Citation Nr: 21074520 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-29 660 DATE: December 15, 2021 ORDER A disability rating in excess of 50 percent prior to January 2, 2020, and 70 percent thereafter, for posttraumatic stress disorder (PTSD) with alcohol use disorder, in remission is denied. FINDINGS OF FACT 1. Prior to January 2, 2020, the severity, frequency, and duration of the Veteran's psychiatric symptoms more closely approximated occupational and social impairment with reduced reliability and productivity. 2. From January 2, 2020, the severity, frequency, and duration of the Veteran's psychiatric symptoms has more closely approximated occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. Prior to January 2, 2020, the criteria for entitlement to a disability rating in excess of 50 percent for PTSD with alcohol use disorder, in remission 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. 2. From January 2, 2020, the criteria for entitlement to a disability rating in excess of 70 percent for PTSD with alcohol use disorder, in remission 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1991 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was last before the Board in March 2019, and has returned to the Board for further appellate review. The Board notes that in an August 2020 rating decision, the RO granted an increased 70 percent rating for the Veteran's PTSD with alcohol use disorder, effective January 2, 2020, creating a staged rating. Inasmuch as higher ratings are available during each period on appeal, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993)(claimant presumed to seek the maximum available benefit for a disability). Entitlement to an increased rating for PTSD with alcohol use disorder, in remission, evaluated as 50 percent disabling prior to January 2, 2020, and 70 percent thereafter Service connection was originally granted in a September 2014 rating decision, which assigned a 50 percent disability rating, effective May 9, 2014. The Veteran initiated the present claim for an increased rating in July 2016, and in the October 2016 rating decision that is the subject of this appeal continued the 50 percent disability rating. As noted above, the RO increase the disability rating to 70 percent, effective January 2, 2020. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), 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-term 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 maximum 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 behaviour; 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 symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's PTSD with alcohol use disorder, in remission (hereinafter, "PTSD") and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). The United States Court of Appeals for the Federal Circuit has acknowledged 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." Vazquez-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. Upon review of the record, the Board finds that a rating in excess of 50 percent for PTSD is not warranted at any time prior to January 2, 2020. During a September 2016 VA examination, the Veteran reported that he gets irritable with the people at work and experiences anxiety, hypervigilance, sleep problems, and anger. The Veteran endorsed symptoms of anxiety; suspiciousness; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. Mental status examination revealed the Veteran was well groomed and dressed casually and appropriately; his speech was normal; his thought process was logical; there was no evidence of delusions or hallucinations; and he denied suicidal or homicidal ideations. The examiner further noted that the Veteran was experiencing a moderate level of subjective distress, a severe level of social impairment, and a moderate level of occupational impairment. As such, the examiner characterized the Veteran's level of functioning as occupational and social impairment w/ reduced reliability and productivity. In accordance with the prior Board remand, the Veteran underwent a VA examination in January 2020, at which time the examiner noted that the Veteran has consistently denied depressed mood or loss of pleasure since 2014; thus, he does not meet the full criteria for a diagnosis of major depressive disorder. The Veteran endorsed symptoms of anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; and difficulty in establishing and maintaining effective work and social relationships. The examiner indicated that the Veteran was casually and appropriately dressed; he was alert and oriented; his speech rate and volume were within normal limits; and his thought process was fluent, logical, and circumstantial. The examiner further indicated that there was no evidence of delusions or hallucinations, the Veteran did not demonstrate any object memory or attentional concerns during the examination, and he denied any current suicidal or homicidal ideations. Thus, the examiner characterized the Veteran's level of functioning as occupational and social impairment with reduced reliability and productivity. A review of the Veteran's VA treatment records reveals the Veteran consistently denied suicidal or homicidal ideations. Additionally, mental status examinations in May 2016 and July 2016 reveal the Veteran was appropriately dressed and groomed, his speech was within normal limits, his thoughts were logical and goal-directed, and his insight and judgment were fair. Based on a review of the above, the Board concludes that the Veteran's symptomatology more nearly approximates the criteria for a 50 percent rating prior to January 2, 2020. While the record reflects symptoms including anxiety; suspiciousness; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships, the most probative medical evidence of record does not reflect suicidal ideation; obsessional rituals which interfere with routine activities; illogical, obscure, or irrelevant speech; near-continuous panic or depression; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. Moreover, while the September 2016 VA examiner indicated that the Veteran experienced a severe level of social impairment, and a moderate level of occupational impairment, the examiner indicated that his symptomatology resulted in reduced reliability and productivity, rather than resulting in deficiencies in most areas or total occupational and social impairment. Thus, prior to January 2, 2020, the Board finds that the Veteran's symptoms more closely approximate the symptoms consistent with a 50 percent disability rating. After considering the record before it, the Board finds that a rating in excess of 70 percent is not warranted from January 2, 2020, as the Veteran's symptoms do not result in total occupational and social impairment. Here, while the Veteran endorsed additional symptoms of panic attacks more than once a week and circumstantial, circumlocutory or stereotyped speech, the most probative medical evidence of record does not reflect symptoms such 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. Accordingly, the Board finds that the Veteran's PTSD symptoms do not result in total occupational and social impairment. The Board has carefully considered the lay statements of the Veteran concerning the symptoms and effect of his PTSD, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board notes that the Veteran is credible in his reports of his symptomatology, as he has been consistent in his reports to treatment providers, and his statements were not challenged by his treatment providers. However, the criteria needed to support a higher rating requires medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating. The Board acknowledges a February 2017 memorandum form the Veteran's psychiatrist, which indicates he has a diagnosis of major depressive disorder; however, VA treatment records are absent such a diagnosis and the January 2020 VA examiner found that the Veteran did not meet the criteria for a diagnosis of major depressive disorder. Ultimately, it is the impact on functioning that results from the symptomatology that dictates the evaluation to be assigned. See Vazquez-Claudio, 713 F.3d at 118 ("[38 U.S.C.] § 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"). The Board has also considered whether staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), are appropriate for the Veteran's service-connected PTSD; however, the Board finds that such symptomatology has been stable throughout each period on period. Therefore, assigning additional staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record in connection with the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the preponderance of the competent and probative evidence is against the award of a rating in excess of 50 percent for PTSD prior to January 2, 2020, and in excess of 70 percent thereafter. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.