Citation Nr: 21077331 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 13-02 819 DATE: December 29, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to May 18, 2021, is denied. Entitlement to a disability rating in excess of 50 percent for PTSD is denied. FINDINGS OF FACT 1. Prior to May 18, 2021, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. From May 18, 2021, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent prior to May 18, 2021, and in excess of 50 percent thereafter, for service-connected PTSD, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 2006 to September 2010, including service in Iraq. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the rating decision on appeal granted service connection and a 10 percent rating for dyssomnia, effective September 5, 2010. The Veteran appealed the initial rating assigned, and the matter came before the Board in February 2016 where an initial rating of 30 percent was granted. The issue of entitlement to an initial rating higher than 30 percent was remanded, and it returned to the Board in June 2018 and again in January 2021, where it was remanded again on each occasion for additional development. Subsequent to the Board's last remand, the RO granted a 50 percent rating for the Veteran's disability in a September 2021 rating decision, now characterized as PTSD, effective the date of a May 18, 2021 VA examination. As higher ratings are still available for the Veteran's disability, it now returns to the Board for further adjudication. The Board also notes that its previous remands also included claims for entitlement to service connection for a left wrist disability, right and left collarbone disabilities, and rib disability, an allergy disorder (to include a sinus condition and allergic rhinitis), and a gastrointestinal disorder. These claims, however, were granted by the RO in the aforementioned September 2021 rating decision. As these awards of service connection represent full grants of the benefit sought on appeal, they are no longer before the Board. The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in September 2015, a transcript of which is of record. Increased Ratings The Veteran is in receipt of a 30 percent initial disability rating for his service-connected acquired psychiatric disorder prior to May 18, 2021, and a 50 percent rating thereafter. The Veteran asserts that the severity of his disability warrants higher ratings both prior to and since May 18,2021. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. The Veteran's disability is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. A 50 percent rating is warranted when there is 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 such as, 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. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). 1. A rating in excess of 30 percent prior to May 18, 2021. For the purposes of this initial claim for service connection, a VA mental disorders examination was afforded to the Veteran in June 2010, just prior to his service discharge. Upon interview and examination, the Veteran described symptoms of poor sleep, anxiety, depression, and irritability. At this time, he was diagnosed with dyssomnia, and he described problems falling and staying asleep due to "thinking about daily things." His sleeping difficulties were not otherwise due to worry, and he denied nightmares. He also denied anxiety or panic attacks during the day but noted an increase in irritability without violence. The examiner also noted that a 2009 health assessment after deployment to Iraq indicated no psychiatric problems. The examiner observed that the Veteran was pleasant and cooperative without sings of depression, and with normal speech, thought content, affect, and cognition. The examiner opined at the time that the Veteran had no social impairments due to any psychiatric disorder. The Board also notes that, in addition to the above examination where the Veteran reported sleep impairment, depression, anxiety, and irritability, he also reported during his hearing in September 2015 before the undersigned that his symptoms manifested occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As such, the Board granted an initial 30 percent rating for the Veteran's service-connected disability, characterized as at that time as a psychiatric disability manifested by dyssomnia, in its February 2016 decision. The issue of a rating in excess of 30 percent was remanded for additional development, including an updated VA examination. After review of the remaining record during this period on appeal, i.e., prior to May 18, 2021, the Board finds no other medical evidence in significant conflict with the findings above, to include medical treatment records which note the Veteran's continued anxiety, irritability, depression, and sleep impairment. Mental status examinations by VA Medical Center providers consistently reflect that the Veteran was pleasant and cooperative, with normal speech, orientation, and thought content. He consistently denied suicidal/homicidal ideation and psychotic episodes. Additionally, as the Board noted in its June 2018 and January 2021 remands, there are several notations in the record that the Veteran did not report for the VA examinations ordered in its February 2016 remand to determine the current nature and severity of his acquired psychiatric disorder. Thus, the Board finds that the available evidence is against a finding that the Veteran's disability warrants more than the 30 percent evaluation that is currently assigned during this period on appeal. There is no evidence the Veteran demonstrated symptoms more indicative of the next higher, 50 percent rating under Diagnostic Code 9411, such 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130. Overall, the symptoms as described by the examiners was indicative of no more than 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). Notably, the Veteran's depression, anxiety, and sleep impairment are all specifically listed as symptoms demonstrative of the already assigned 30 percent rating. In sum, as the evidence is against a finding that the severity of the Veteran's PTSD warrants a rating higher than 30 percent prior to prior to May 18, 2021, the claim for an increased rating for this period must be denied. 