Citation Nr: 21008412 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-36 553 DATE: February 17, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to March 29, 2016 is denied. Entitlement to a 70 percent rating, but no higher, for PTSD from March 29, 2016, is granted. FINDINGS OF FACT 1. Prior to March 29, 2016, the Veteran’s service-connected PTSD resulted in occupational and social impairment with reduced reliability and productivity due to such symptoms as a depressed mood, anxiety, panic attacks that occur weekly or less often, sleep impairment, flattened affect, and disturbances of motivation and mood, but without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas. 2. From March 29, 2016, the Veteran’s service-connected PTSD resulted in occupational and social impairment with deficiencies in most areas, but without total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to March 29, 2016, the criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321, Part 4, including §§ 4.7, 4.130, Diagnostic Code 9411. 2. From March 29, 2016, the criteria for a 70 percent disability rating, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321, Part 4, including §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to November 1980, from October 1981 to October 1985, from May 1992 to September 1992 and from June 2003 to July 2003. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in June 2019. A transcript of the hearing has been associated with the record. The Board previously remanded this matter in December 2019 for further development. The Board finds substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Further, in the June 2020 rating decision, the agency of original jurisdiction (AOJ) awarded a 70 percent rating for PTSD, effective March 10, 2020. However, higher ratings are available for PTSD both before and after the effective date. As the Veteran is presumed to seek the maximum available benefit for a disability, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to an initial higher rating for PTSD The Veteran is seeking an initial higher rating for his service-connected PTSD. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Pursuant to that General Rating Formula, 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; difficulty in establishing and maintaining effective work and social relationships. Id. The next-higher evaluation of 70 percent is warranted 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 work like setting); 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 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. Id. As the United States Court of Appeals for the Federal Circuit has held, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, 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, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’“ Vazquez-Claudio, 713 F.3d at 117-18 ; 38 C.F.R. § 4.130, Diagnostic Code 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Initially, the Board notes that in a March 29, 2016 statement, the Veteran’s then representative reported that the Veteran complained of worsening PTSD symptoms impacting his life. Subsequently, the Veteran submitted an April 2016 private opinion that also noted that the Veteran’s PTSD symptoms were worsening. Follow up VA clinical records showed nightmares, flashbacks, intrusive thoughts, hypervigilance, mania/hypomania, ritualistic behavior, anger issues, and memory/concentration problems. He felt sad, hopeless and helpless. He cried easily. He had panic attacks two or three times per week. He preferred to stay home. Subsequently, he testified at the Board hearing that his anxiety and depression had gotten worse. He was more isolated. He again reported memory loss. Unfortunately, despite the evidence of increasing symptoms, the Veteran was not afforded a VA examination until March 2020, many years after he first reported such symptoms. The examiner confirmed that the Veteran’s symptoms had worsened and opined that he had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, which is the criteria for a 70 percent rating. The examiner observed symptoms such as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbance in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful; circumstances, including work or a worklike setting, and obsessional rituals which interfere with routine activities. The examiner noted that on his personal, social and occupational functioning, activities of daily living were intact; however the Veteran endorsed moderate to severe difficulties in joining community activities, dealing with people he does not know and maintaining friendships; and how much he has been emotionally affected by problems. Therefore, considering the prior evidence indicating an increase in severity of his symptoms as well as the subsequent VA examination report confirming such worsening, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that he met the criteria for a 70 percent rating as of the March 29, 2016 statement. However, based on the evidence of record, the Board concludes that the preponderance of the evidence is against a finding of occupational and social impairment with deficiencies in most areas so to warrant the next higher rating of 70 percent prior to March 29, 2016. The Board finds that the June 2015 VA examination is the most probative evidence during this period concerning the severity of the Veteran’s PTSD. As outlined in the June 2015 VA examination, the Board finds that the Veteran’s PTSD was primarily characterized by the following signs or symptoms: depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect and disturbances of motivation and mood. The May 2014 VA examiner documented depressed mood, anxiety, suspiciousness and chronic sleep impairment. Essentially, the Veteran’s symptoms were similar to many of those contemplated by the currently assigned 50 percent rating. In particular, the General Rating Formula lists, inter alia, disturbances of mood and motivation, among the types of symptoms associated with a 50 percent rating. 