disability rating is not warranted, as the evidence does not show that the Veteran had reduced reliability and productivity or the symptomatology or degrees of occupational and social impairment associated with a higher 50 percent rating. 2. Rating PTSD from December 1, 2015 to January 4, 2020 Progressively, over time, the PTSD symptomatology worsened and the occupational and social impairment increased. After a review of all the evidence, lay and medical, the evidence supports a higher initial 50 percent disability rating due to reduced reliability and productivity, but no higher is warranted for the stage from December 1, 2015 to January 4, 2020 as the evidence does not demonstrate deficiencies in most areas during this time. In December 2015, the Veteran and his wife moved and, during the moving process, the Veteran became very angry at the wife and cursed her out, saying that she needed to straighten out or he would throw her out (like or similar to impaired judgment). The Veteran had an urgent psychiatric assessment with an outpatient psychiatrist, who noted that the Veteran had been experiencing increasingly erratic behavior, to include anger (like or similar to disturbances of motivation and mood), anxiety, and depressive symptoms. The Veteran reported that he had not gotten physical with his wife, but that she was scared of the anger and the explosions he would have (like or similar to disturbances of motivation and mood and impaired impulse control). The Veteran also exhibited extreme road range, to the point that the wife refused to be in the car with him (like or similar to impaired judgment). Psychiatric symptoms included flashbacks (like or similar to disturbances of motivation and mood) with chest palpitations, sweating, tremors, and pacing around the house, chronic sleep problems (to include nightmares), hypervigilance (like or similar to suspiciousness and disturbances of motivation and mood), difficulty concentrating (like or similar to depressed mood or anxiety), minor memory issues, and loss of appetite (like or similar to depressed mood). The Veteran had no issues with the mental status examination and did not report suicidal or homicidal ideation or hallucinations and was fully oriented. After the December 2015 appointment, the Veteran participated regularly in mental health treatment with a psychiatrist and a number of psychologists, both for individual and for group therapy. At the one-week follow-up appointment, the Veteran stated that he still had erratic sleep patterns, decreased appetite, difficulty with concentration, and low energy, and continued to be hypervigilant and irritable (like or similar to disturbances of motivation and mood). In an extensive trauma assessment, the Veteran explained that he had recurrent, involuntary, and intrusive distressing memories of trauma at least once per day, distressing dreams at least once per week, and that memories got stirred up by situations, like the mass shootings. The Veteran described physiological responses, such as increased heart rate, shortness of breath, chest tightening, hot flashes, stomach distress, sweating sometimes, and feeling like he was going to have a heart attack, and that he tried to avoid situations that might arouse the distressing memories, thoughts, or feelings, and experienced persistent negative emotional states and inability to experience positive emotions. The assessment concluded that his symptoms were consistent with both PTSD and major depressive disorder. The remainder of the treatment notes during this time period on appeal reveal similar symptomatology and levels of functional impairment. Over time, the frequency of nightmares decreased and the intrusive memories lessened. Although the Veteran still did not get more than 4 to 5 hours of sleep, he found that less problematic. At times, his mood lifted, though sometimes he was more dysthymic or depressed in appearance, and thinking and judgment were within normal limits, as was speech and appearance. There were some memory-related concerns. See, e.g., May 2017 VA Treatment Record (documenting private testing that found worsening short-term memory or naming difficulties). The impact of the PTSD symptoms on social functioning did not resolve, as evidenced by a lay statement from the wife. In an April 2016 lay statement, the wife reported that slamming doors, a raised angry voice, threats, irrational thoughts and actions, and a hair trigger temper were a normal part of her life (like or similar to impaired judgment and disturbances of motivation and mood). She explained that the Veteran flew into a rage with absolutely no logical cause or reason and that when he was done he frequently could not recall in it detail and did not realize how out of control he was, such as that he had been screaming at the top of his lungs over something with no consequence (like or similar to impaired judgment and disturbances of motivation and mood and impaired impulse control). The wife also stated that she cannot cook or clean or do laundry because it makes too much noise, that the Veteran is hypersensitive to noise, so he would have to leave the house for the day. The wife explained challenges related to patrolling at night (despite them living in a very safe area and having a tall fence in the backyard), being unable to go to restaurants because he has to have his back to the wall to assess a threat of danger (like or similar to suspiciousness), and struggling to maintain relationships with friends because he cannot stay grounded in the present and pay attention during a phone conversation and did not have the energy for an in-person meeting (like or similar to difficulty in establishing and maintaining effective work and social relationships). The Veteran also submitted statements about this period listing PTSD symptoms and impairment that approximate a higher initial rating of 50 percent. In a Notice of Disagreement (in response to the rating decision that stated which specific symptoms would lead to a 50 percent disability rating), the Veteran outlined some of the symptoms that he believed that the RO had missed from the medical records. He described his PTSD symptoms as daily flashbacks, usually triggered, which cause physiological responses, severe short-term and long-term memory impairment where a brain scan showed no cause other than PTSD, severe disturbances of motivation and mood (as an example, he mentioned that his mood is either extreme sadness or unhappiness even though there is no actual basis in reality) and loss of interest in things that he used to