Citation Nr: 21012893 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-08 496 DATE: March 5, 2021 ORDER An initial rating of 70 percent, but no higher, for the service-connected posttraumatic stress disorder (PTSD) with a major depressive disorder is granted for the entirety of the appeal period, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran’s service-connected PTSD with a major depressive disorder has been manifested by no worse than occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood throughout the period on appeal. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for the service-connected PTSD with a major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to May 1969. This current matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2013 rating decision in which the agency of original jurisdiction (AOJ) granted service connection for PTSD with a major depressive disorder and awarded a 50 percent evaluation for this disability, effective from November 14, 2012. During the current appeal, and specifically by a November 2020 rating action, the AOJ granted an increased evaluation of 70 percent, effective from September 13, 2020, for this disability. Increased Rating – PTSD Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; 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). In the current appeal, the Veteran’s PTSD with a major depressive disorder is evaluated as 50 percent disabling, effective from November 14, 2012 through September 12, 2020, and as 70 percent disabling from September 13, 2020, pursuant to DC 9411. 38 C.F.R. § 4.130. Psychiatric disabilities, however diagnosed, are rated under the General Rating Formula for Mental Disorders (General Rating Formula), and the criteria under this formula shall be considered no matter which diagnostic code is assigned. The psychiatric symptoms listed in the rating criteria do not constitute an exhaustive list, 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 (2002). Under the General Rating Formula, a 50 percent rating is assigned when the evidence shows 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is assigned when the evidence shows 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); or inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. Also, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms; the length of remissions; and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign a rating 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran contends that he is entitled to an initial rating in excess of 50 percent for his service-connected PTSD with a major depressive disorder prior to September 13, 2020, and in excess of 70 percent since September 13, 2020. In a November 2012 VA Behavior Health Intake examination, the Veteran reported experiencing depression, irritability, sleep difficulties, and interpersonal isolation. He stated that he was depressed most of the day, nearly every day and that he felt hopeless and helpless. Further, he reported a lack of motivation to do things, lack of pleasure in things, fatigue, feelings of guilt and worthlessness, decreased appetite, nightmares, intrusive thoughts, difficulty concentrating, and hypervigilance. However, he denied suicidal and homicidal ideation, delusions, or hallucinations. The examiner noted that the Veteran was alert and oriented, cooperative, and polite and had adequate eye contact. His appearance and grooming were adequate, his motor activity was within normal limits, and his flow of thoughts was logical and goal oriented. VA mental health visit notes dated in 2013 show that the Veteran reported feeling numb, isolated, detached, anxious, and depressed. He reported that he has trouble controlling his anger and irritability, which he feels contributes to his inability to maintain relationships. He stated that he feels anxious when he leaves his home and that he avoids most adult social situations and activities. He further reported that he has poor focus and difficulty concentrating, he lacks motivation, and he often feels helpless, hopeless, and useless. He also reported experiencing nightmares, trouble sleeping, and hypervigilance. However, he did consistently deny experiencing suicidal and homicidal ideations, hallucinations, or delusions. Examiners noted that his mood was anxious and depressed, but he was always alert and oriented, pleasant, and appropriately dressed and groomed. He made appropriate eye contact, his thought processing was logical and goal oriented, and his speech was normal in rhythm and volume. The Veteran was afforded a VA examination in December 2013. The examiner confirmed the Veteran’s diagnosis of PTSD and a depressive disorder and noted that it was not possible to differentiate which of the Veteran’s symptoms were attributable to which diagnosis. Clinical findings included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and inability to establish and maintain effective relationships. It was noted that the Veteran was capable of managing his own financial affairs. The examiner opined that the Veteran’s symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In September 2020, the Veteran was afforded another VA examination. He reported living alone and feeling isolated and withdrawn. He stated that he has no friends and his sole emotional support is from his daughter. Further, he stated that he feels depressed and his future looks uncertain. Though he is retired, he stated that he feels that his chronic PTSD and depression, impaired focus, low energy and motivation, chronic fatigue, and social isolation prevent him from being able to return to a competitive work setting again. He reported symptoms of: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work like setting; and inability to establish and maintain effective relationships. The examiner noted that the Veteran was cooperative and moderately dysphoric throughout the evaluation. His speech was generally coherent and goal-directed, his grooming and hygiene was adequate, and he was capable of managing his own financial affairs. The examiner opined that he had occupation and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. Based on this evidence, the Board finds that, throughout the appeal period, the Veteran’s service-connected PTSD has more closely approximated the level associated with a 70 percent rating resulting in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran reports experiencing symptoms of near-continuous depression affecting his ability to function, issues controlling his anger and irritability, panic attacks more than once a week, and an inability to maintain effective relationships throughout the appeal period, all of which are symptoms contemplated by the 70 percent rating criteria. See 38 C.F.R. § 4.130, DC 9411. However, the Board finds that at no time during the appeal period has the Veteran’s psychiatric symptomatology met the criteria for 100 percent rating. The evidence has consistently shown that the Veteran’s PTSD with a major depressive disorder is characterized by symptoms that are productive of occupational and social impairment with deficiencies in most areas but not total occupational and social impairment, which is required for the 100 percent rating. Indeed, while severe PTSD symptomatology has been identified, at no time has an examiner observed the Veteran as having gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. Likewise, he has consistently denied suicidal or homicidal ideations, and no examiner has described an inability to perform activities of daily living such as maintain minimal personal hygiene. Further, the Veteran reported that he has been able to maintain a relationship with his daughter throughout the period on appeal. While he did describe his lifestyle as socially isolated, it cannot be concluded that he was totally occupationally and socially impaired during the period on appeal. Thus, the Board concludes that the VA schedular rating criteria for a 100 percent rating have not been met. In reaching this decision, the Board does not dismiss or marginalize the effect that the Veteran’s PTSD has had on his life. The Veteran’s statements paint a picture of his day-to-day struggles with PTSD and a major depressive disorder which often manifested as nightmares, panic attacks, issues with anxiety and aggression, and chronic sleep impairment. However, the Board finds that these symptoms are adequately compensated in the current 70 percent rating. Again, none of these symptoms are reflective of total occupational and social impairment. Thus, a rating in excess of 70 percent for the service-connected PTSD is not warranted. The Board also acknowledges that, in an October 2020 written statement, the Veteran argued that the December 2013 VA examination of record did not adequately represent the severity of his PTSD. In response, the Board points out that, in denying a disability rating in excess of 70 percent, it has not relied solely on the report of any one VA examination. Rather, the Board has assessed the entirety of the Veteran’s disability picture by considering his record as a whole, including his mental health outpatient treatment visits during the appeal period, his VA examinations, and his own statements. Therefore, a rating of 70 percent, but no higher, for the Veteran’s service-connected PTSD with a major depressive disorder is granted for the entirety of the appeal period. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.