Citation Nr: 21012304 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 190426-7666 DATE: March 4, 2021 ORDER 1. Entitlement to an increased initial evaluation in excess of 30 percent for PTSD prior to November 7, 2011 is denied. 2. Entitlement to an evaluation of 70 percent, and no higher, from November 7, 2011 to October 16, 2013 is granted. 3. Entitlement to an increased evaluation in excess of 30 percent for PTSD from October 17, 2013 forward is denied. FINDINGS OF FACT 1. Prior to November 7, 2011, the preponderance of the evidence indicates that the Veteran’s PTSD was manifested by mild anxiety, avoidance, numb feelings, sleep impairment, and hypervigilance. 2. From November 7, 2011 to October 16, 2013, the preponderance of the evidence indicates that the Veteran’s PTSD was manifested by disturbed sleep or excessive sleeping, thoughts of death or suicide, crying spells, excessive worrying, detachment or estrangement, intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of Vietnam, restricted range of affect, and irritability or outburst of anger. 3. From October 17, 2013 forward, the preponderance of the evidence indicates that the Veteran’s PTSD was manifested by low mood, low energy and interest, poor sleep, and mild depression. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for PTSD prior to November 7, 2011 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an evaluation of 70 percent, and no higher, for PTSD from November 7, 2011 to October 16, 2013 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for an evaluation in excess of 30 percent for PTSD from October 17, 2013 forward have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 until March 1971 and again in February 2002 until January 2003. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2019 rating decision of the Department of Veterans Affairs (VA) Winston-Salem, North Carolina regional office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program, the Rapid Appeals Modernization Program (RAMP). This decision has been written consistent with the new AMA framework. In June 2018, the Veteran elected to participate in the RAMP appeal process and requested a “higher-level review” of the claim. The RO conducted a higher-level review in a February 2019 rating decision which confirmed and continued the Veteran’s 30 percent disability rating for PTSD, noting a favorable finding that the Veteran was previously service connected for PTSD. An appeal notification letter was issued to the Veteran in February 2019. In March 2019, the Veteran appealed the February 2019 rating decision directly to the Board, electing the “direct review” process. The Veteran did request a hearing on this matter in March 2014; however, after opting into RAMP, the hearing request was no longer valid. A November 2019 Board decision denied an initial rating in excess of 30 percent for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted the August 2020 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board’s decision. Therefore, such issue returns to the Board for further consideration. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Most psychiatric disorders, including PTSD, depression and anxiety disorder, although assigned separate diagnostic codes, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. 100 percent disability rating will be assigned 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. 70 percent disability 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 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. 50 percent rating 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. 30 percent rating is warranted for 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). Code 9411. 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 disability 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. 1. Entitlement to an increased initial evaluation in excess of 30 percent for PTSD prior to November 7, 2011 is denied. The parties to the JMR determined that the Board erred by failing to provide an adequate statement of reasons or bases for its decision. Specifically, the JMR notes a failure to address the June 2012 VA examination, as well as the May 2011 letter from the Veteran’s treating psychologist. A July 2008 Nurse Assessment indicates the Veteran suffers from mild anxiety. A November 2009 Mental Health Initial Evaluation notes psychiatric symptoms such as disturbed sleep, nightmares, flashbacks, and cold sweats. Cognitive deficits were recorded as reactions to reminders, avoidance, numb feelings, and hypervigilance. During the interview, the Veteran reported being divorced with two sons, both of whom he stays in contact with. Upon examination, the Veteran was noted to be oriented to time, person, and place, casually dressed, good speech with normal rate and tone, slightly flat affect, good insight, judgment, and cognition, and a denial of any suicidal or homicidal ideations, or visual or auditory hallucinations. In December 2009, the Veteran was evaluated by a VA psychiatrist. The Veteran reported that his main concern was his inability to sleep. He further reported cold sweats, but denied depression. Upon examination, the examiner noted the Veteran’s neat dress, normal speech, full range affect, with no evidence of psychosis. In November 2010, the Veteran reported low mood, low energy and interest, and poor sleep. He denied poor concentration or self-worth, feelings of hopelessness, and ideas that life is not worth living. Based on a review of the record, the Board finds, the evaluation of 30 percent prior to November 7, 2011 was consistent with the severity of the Veteran’s PTSD. The findings in VA treatment and examinations above reflect 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: anxiety, sleep impairment, suspiciousness, and low mood, energy, and interest. Overall, the Veteran’s symptoms and functional impairment more closely reflects the criteria for a 30 percent evaluation. The Board considered a 50 percent evaluation and found that it was not warranted as the Veteran’s symptoms did not reflect 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. In fact, the November 2009 VA examination report indicated that the Veteran was oriented to time, person, and place, had good speech with normal rate and tone, and possessed good insight, judgment, and cognition. Additionally, in November 2010, the Veteran denied any instances of