Citation Nr: 21073808 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-33 202 DATE: December 10, 2021 ORDER A 50 percent rating for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) (claimed as anxiety and depression) is granted. FINDING OF FACT The severity, frequency, and duration of the Veteran's acquired psychiatric disorder symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating of 50 percent for the Veteran's acquired psychiatric disorder, to include PTSD (claimed as anxiety and depression) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from August 1982 to August 1985, and additional Reserve service. See DD Form 214. The Veteran was afforded a hearing before the undersigned in December 2021. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran's PTSD (claimed as anxiety and depression) is herein referred to as an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the Veteran "does not file a claim to receive benefits only for a particular diagnosis, but for the affliction his...condition, whatever that is, causes him."). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating greater than 30 percent for an acquired psychiatric disorder to include PTSD In December 2017, the RO granted service connection for PTSD (also claimed as anxiety and depression), and initially evaluated it as 30 percent disabling from September 29, 2017. In his January 2018 Notice of Disagreement, the Veteran contended that his condition most closely matched a 50 percent rating, and at his December 2021 Board hearing he indicated that he was specifically seeking a 50 percent rating to satisfy his appeal. See January 2018 NOD. A claimant is generally presumed to be seeking the maximum evaluation available under law. AB v. Brown, 6 Vet. App. 35, 39 (1993). However, a claimant can choose to limit the appeal for a claim for less than the maximum rating. Id. at 35. Here, the Board finds that the Veteran's limitation of the appeal was knowing and intelligent, made with representation and in the presence of the representative, and supported by his testimony and other evidence of record. As discussed in the decision below, the Board has determined that the Veteran's acquired psychiatric disorder, to include PTSD most nearly approximates the criteria associated with a 50 percent evaluation throughout the relevant claims period. Considering the Veteran's limiting the scope of the initial rating appeal, this decision constitutes a complete grant of the benefits sought on appeal. The Board finds that an increased 50 percent rating is appropriate for the Veteran's acquired psychiatric disorder, to include PTSD 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; and difficulty in establishing and maintaining effective work and social relationships. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Id. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In sum, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. Here, the lay and medical evidence establishes that the Veteran's acquired psychiatric disorder, to include PTSD most nearly approximates the criteria associated with a 50 percent evaluation. The Veteran's VA examination from December 2017 documented nightmares and intrusive thoughts occurring several times per week, brief dissociative episodes occurring a few times per week, and periodic flashbacks. In addition, the Veteran reported experiencing panic attacks weekly, prolonged emotional distress, and physical symptoms related to memories of his trauma, including atrial fibrillation and nausea. The Veteran reported avoiding crowds, feeling survivor's guilt, being emotionally detached, and feeling especially alert when in public. He experienced daily irritability, including verbal outbursts occurring twice a day, and exaggerated startle response, especially with sounds. He described difficulty falling asleep, flailing about during sleep, and waking startled (on occasion in a-fibrillation). Additionally, he experienced sadness, loneliness, feeling isolated, decreased interest and energy, helplessness. Additionally, the Veteran underwent a private psychological evaluation in April 2020, wherein it was indicated that the Veteran experienced nightmares, inability to concentrate, a tendency to self-isolate and be hypervigilant, fear of crowds and loud noises, feeling easily overwhelmed, survivor's guilt, numbness, angering easily and being irritable and snappy. The Veteran was prescribed medications for anxiety, nightmares, and depression. The Veteran's mood was anxious, as was his affect. The Veteran reported difficulty sleeping, to include nightmares and sleepwalking, and identified triggering memories, and experiences of nausea, sweaty hands, palpitations, and inability to talk with a sense of impending fear when stressed. In sum, the examiner indicated that there was significant elevation in the Veteran's schizoid personality, anxiety, persistent depressive disorder, PTSD and major depression to include distressing and intrusive thoughts, flashbacks, memories, startle responses, emotional numbness, problems with anger management, difficulty with sleep and concentration, and psychological distress, as well as apathy, social withdrawal, guilt, pessimism, low self-esteem, feelings of inadequacy, worthlessness, hopelessness, self-doubt and diminished pleasure. Accordingly, the Board finds that the Veteran's symptoms are of similar severity, frequency, and duration as those contemplated by a 50 percent initial rating. (Continued on the next page) The preponderance of the evidence establishes that the Veteran's acquired psychiatric disorder, to include PTSD most nearly approximates a 50 percent evaluation through the claims period. The Veteran manifests symptoms commensurate with occupational and social impairment with reduced reliability and productivity due to his mental health symptoms. An increased initial evaluation of 50 percent is therefore warranted throughout the claims period and the claim is granted in full. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.