Citation Nr: 21009815 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 08-02 593 DATE: February 23, 2021 ORDER An initial disability rating of 50 percent for posttraumatic stress disorder (PTSD) prior to December 18, 2018 is granted. A disability rating in excess of 50 percent for PTSD after December 18, 2018 is denied. FINDINGS OF FACT For the entire period on appeal, the Veteran’s PTSD was manifested by symptoms of the type and extent, frequency, and/or severity (as appropriate) that are indicative of occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Prior to December 18, 2018, the criteria for a disability rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.71a, Diagnostic Code 9411. 2. On and after December 18, 2018, 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. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.71a, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to April 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2007 Department of Veterans Affairs (VA) regional office (RO) rating decision. This case has complex procedural history which the Board will summarily review. The Board initially denied a higher initial rating for the Veteran’s service-connected PTSD in a July 2009 decision. The Veteran appealed to the United States Court of Appeals for Veteran’s Claims (Court). The Court vacated and remanded the Veteran’s claim granted the parties’ Joint Motion for Partial Remand (JMPR) in January 2010. In June 2010, the Board again denied a higher initial rating for the Veteran’s PTSD and the Veteran again appealed to the Court. In December 2011, the Court again vacated and remanded the Veteran’s claim pursuant to a Memorandum Decision. In August 2012, July 2013, September 2014 decision, and June 2020, the Board remanded the Veteran’s claim for an increased rating for PTSD. The Board notes that in a March 2019 rating decision, the AOJ granted an increased rating of 50 percent for the Veteran’s service-connected PTSD, effective December 18, 2018. But, as the highest possible rating for this disability has not been assigned for the entire rating period, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). The Board further notes that the Veteran submitted a VA Form 10182 for review of his claim in the modernized review system created by the Appeals Modernization Act. However, the Board could not accept the request because the March 2019, and subsequent December 2019, rating decisions implemented a partial grant of entitlement to a higher disability rating for his PTSD following Board remand and left these issues pending in the legacy system. Accordingly, these issues will be readjudicated in the legacy system. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. PTSD is rated using the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, 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 evaluation will be assigned with evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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. A 70 percent rating 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 ideations; 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 the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating 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 the 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. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating in excess of 30 percent prior to December 18, 2018; and to a rating in excess of 50 percent thereafter. The Veteran contends that his currently assigned staged rating does not adequately compensate him for the symptoms associated with his service-connected PTSD. For the reasons discussed below, the Veteran’s PTSD symptoms most approximate the 50 percent criteria for the entire appeal period. In a February 2007 lay statement, the Veteran contended that he “has a difficult time with relationships. I just don’t like people. I like seclusion. I have few friends. I start a lot of tasks and never finish them, insecure about the future, guilt about surviving the war, and have a terrible time sleeping at night. Sometimes I wake up screaming in the middle of the night due to nightmares.” At an April 2007 psychological assessment, the examiner stated that the Veteran’s mental symptoms began in 1970. The examiner indicated that the Veteran suffered from “sleepless nights, dislike contact with people-prefer seclusion, and nightmares.” The examiner additionally noted that the Veteran exhibited persistent distressing dreams about twice a month, feelings of a foreshortened future, markedly diminished interest in activities, persistent feelings of detachment or estrangement, and emotional numbness. In a March 2008 lay statement, the Veteran’s representative summarized the Veteran’s symptoms as memory problems, impaired judgment, impaired motivation or mood, depression, and irritability. Specifically, the Veteran reported that he must write everything down, or else he would forget. Additionally, the Veteran reported that he has trouble coming to decisions. At a May 2014 VA examination, the examiner opined that the Veteran suffered from symptoms of PTSD including recurrent memories, psychological distress, avoidance of memories, markedly diminished interest in activities, detachment, inability to experience positive emotions, irritability, hypervigilance, sleep impairment, exaggerated startled response, anxiety, night sweats, and anhedonia. The examiner reported no alcohol or drug abuse, suicidal ideations, or delusions. The examiner observed at the interview that the Veteran had good relationships with his wife and children. March 2018 CAPRI records indicate that the Veteran experiences worsening PTSD symptoms, to include flashbacks, brought on by the recent death of his wife. At a non-PTSD related October 2017 VA examination, the VA examiner noted that the Veteran’s “nerves sometimes get bad,” but that he never went to counseling and instead tried to keep busy and active in order “to not think too much about things.” April, May, and July 2018 mental health notes show that the Veteran is trying to simplify his life, spend more time with his family, remains active both physically and socially, and is self-monitoring his mood. February 2019 CAPRI records show that the Veteran remains active around his farm and is in a new relationship with his girlfriend. At a December 2018 VA examination, the examiner noted that the Veteran exhibited several of the same symptoms such as nightmares, flashbacks, intrusive thoughts, increased startle response, panic attacks, hypervigilance, irritability, verbal aggression, isolation, feelings of detachment, sleep impairment, anxiety, suspiciousness, memory loss, and difficulty understanding complex commands. The examiner noted that the Veteran has a stable relationship with his girlfriend and “gets along with everybody.” At an April 2019 VA examination, the examiner noted that the Veteran experienced symptoms such as recurrent distressing memories, avoidance of thoughts, persistent negative beliefs, hypervigilance, exaggerated startled response, and anxiety. The Veteran explained that his mood was “pretty good” at the interview and he denied any current hallucinations or other psychotic symptoms. Upon consideration of the medical and lay evidence in this case, the Board finds that a rating of 50 percent, but no greater, is appropriate for the entire period on appeal. The Board has considered the Veteran’s staged rating for service-connected PTSD; however, the Board finds that his symptomatology has most nearly approximated symptoms such as those exemplified by the 50 percent disability criteria throughout the appeal period. Thus, staged ratings are not warranted. The Board finds that the Veteran has been largely consistent throughout the entire period on appeal regarding the frequency and severity of his PTSD symptoms including impaired judgement, anxiety, detachment, mild memory issues, severe sleep impairment, depression, and hypervigilance. These types of symptoms support entitlement to a 50 percent rating for PTSD. The Board notes that the entire basis for the Court’s first January 2010 remand was the appearance that the Veteran’s PTSD symptoms warranted a 50 percent rating at that time. The Board further notes the parallel between the March 2008 lay statement that the Veteran has memory problems and impaired judgment and the December 2018 VA examiner’s indication that the Veteran has memory loss, and difficulty understanding complex commands. The Board further finds, however, that the Veteran is not entitled to a disability rating in excess of 50 percent for his PTSD at any point on appeal. The medical and lay evidence does not show that the Veteran’s PTSD caused deficiencies in most areas (the basis for a 70 percent rating) during this appeals period. There is no evidence of the symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 70 percent rating, such 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; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. Significantly, the Veteran has good relationships with his family and “gets along with everyone.” These facts all weigh against a rating of 70 percent at any point on appeal. In summary, the Board finds that the Veteran’s PTSD symptoms most approximate the criteria for a 50 percent disability rating for the entire period on appeal. Therefore, for the period prior to December 18, 2018, the Board has applied the benefit of the doubt rule as the Veteran’s symptoms most approximate a higher, initial, 50 percent rating. However, for any period of the appeal, to include after December 18, 2018, the Board finds that the benefit of the doubt rule lacks application as the preponderance of the evidence weighs against the claim for a disability rating in excess of 50 percent. See 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). LESLEY A. REIN 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.