Citation Nr: 21071312 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-54 076 DATE: November 30, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder prior to April 18, 2019, is denied. Entitlement an initial 70 percent evaluation for PTSD for the period from April 18, 2019, to February 28, 2020, is granted. Entitlement to an initial evaluation in excess of 70 percent for PTSD on or after February 28, 2020, is denied. FINDINGS OF FACT 1. For the period prior to April 18, 2019, the Veteran's PTSD was not productive of occupational and social impairment with reduced reliability and productivity. 2. Since April 18, 2019, the Veteran's PTSD has been shown to be productive of occupational and social impairment in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for PTSD prior to April 18, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9411. 2. The criteria for an initial 70 percent evaluation for PTSD for the period from April 18, 2019, to February 28, 2020, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9411. 3. The criteria for an initial evaluation in excess of 70 percent for PTSD on or after February 28, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation effective from April 16, 2015. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2019. A transcript is of record. The Board remanded the case for additional development in August 2019. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in a July 2020 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for the Veteran's PTSD from 30 percent to 70 percent effective from February 28, 2020. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to an increased evaluation for PTSD remains on appeal. The Board notes that the Veteran submitted a VA Form 10182 in July 2020 and elected the evidence submission docket under the Appeals Modernization Act. However, in an October 2020 letter, the Board notified the Veteran that the form could not be accepted. He was given an opportunity to resubmit a corrected form. However, to date, the Veteran has not resubmitted the form; therefore, the claim remains in the legacy appeals system. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir.2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's PTSD is currently assigned a 30 percent evaluation prior to February 28, 2020, and a 70 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent evaluation is warranted when the psychiatric disorder results in 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). A 50 percent evaluation is warranted when the psychiatric disorder results in 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. A 70 percent evaluation is warranted when the psychiatric disorder results in 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. A 100 percent evaluation is warranted when the psychiatric disorder results in 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. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The 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. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), 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." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 30 for PTSD prior to April 18, 2019, but that a 70 percent evaluation is warranted as of that date. The evidence prior to April 18, 2019, does not show that the Veteran had a 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; or, difficulty in establishing and maintaining effective work and social relationships. During a June 2015 VA examination, the Veteran was documented as having anxiety, suspiciousness, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a worklike setting. No other symptoms were noted. He was also found be cooperative and oriented with a normal thought process, average concentration and memory, and no suicidal ideation. The June 2015 VA examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Such a finding is commensurate with the currently assigned 30 percent evaluation. VA treatment records dated in February 2016 also show that the Veteran denied having thoughts of suicide or hurting others, and in March 2016, he again denied experiencing suicidal and homicidal ideation, plan, or intent. It was also noted that he did not have history of violence. The Veteran was documented as having appropriate behavior and appearance; normal speech; logical and rational thought processes; normal orientation to time, place, person, and space; and normal insight and memory. As to social impairment prior to April 18, 2019, the evidence shows that the Veteran had maintained relationships with family and friends. He told the June 2015 VA examiner that he had been married twice and that he gets irritated and argues one two to times per week with his current spouse, but he goes on date nights with her. The Veteran also indicated that he has some anxiety around crowds, but is usually able to stay at events. He further reported that he has 50 friends with 20 to 25 of them being close friends. As to occupational impairment prior to April 18, 2019, the Veteran told the June 2015 VA examiner that he had been working as a plumber and pipe fitter for 20 years. He indicated that sometimes gets laid off, but it was due to companies not having work. He also noted that he gets into some arguments with people at work once per week, but he denied having concentration and memory problems affecting his work. VA treatment records dated in 2016 also show that he was employed full-time. The Board does acknowledge that the June 2015 VA examiner indicated that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting, which is a symptom contemplated in the criteria for a 70 percent evaluation. However, as noted above, the evidence shows that the Veteran has been able to maintain full-time employment, and despite noting that symptom, the June 2015 VA examiner ultimately concluded that he had only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. After considering the evidence of record, the Board finds that overall, when taken together, the Veteran has not demonstrated symptoms consistent with the 50 percent criteria, nor have the Veteran's symptoms caused occupational and social functioning with reduced reliability or productivity. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 50 percent have not been met or approximated for the period prior to April 18, 2019. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Nevertheless, during the April 2019 hearing, the Veteran testified that he remained employed, but was not allowed at meetings due to his anger and outbursts. He stated that his problems at work had increased in the past four years and that he would previously let things go. He also described difficulties with his family relationships that had become more frequent and noted that he only had one or two friends because his other friends had stopped talking to him. The Veteran further reported that, although he had not acted on them, he did have thoughts of suicide and hurting others. In addition, he stated that he was having more problems with memory. Notably, the hearing testimony was the first evidence of record since the Veteran was last seen for VA treatment in 2016. Given the Veteran's hearing testimony describing a worsening of his PTSD, additional symptoms, and increased difficulties with work and relationships, the Board finds that an increased evaluation is warranted as of April 18, 2019. His testimony is the first indication that he had experienced suicidal thoughts. As set forth above, suicidal ideation is one of the symptoms associated with a 70 percent disability rating. Suicidal ideation involves a range from a passive wish not to awaken in the morning or a belief that others would be better off if the individual were dead, to transient but recurrent thoughts of committing suicide, to a specific plan. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Court has held that the criteria for a 70 percent rating "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. Although the Veteran did not report any suicidal plans or intent, the Board may not discount the symptom of suicidal ideation based on the absence of factors such as intent or plan. Id. Therefore, based on his hearing testimony on April 18, 2019, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that a 70 percent evaluation is warranted as of that date. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 70 percent on or after April 18, 2019. A 100 percent rating is warranted when the psychiatric disorder results in 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 evidence of record does not show that the Veteran has such symptoms. During a February 2020 VA examination, the Veteran was found to have a depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting. However, the examiner indicated that he did not have 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); or disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The February 2020 VA examiner also stated that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Such a finding is commensurate with the currently assigned 70 percent evaluation. Moreover, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or other symptoms of similar severity may be shown or argued, the Board finds that the Veteran's PTSD has not been productive of both total occupational and social impairment. The Board emphasizes that the criteria for an evaluation of 100 percent requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). With regard to social impairment, as previously discussed, the Veteran testified during the April 2019 hearing that he had difficulties with his family relationships that had become more frequent and noted that he only had one or two friends because his other friends had stopped talking to him. The Veteran also told the February 2020 VA examiner that he lives with his wife of nine years and their 12-year-old daughter that he had adopted. He has three older children and indicated that he sees his youngest child, but noted that the older two children will not have much to do with him. He also described marital difficulties, and his wife described him as emotionally unstable with temper issues. Thus, while the Veteran has been shown to have some degree of social impairment, it cannot be said that he has total social impairment given that he has maintained some relationships. As to occupational impairment, the Veteran testified during the April 2019 hearing that he remained employed, but was not allowed at meetings due to his anger and outbursts. The Veteran also remained employed full-time at the time of the February 2020 VA examination. It was noted that he had worked as a plumber for 25 years. Thus, the Veteran has not been shown have total occupational impairment. After considering the evidence of record, the Board finds that the Veteran's PTSD more closely approximates the criteria for the 70 percent disability rating for the period as of April 18, 2019. Overall, the Veteran has not demonstrated a level of impairment consistent with the criteria for a total evaluation. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for a total evaluation have not been met or approximated at any time during the appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Thus, the Board concludes that the weight of the evidence is against an evaluation in excess of 70 percent for PTSD on or after April 18, 2019. As such, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.