38 C.F.R. §§ 4.1, 4.3, 4.130. 2. Rating in excess of 50 percent from May 18, 2021. Despite the Veteran's failure to report to several schedule VA examinations to determine the nature and severity of his acquired psychiatric disorder, as there was some question in the record as to whether the Veteran received actual notice of his scheduled examinations the Board remanded the claim again most recently in January 2021. The record reflects that the Veteran did report to a VA PTSD examination in May 2021. Based on the findings of the examination, the RO granted the Veteran an increased 50 percent rating effective the date of this exam due to the examiners opinion that the Veteran's disability now manifested occupational and social impairment with reduced reliability and productivity, due to his endorsement of symptoms such as anxiety, chronic sleep impairment, depressed mood, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, flattened affect, impaired judgment, and suspiciousness. The examiner noted that Veteran was observed to be pleasant and cooperative throughout the interview, cognition, impulse-control, and judgment were observed to be intact, and there was no obvious thought process, content, or communication impairment observed during the assessment. There is no other medical evidence of record during this particular period on appeal that is in significant conflict with the above findings. Based on the foregoing, the Board finds the evidence is against a finding that the Veteran's disability warrants more than the 50 percent evaluation that is currently assigned. Again, a 70 percent evaluation requires deficiencies in most areas. See 38 C.F.R. §§ 4.16, 4.130, General Rating Formula for Mental Disorders. Although the record reflects a history of physical fights, when offered the choice as to how best to categorize the Veterans impairment level, the May 2021 examiner chose occupational and social impairment with reduced reliability and productivity, which is the criteria for the current 50 percent rating. While the Veteran may have reported some symptoms that could be considered demonstrative of a higher rating, such as impaired impulse control, the examiner determined that for this particular Veteran the symptom combination only resulted in occupational and social impairment to a lesser degree than that contemplated by a higher 70 percent rating. Further, the record is negative for evidence that the Veteran demonstrated suicidal ideation, obsessional rituals which interfere with routine activities, abnormal speech, near-continuous panic or depression, an inability to establish and maintain effective relationships, spatial disorientation, or neglect of personal appearance and hygiene. Thus, taken as a whole, the evidence during this particular period on appeal is against a finding that a higher 70 percent rating is warranted. The Board is sympathetic to the Veteran's lay statements that his PTSD is worse than currently evaluated during the periods on appeal, and those statements have been considered. The Veteran is competent to report symptoms he can observe through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the mental health personnel who have examined him during the current appeal, considered his statements, and rendered pertinent opinions in conjunction with the evaluations. The mental health findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. In sum, as the evidence is against a finding that the severity of the Veteran's depressive disorder warrants a rating higher than 50 percent for the period beginning May 18, 2021, the claim for an increased rating during this period must also be denied. 38 C.F.R. §§ 4.1, 4.3, 4.130. As a final matter, the Board acknowledges the argument provided by the Veteran's representative in November 2021 that a separate disability rating should be assigned for an anxiety disorder in addition to his PTSD rating. However, pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology. See Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). Thus, while the Court noted it was possible for two mental disabilities to have different symptoms and therefore be evaluated separately, if the manifestations of the two mental disabilities were the same, a separate evaluation was not warranted. While it is possible for an appellant to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, the Veteran's May 2021 VA examination notes only a diagnosis of PTSD, with anxiety to be one of its symptoms. Further, no treatment record indicates any separate acquired psychiatric disorder separate from his PTSD. Therefore, it would be pyramiding to consider the Veteran's anxiety symptoms for both his PTSD and a separate acquired psychiatric disorder, as the symptom he is claiming has already been considered in his PTSD rating. To the extent that the Veteran believes he has anxiety separate from his service-connected PTSD, while competent to opine on matters within the realm of common medical knowledge, he has not demonstrated the requisite expertise to translate his various psychiatric symptoms into a clinical diagnosis separate from his service-connected PTSD. Accordingly, the Board finds that the Veteran's account as to the severity of his psychiatric disability is outweighed by the probative medical evidence of record, especially given that no medical professional has confirmed that a psychiatric disorder outside of PTSD is present. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.