Citation Nr: 21007528 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-03 982A DATE: February 9, 2021 ORDER Prior to December 13, 2019, an increased disability rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. From December 13, 2019, a disability rating greater than 50 percent for PTSD is denied. FINDINGS OF FACT 1. Prior to December 13, 2019, the Veteran’s PTSD approximate a rating based on occupational and social impairment with reduced reliability and productivity due to symptoms such as depression, anxiety, sleep impairment, and disturbances of motivation and mood. 2. Throughout the period on appeal, the Veteran’s PTSD did not result in occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to December 13, 2019, the criteria for an increased disability rating of 50 percent, but no higher, for PTSD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, DC 9411. 2. From December 13, 2019, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2000 to February 2007. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim was previously remanded by the Board for additional development in May 2018 and October 2019. Review of the completed development related to the Board’s remand reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In August 2020, the AOJ recharacterized the claim on appeal as one for PTSD, and granted a higher, 50 percent rating, effective December 13, 2019, but continued to deny a rating greater than 30 percent prior to that date. As this grant, however, did not represent a total grant of benefits sought for the entire period on appeal, the Veteran’s claim for an increased rating for PTSD remains pending before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased ratings for PTSD Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s PTSD is evaluated under the General Rating Formula for Mental Disorders. Here, the Veteran’s service-connected PTSD has been assigned a 30 percent rating prior to December 13, 2019, and a 50 percent rating from that date. As the AOJ has already assigned staged ratings for the disability, the Board will consider the propriety of the rating assigned at each stage, as well as whether any, or any further, staged ratings are warranted. Under this formula, a 30 percent evaluation is assigned when PTSD results in 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). 38 C.F.R. § 4.130, DC 9411. A 50 percent evaluation is warranted 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. Id. A 70 percent evaluation is merited 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 that is 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), and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought process 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, or memory loss for names of close relatives, own occupation or own name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. 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). Turning to the relevant evidence of record, March 2014 private treatment records note that the Veteran was involuntarily hospitalized following a domestic dispute with his spouse. A mental health intake assessment from the hospital noted that the Veteran’s impulse control was deemed questionable, and his affect was dysphoric and agitated. The Veteran admitted to recent suicide-related ideation and reported brief thoughts of death; he acknowledged that he may be drinking excessively. The Veteran’s risk level was described as an imminent, clinically significant risk; hospitalization was deemed necessary at the time because the Veteran presented a clear and imminent danger to self or others. The clinician noted that the Veteran’s mood was severely declining, his sleep had declined, and he prescribed the Veteran with an anti-depressant with mood stabilizing agents; the clinician noted the Veteran’s severely impaired judgment as a result of an exacerbation of PTSD, and an occupational problem was also noted. Prior to his discharge at the end of March 2014, the clinician’s notes reflect some improvement in the Veteran’s behavior; he was not deemed a suicide or homicide risk. Noted strengths included an average/above average intelligence; supportive friends/family; works skills; ability for insight; and communication skills. Private treatment records date in April 2014, note that following discharge from the hospital, the Veteran continued outpatient behavioral health therapy sessions. In the September 2014 VA examination report, the examiner found diagnoses of an unspecified anxiety disorder, an unspecified depressive disorder, and chronic sleep impairment. The examiner opined that the Veteran had 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. The Veteran reported current symptoms of depression, panic, anxiety, uncertainty, hypervigilance, and fear of the future. The examiner stated that the Veteran’s mood today was “rattled.” His affect was withdrawn, and he made very little eye contact and sat hunched over in his chair. The Veteran denied suicidal ideation. The examiner opined that the Veteran’s condition caused 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. June 2019 VA treatment records note the Veteran’s report that his symptoms are well-managed with medication. He denied any homicidal and/or suicidal thought, intent, or plan; he also denied any substance use. The Veteran stated that he is living with his wife and their son and that he believes he will continue to feel well with continued psychotherapy and medication management. In December 2019, the Veteran underwent another VA psychological evaluation. The examiner found that the Veteran met the criteria for a diagnosis of PTSD, and clarified that PTSD was the only mental disorder diagnosis. The examiner stated that the Veteran’s other mental health disorders fell under the umbrella of his PTSD diagnosis. The examiner opined that the Veteran’s condition resulted in occupational and social impairment with reduced reliability and productivity. The examiner reported symptoms that include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. Suicidal and homicidal ideation and intent were denied. The examiner noted that the Veteran’s behavior was within normal limits, and that he is capable of managing his financial affairs. For the period on appeal prior to December 13, 2019, the Board finds that the evidence of record weighs in favor of a 50 percent rating, but no higher. In this regard, March 2014 private treatment records pertaining to the Veteran’s hospitalizations reflect that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productively. The Board notes that the private treatment records note the Veteran’s occupational problems, marital discord, severe decline in mood, and severely impaired judgment; these include symptoms listed in the criteria for a 50 percent rating under the General Rating Formula for Mental Disorders. Thus, with resolution of all reasonable doubt in the Veteran’s favor, the Board finds that the 50 percent rating should be assigned for the period on appeal prior to December 13, 2019. The Board, however, finds that the Veteran’s condition does not more nearly approximate a rating in excess of 50 percent throughout the appeal period. As noted above, the next higher, 70 percent rating requires evidence of 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 that is 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), and an inability to establish and maintain effective relationships. The Board finds that the evidence of record, to include the December 2019 VA examination, does not reflect that the Veteran’s PTSD was so severe that it included occupational and social impairment with deficiencies in most areas. This finding is supported by the report of the 2019 VA examiner that specifically found that the Veteran’s symptoms and resulting impairment did not result in deficiencies in most areas. The Board also finds probative the reports of the Veteran’s psychiatrist, E.M.R., from the Elgin Community Based Outpatient Clinic that the Veteran’s primary symptoms related to PTSD are nightmares; that the Veteran has reported a supportive home environment; and that the Veteran has reported that he believes he will continue to feel well with continued psychotherapy and medication management. See CAPRI Records April 2018 and March 2020. As such, the Board finds that he does not demonstrate deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as indicated for a higher 70 percent rating and his symptoms and his overall disability picture more closely approximates the criteria as described for a 50 percent rating. In sum, the Board finds that, overall, the Veteran has not exhibited most of the symptoms listed in the criteria for the 70 percent rating under the General Rating Formula as examples of the type and extent, frequency or severity, as appropriate, to indicate social and occupational impairment in most areas at any point since the effective date of service connection. Rather, the Veteran’s psychiatric symptoms have most closely approximated the criteria for a 50 percent rating under the General Rating Formula throughout the appeal period. Because the preponderance of the evidence is against the appeal for an initial rating in excess of 50 percent for PTSD, the benefit of the doubt doctrine is not for application. See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.