38 C.F.R. § 4.130. These are not unlike those the Board finds to be associated with this Veteran’s PTSD. Id. Further, the Board also finds that the Veteran’s PTSD symptoms caused occupational and social impairment to a moderate degree. Given the frequency, nature, and duration of those symptoms, as reflected in the medical evidence, the Board finds that they resulted in no more than occupational and social impairment with reduced reliability and productivity. Importantly, at the time of the June 2015 examination, the Veteran had been married for 21 years and was still working full time. Importantly, the VA examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, which is the criteria for a lesser 30 percent rating. The prior May 2014 VA examination found that the Veteran met the criteria for a 10 percent rating based on his occupational and social impairment. In this regard, the examiner found 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, or; symptom. In sum, the Veteran’s symptoms do not more closely approximate the types of symptoms contemplated by a 70 percent rating, and therefore, a 70 percent rating is not warranted during this period. See Vazquez-Claudio, 713 F.3d at 114 (holding 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”). Although the 70 percent rating criteria contemplate deficiencies in “most areas,” including work, school, family relations, judgment, thinking, or mood, such deficiencies must be “due to” the symptoms listed for that rating level, “or others or others of similar severity, frequency, and duration.” Vazquez Claudio, supra. That is, simply because this Veteran has depressed mood, and because the 70 percent level contemplates a deficiency these symptoms among other areas, does not mean his PTSD rises to the 70 percent level. Indeed, the 50 percent criteria contemplate some form of mood impairment. Furthermore, as documented in the VA examinations as well as VA clinical records, at no point prior to March 29, 2016 has the Veteran exhibited PTSD symptoms such as near continuous panic, obsessional rituals or neglect of personal hygiene, impaired impulse control or suicidal/homicidal ideation. In sum, prior to March 29, 2016, the Veteran’s symptoms did not more nearly approximate the criteria for a 70 percent disability rating. The criteria for a 50 percent rating more accurately described the Veteran’s level of social and occupational impairment, including disturbances in motivation and mood. The Board finds that his PTSD impairment was adequately contemplated by the 50 percent rating. In determining that the criteria for a rating in excess of 50 percent for the Veteran’s service-connected PTSD are not met, the Board has considered the applicable rating criteria not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for the psychiatric disability in question. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Moreover, the preponderance of the evidence is against a higher evaluation of 100 percent from March 29, 2016. Importantly, as discussed above, the March 2020 VA examiner clearly found that the Veteran had occupational and social impairment with deficiencies in most areas, which is the criteria for the current 70 percent rating. Again, the symptoms noted above are all contemplated in the current 70 percent rating. The examiner founds that the Veteran was casually dressed/groomed. He demonstrated good eye contact. His speech was circumstantial at times, but overall appropriate. His mood and affect were depressed, anxious. He was behaviorally stable, alert and oriented times 4. His thoughts were linear, goal-directed, appropriate. He expressly denied suicidal ideation, audio/visual hallucinations and homicidal ideation. His insight and judgment were fair. His activities of daily living were intact. The remaining VA medical records while documenting impairment in social and occupational functioning, do not reflect total social and occupational impairment. In this regard, the Veteran has been consistently alert and fully oriented; his thought processes and communications were not grossly impaired; and his speech was clear and logical. The medical evidence of record clearly showed that the Veteran did not have persistent delusions or hallucinations, or grossly inappropriate behavior. Further, there is no medical evidence of a persistent danger to hurting self or others. Moreover, there has been no medical finding that the Veteran’s memory loss was to such an extent that he consistently did not remember names of close relatives, his own occupation or his own name. Importantly, he has been able to consistently perform his activities of daily living. Further, the evidence shows that the Veteran is still employed full time. In sum, the degree of PTSD impairment is adequately contemplated by the current 70 percent rating from March 29, 2016. There is simply no showing of total occupational and social impairment so as to warrant the next-higher 100 percent evaluation. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his PTSD. The Board acknowledges that they, in advancing this appeal, believe that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether further staged ratings are appropriate for the Veteran’s service-connected PTSD. See Fenderson, supra. However, the Board finds that his symptomatology had been stable both before and after the March 29, 2016 effective date; therefore, assigning further staged ratings for such disability is not warranted. In sum, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 70 percent disability rating, but no higher, is warranted from March 29, 2016. However, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 50 percent for PTSD prior to March 29, 2016. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.