poor concentration. The Board acknowledges the VA examiner’s notation of slightly flat affect; however, the Board finds that this one notation of slightly flat affect indicates occasional impairment consistent with reduced reliability and productivity during this period. Moreover, the Board acknowledges the fact that the record notes some difficulty in relationships considering the Veteran’s report of being divorced; however, considering the Veteran’s report that he keeps in contact with his two sons, the Veteran’s impairment level is best described as occasional occupational and social impairments due to intermittent periods of inability to perform tasks. Thus, based on a review of the evidence of record, the Board finds the Veteran’s PTSD symptomatology more nearly approximates the 30 percent criteria prior to November 7, 2011. In light of the foregoing, it is the Board’s conclusion that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for the Veteran’s PTSD prior to November 7, 2011. 2. Entitlement to an evaluation of 70 percent, and no higher, from November 7, 2011 to October 16, 2013 is granted. A private November 2011 evaluation noted the Veteran’s recurrent nightmares related to Vietnam, intense memories of sights, sounds, or smells related to Vietnam, intense emotional and physical reactions to things related to Vietnam, feelings of disconnection, alienation to others, lack of pleasant anticipation about the future, frequent irritability and outbursts of anger, and feeling perpetually “on guard.” The report further indicated symptoms such as excessive sleeping, thought of death or suicide, crying spells, chills or hot flashes, and excessive worrying. Regarding relationships, the November 2011 private report noted a strain on the Veteran’s relationships because of his PTSD symptoms. Specifically, the Veteran was reported to have two marriages end in divorce. The examiner noted the Veteran’s report of staying to himself most of the time because of his fear of becoming attached to anyone, or being provoked by others into a rage. The Veteran was afforded a VA examination for his PTSD in June 2012. The Veteran reported feelings of anxiety, and being married and divorced twice, resulting in two children which he communicates with twice a month. The examiner noted feelings of detachment or estrangement from others, restricted range of affect, irritability or outbursts of anger, difficulty concentrating, and hypervigilance. The Board finds that, overall, these reports provide evidence in support of a 70 percent evaluation from November 7, 2011 to October 16, 2013. As discussed, the private November 2011 evaluation report shows evidence of symptomatology commensurate with a rating of 70 percent. Specifically, there is an indication that the Veteran’s PTSD manifests as suicidal ideation, inability to establish and maintain effective relationships, frequent irritability and outbursts of anger, and intense emotional and physical reactions to things related to Vietnam. Resolving any doubt in favor of the Veteran, the Board finds that his symptoms more closely approximate the level of social and occupational impairment consistent with a 70 percent rating for this period. The Board, however, finds that the record is against a finding of total impairment. The record does not reveal symptoms such as persistent delusions or hallucinations, grossly inappropriate behavior, gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, disorientation to time or place, nor memory loss for names of close relatives, own occupation, or own name rendering him completely impaired socially and occupationally. In fact, during the June 2012 examination, the Veteran correctly remembered and reported being married twice and having two children. As such, the record is against a finding of total social and occupational impairment. In sum, the Board finds that a 70 percent rating, and no higher, is warranted for the Veteran’s PTSD from November 7, 2011 to October 16, 2013. 3. Entitlement to an increased evaluation in excess of 30 percent for PTSD from October 17, 2013 forward is denied. From October 17, 2013 forward, the evidence does not more nearly reflect occupational and social impairment with reduced reliability and productivity due to the severity, frequency, and duration of psychiatric symptoms. 38 C.F.R. §§ 4.7, 4.130, DC 9411. For the period in question, VA treatment records essentially reflect treatment for other conditions. It is noted, however, in a June 2012 VA treatment report that the Veteran is a low risk for suicide. Moreover, a VA mental health examination was conducted in March 2013. Therein, the Veteran reported sleep disturbances, chronic intrusive thoughts, ruminating, worry, and anxiety. The Veteran denied suicidal ideation. During an October 2013 Mental Health Evaluation, the Veteran reported frequent nightmares, cold sweats, difficulty sleeping, constant hypervigilance, avoidance of reminders of Vietnam such as rain, and certain foods, depression, fatigue, and decreased self-worth. Upon examination, the Veteran revealed fair eye contact, orientation to person, place, and time, normal speech, depressed and irritable mood, full range affect, logical/linear/goal-directed thought process, normal perception, and hypervigilant attention span. After considering the evidence of record, the Board finds that the Veteran’s symptoms approximate the criteria for an evaluation of 30 percent for the period prior to October 17, 2013. Overall, the Veteran has not demonstrated a level of impairment consistent with the 50 percent criteria, nor have the Veteran’s symptoms caused occupational and social functioning with reduced reliability or productivity; with deficiencies in most of the areas; or resulting in total occupational and social impairment as referenced by the 70 and 100 percent evaluation criteria. The criteria for the next higher rating of 50 percent have not been met or approximated for the period prior to October 5, 2017. See 38 C.F.R. § 4.130, Diagnostic Code 9411. (Continued on the next page)   Therefore, from October 17, 2013 forward, an evaluation in excess of 30 percent is not warranted as the evidence does not more nearly reflect occupational and social impairment with reduced reliability and productivity due to the severity, frequency, and duration of psychiatric symptoms or greater symptoms. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.