Citation Nr: 21074551 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-45 284 DATE: December 15, 2021 ORDER Entitlement to a disability rating of 30 percent, but no higher, for the entire appeal period for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT For the entire appeal period, the severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a disability rating of 30 percent for PTSD is granted. 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 FINDING AND CONCLUSION The Veteran had active military service from January 1965 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). However, due to technical difficulties, the Veteran's testimony was inaudible, and a transcript of the hearing could not be obtained. In light of the error, the Veteran was offered a new hearing. However, in October 2019, the Veteran responded that he did not wish to appear at a hearing. In a January 2021 letter, the Veteran was informed that the VLJ who conducted the August 2019 Board hearing was no longer employed by the Board. In a February 2021 letter, the Veteran responded that he did not wish to appear at another Board hearing. In an April 2021 decision, the Board remanded the claim to obtain private treatment records from the Catholic Charities of Southeast Michigan. Increased Rating Under Diagnostic Code 9411, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, DC 9411. A 30 percent rating is warranted when there is 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriate 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. The maximum rating of 100 percent requires 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 specified factors for each incremental psychiatric rating are not requirements for a particular rating, but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). At an October 2015 VA examination, the examiner noted that the Veteran's symptoms included recurrent distressing memories, persistent negative emotional state, feelings of detachment, persistent inability to experience positive emotions, irritable behavior, hypervigilance, sleep disturbance, and anxiety. While the Veteran reported that he has "no friends," he does have relationships with his family, to include caring for 2 grandkids twice weekly. The examiner estimated that the Veteran's symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. The Veteran submitted a March 2016 private letter from his social worker. Therein, she stated that the Veteran has a "long standing diagnosis of PTSD and anxiety. His PTSD is severe and chronic . . . to cause his high anxiety." The examiner additionally stated that the Veteran continues to have high anxiety, irritability, recurrent dreams of the war, difficulty sleeping, feelings of detachment from others, and continued distress when recalling the war. Based on her familiarity with the Veteran's course of treatment, she concluded that his PTSD is "both severe and chronic." As noted above, the Board's April 2021 decision remanded the claim to obtain the Veteran's treatment records from the Catholic Charities of Southeast Michigan. In order to facilitate this request, the Board also asked the Veteran to provide the necessary releases in order to obtain those records. On July 16, 2021, VA sent the Veteran a letter asking him to provide the necessary releases. To date, the Veteran has not responded. Unfortunately, the Veteran's failure to supply these releases frustrated the RO's ability to comply with the Board's remand directives. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (explaining that VA's duty to assist is "not always a one-way street."). Based on the above, and resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD symptoms warrant a 30 percent rating for the entire appeal period. Both the October 2015 VA examination and March 2016 private letter identify many of the symptoms outlined by the 30 percent criteria including anxiety, irritability, recurrent dreams, difficulty sleeping, feelings of detachment from others, and continued distress when recalling the war. Thus, the board finds that this evidence supports a 30 percent rating for the Veteran's PTSD for the entirety of the appeal period. The Board acknowledges, regarding the above-discussed evidence, that where the opinions differ is the degree to which these symptoms impact the Veteran. The October 2015 VA examination estimated that the Veteran's PTSD symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medicationwhich would not warrant a compensable ratingwhile the March 2016 private letter stated that the Veteran's PTSD symptoms were "both severe and chronic." Balancing the October 2015 VA examination against the March 2016 private letter, the Board finds them to be equal in probative weight. The Board does, however, highlight that the March 2016 private letter is based on familiarity with the Veteran and course of treatment. Black v. Brown, 10 Vet. App. 279 (1997). However, to substantiate a rating higher than the 30 percent assigned herein, the evidence would have to show symptoms productive of occupational and social impairment with reduced reliability and productivity. In reaching this conclusion, the Board notes that the evidence does not show that the Veteran has occupational and social impairment with reduced reliability and productivity. The Veteran has not exhibited symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. To that end, the Board notes that while the Veteran reported that he has "no friends," he does have relationships with his family, to include caring for his grandkids twice weekly. Nor are the Veteran's symptoms at a level of impairment that would cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood; or total occupational and social impairment, as required for a 70 percent and 100 percent rating, respectively. Therefore, the Board finds that a rating in excess of 30 percent is not warranted at any point during the appeal period. Overall, as the evidence is in equipoise, the Board holds that the Veteran's PTSD warrants a 30 percent rating for the entire appeal period. To this extent, the appeal is granted. In so finding, the Board has considered and applied the benefit-of-the-doubt doctrine. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.