Citation Nr: 21072326 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-18 623 DATE: December 2, 2021 ORDER Entitlement to a rating in excess of 50 percent prior to August 9, 2021, and a rating in excess of 70 percent thereafter, for service-connected posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Prior to August 9, 2021, the Veteran's PTSD symptoms more closely approximated that of occupational and social impairment with reduced reliability and productivity. 2. Beginning August 9, 2021, the Veteran's PTSD symptoms more closely approximates that of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 50 percent prior to August 9, 2021, and a rating in excess of 70 percent thereafter, for service-connected posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Army from October 1966 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from the November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified before the undersigned VLJ at a virtual hearing. A transcript of the hearing is of record. In June 2021, the Board remanded the Veteran's claim for additional development. The Board notes that there was substantial compliance with its June 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran's disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as "pyramiding" is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. 1. Entitlement to a rating in excess of 50 percent prior to August 9, 2021, and a rating in excess of 70 percent thereafter, for service-connected PTSD. The Veteran's PTSD is currently rated as 50 percent disabled prior to August 9, 2021, and 70 percent disabled thereafter, under the appropriate DC 9411. Under DC 9411, 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 of 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. The highest rating of 100 percent 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. 38 C.F.R. § 4.130, DC 9411. The list of symptoms under the rating criteria above are meant to be examples of symptoms that would warrant the respective rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-42 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). After review of the record, the Board finds that an increased rating exceeding 50 percent prior to August 9, 2021, and a rating exceeding 70 percent thereafter, is not warranted during any period on appeal. Medical treatment records during the appeal period reflect complaints and treatment for nightmares, with the Veteran specifically denying experiencing any suicidal or homicidal ideations and hallucinations. Additionally, the Veteran has been attending weekly trauma and anger management group sessions for treatment. In September 2016, the Veteran underwent a review PTSD VA examination, where the examiner noted the Veteran's symptoms of depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, hypervigilance, exaggerated startle response, and markedly diminished interest or participation in significant activities; however, the Veteran denied having any suicidal or homicidal thoughts, or hallucinations or delusions. He reported that he is married with two children, with whom he has a good relationship with; he relayed he had a few friends from church and a close friend that lives nearby that he communicates with 3 to 4 times per week. Overall, the Veteran stated that he was relatively happy with his social life, but disliked being around a lot of people. Regarding his occupational history, the Veteran worked as an account executive and later in customer service, where he denied any issues related to his work performance. The 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. See C&P Exam, September 2016. In an April 2021 Board hearing, the Veteran testified that his PTSD mostly interferes with his sleep and dreams, where he has on occasion elbowed his wife and kicked her out of bed once. He reported that he checks all the doors in his house every night, and sleeps with a firearm underneath his pillow, with other guns being around the house. He does not like to be around a lot of crowds, and experiences anxiety and panic attacks that impacts his ability to focus and concentrate at times. However, the Veteran specifically testified that he does not have any hallucinations or any kind of suicidal or homicidal thoughts. See Hearing Transcript, April 2021. In August 2021, the Veteran underwent another review PTSD VA examination, where the examiner noted the Veteran's symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficult establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a work like setting), hypervigilance, irritable behavior and angry outbursts, and feelings of detachment or estrangement from others; however, the Veteran denied having any suicidal or homicidal thoughts. The Veteran demonstrated an average to above average intellectual functioning, with his memory being intact. He reported that he is married with four children, with whom he has a good relationship with. He stated that he has a few close friends, but has difficulty making and/or keeping friends due to lack of trust. Regarding his occupational history, the Veteran worked parttime for 1.5 to 2 years but had to quit due to his bladder cancer; he reported having no issues with the job. The examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. See C&P Exam, August 2021. Based on the above, the Board finds that an increased rating is not warranted for the Veteran's PTSD at any time during the period on appeal. The weight of evidence of record prior to August 9, 2021 is not sufficient to meet the criteria for the next-higher 70 percent rating, as the severity of the Veteran's PTSD symptoms more closely approximate that of occupational and social impairment with reduced reliability and productivity which is commensurate of a 50 percent under DC 9411. The Board notes that the relevant medical evidence of record, to include the VA examination, shows that the Veteran's PTSD, during the relevant period, had not manifested with symptoms of such severity, frequency, or duration as to warrant a higher 70 percent rating prior to August 9, 2021. During the September 2016 VA examination, the Veteran did not show any symptoms suggestive of the severity contemplated by a 70 percent rating. Specifically, there has been no evidence of disorientation, neglect of person appearance or hygiene, frequent panic attacks, suicidal ideation, impaired impulse control, or inability to establish and maintain effective relationships. In fact, there has been evidence to the contrary. As such, the ponderance of the evidence does not support the assignment of a 70 percent rating prior to August 9, 2021 in this case. Additionally, the weight of evidence of record beginning August 9, 2021 is not sufficient to meet the criteria for the next-higher 100 percent rating, as the severity of the Veteran's PTSD symptoms more closely approximate that of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood which is commensurate of a 70 percent under DC 9411. The Board notes that the relevant medical evidence of record, to include the Board hearing and VA examination, shows that the Veteran's PTSD, during the relevant period, had not manifested with symptoms of such severity, frequency, or duration as to warrant a higher 100 percent rating beginning August 9, 2021. During the April 2021 Board hearing or August 2021 VA examination, the Veteran did not show any symptoms suggestive of the severity contemplated by a 100 percent rating. Specifically, there has been no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name causing a total occupational and social impairment. In fact, there has been evidence to the contrary. While the Veteran testified that he on occasion elbows his wife and has kicked her out of the bed once due to nightmares/dreams, this does not rise to the level of a persistent danger of hurting himself or his wife; with him stating that the wife now sleeps in another room when he has these episodes. As such, the ponderance of the evidence does not support the assignment of a 100 percent rating beginning August 9, 2021 in this case. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that higher ratings for PTSD is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). Furthermore, the symptoms described in the Veteran's lay statements are consistent with those noted in the medical treatment records and examination reports, which fail to show a 70 percent rating prior to August 9, 2021, or a 100 percent rating thereafter, is warranted. While the Board believes the Veteran's credible testimony as to the impact of his PTSD symptoms have on his daily life, such do not indicate that his experiences symptoms of such frequency, severity, or duration to warrant ratings higher than those currently assigned. As such, his lay statements do not provide any basis upon which to assign any higher rating. Therefore, the Board concludes, based on consideration of the medical and lay evidence, an increased rating in excess of 50 percent prior to August 9, 2021, and a rating in excess of 70 percent thereafter, for the Veteran's service-connected PTSD is not warranted. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.