enjoy, impaired judgment (deciding based on what he feels in the moment, as opposed to long-term consequences), hypervigilance and hyperstartle responses, sleep problems, constant anger, and irritability. A March 2017 VA Form 9 suggested that the symptoms were worsening and leading to panic attacks at least three times per week, constantly checking things such as windows and doors, impairment of short and long-term memory, impaired judgment to the point of endangering himself, his wife, and other drivers with road rage and loss of control, disturbances of mood and motivation that lead to social isolation, impaired abstract thinking to the ability to read a book, watch a television program, or carry on a conversation without withdrawing and zoning out. Both of these documents are viewed somewhat cautiously, as the Veteran was given a list of symptoms that yield a 50 percent rating and then he responded by endorsing each symptom on the list, and was doing so for compensation purposes. On the other hand, the reported symptoms and impairments reported by the Veteran during treatment appointments are of higher probative value because the Veteran was accurately reporting symptoms in order to receive effective treatment. During the period from December 1, 2015 to January 4, 2020, the most probative evidence shows that the severity, frequency, and duration of the service-connected PTSD symptomatology most nearly approximates occupational and social impairment with reduced reliability and productivity. The statement by the wife and by the Veteran both show some social isolation (like or similar to disturbances of motivation and mood), some impaired judgment, PTSD symptomatology that largely resembles disturbances of motivation and mood and chronic sleep impairment, memory and concentration challenges, and difficulty in establishing and maintaining effective work and social relationships. During this stage of the rating period on appeal, the only symptom that resembles symptoms indicative of a higher rating is impaired impulse control; however, while the Veteran is easily angered, the level of violence contemplated for a 70 percent rating is not approximated. In addition, this one symptom does not cause deficiencies in most areas of the Veteran's life to show an inability to establish and maintain effective relationships. Looking at the picture wholistically, the core cluster of symptoms support a 50 percent rating, based on the lay and medical evidence showing occupational and social impairment with reduced reliability and productivity. Resolving reasonable doubt in the Veteran's favor, for the initial rating period on appeal from December 1, 2015 to January 4, 2020, the criteria for a higher initial disability rating of 50 percent, but no higher, for the service-connected PTSD have been met. 3. Rating PTSD from January 4, 2020, Onward On January 4, 2020, the Veteran participated in a VA examination that showed a worsening of the psychiatric disability. While the initial VA examination diagnosed only PTSD, the January 2020 VA examiner diagnosed PTSD and recurrent, moderate major depressive disorder. The January 2020 VA examiner noted that the Veteran had been married to his second wife for 11 years (she has since died), had two children and two stepchildren, and retired in 2007 from an engineering position that he had held for 25 years after treatment for prostate cancer. The January 2020 VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, impairment of short-term and long-term memory, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work-like setting, obsessional rituals that interfere with routine activities, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran also was noted to experience dissociation, which means that the Veteran does not remember his actions or events following periods of intense emotion. He also experiences intense anger over relatively mild eventsas an example, a driver coming too close to his car could lead to a rage response and irrational actions, such as trying to retaliate by chasing the car down the highway and run into it. Occupational and social impairment due to PTSD alone included deficiencies in most areas due to impaired judgment, poor impulse control, disturbances in motivation and mood, difficulty adapting to stressful circumstances, and panic attacks more than once per week. The January 2020 VA examiner noted that the Veteran responds to perceived threats of any kind (such as those when driving) with an immediate fight or flight response, which is typically severe rage. During the episodes of rage, he engages in irrational and unsafe behaviors, such as attempting to retaliate or provoke others. At those times, he is unable to process input and does not respond to mitigating information or others attempts to calm him. The Veteran responds to minor problems and stresses with extreme anxiety, which he experiences as rage. The reactions include loss of control of his actions, impaired judgment, aggression or attempted aggression, physiological hyperarousal, and distorted thinking. Following these over reactions, he experiences shame, guilt, sadness, low motivation, and poor initiative. The pattern of affective and behavioral responses was deemed a key symptom of PTSD. At a VA psychiatric appointment in January 2020, the Veteran explained that the holidays are challenging because of remembering all the people who did not survive the war. Despite his concerns, he was cooperative and attentive, had grossly intact cognitive functioning, motor functioning and speech were within normal limits, had a calm and stable affect, thought processes were sequential and goal-directed, and he denied suicidal ideation, homicidal ideation, and perceptual disturbances. In short, the VA examination and discussion of the Veteran's symptomatology and degrees of social and occupational impairment demonstrates why the 70 percent disability rating is warranted, but it also makes it clear that a 100 percent total disability rating is not warranted. The PTSD has not rendered the Veteran totally socially and occupationally disabled, as he is oriented, cognitively sound, and developed a strong relationship with his wife and children. While the Veteran is not employed, that unemployment was due, in part, to the service-connected prostate cancer rather than just the PTSD. As the lay and medical evidence does not show total social and occupational impairment for this period, a disability rating in excess of 70 percent from January 4, 2020, onward, must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.