Citation Nr: 21012972 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-56 203 DATE: March 8, 2021 ORDER Entitlement to an initial rating more than 30 percent for posttraumatic stress disorder (PTSD) for the period prior to February 14, 2020 is denied. Entitlement to a rating more than 50 percent for PTSD for the period after February 14, 2020 is denied. FINDINGS OF FACT 1. For the period prior to February 14, 2020, the Veteran’s PTSD symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Symptoms of occupational and social impairment with reduced reliability and productivity were not demonstrated. 2. For the period after February 14, 2020, the Veteran’s PTSD symptoms have resulted in occupational and social impairment with reduced reliability and productivity. Symptoms of occupational and social impairment in most areas have not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating more than 30 percent for posttraumatic stress disorder (PTSD) for the period prior to February 14, 2020 have not been met. U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.132, Diagnostic Code 9411 (2019). 2. The criteria for entitlement to a rating more than 50 percent for PTSD for the period after February 14, 2020 have not been met. U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.132, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1981 to February 1984 and from October 1990 to May 1991. In September 2019, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In November 2019, the Board remanded the Veteran’s appeal for evidentiary development. During development, a September 2020 rating decision increased the Veteran’s PTSD to 50 percent disabling, effective February 14, 2020. Thus, the claim has resulted in staged rating. The matter has since been returned to the Board for further consideration. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2019); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to an initial rating more than 30 percent for posttraumatic stress disorder (PTSD) for the period prior to February 14, 2020. 2. Entitlement to a rating more than 50 percent for PTSD for the period after February 14, 2020. As discussed above, a September 2020 rating decision increased the Veteran’s PTSD from 30 percent to 50 percent disabling, effective February 14, 2020 (date of VA examination). The Veteran seeks entitlement to an initial rating more than 30 percent prior to February 14, 2020 and in excess of 50 percent thereafter. The Veteran’s PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, and is subject to the criteria of the General Rating Formula for Mental Disorders that provide for the following: A 30 percent rating is where 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). Id. A 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; and difficulty in establishing and maintaining effective work and social relationships. Id. 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. See Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Based on the evidence presented, the Board finds that an initial rating more than 30 percent for PTSD prior to February 14, 2020 is not warranted. A review of the record discloses that the Veteran’s symptoms the earlier period were more characteristic of a disability picture that is contemplated by a 30 percent rating rather than that contemplated by a 50 percent rating or higher under Diagnostic Code 9411. Few of the type of criteria contemplated for a 50 percent rating or higher have been demonstrated. Similarly, the Board also finds that a rating in excess of 50 percent for PTSD after February 14, 2020 is not warranted. Further discussion follows. To that end, the Board notes that the Veteran has received VA and private treatment for his PTSD, including some prescription medication and therapy. Treatment records through 2015 mostly show that the Veteran’s mental status and memory was mostly normal and he was oriented as to time, place, and person. The Veteran received a VA examination in September 2015, wherein he was diagnosed with PTSD. The Veteran reported that he was divorced and is now married to his second wife for over 10 years and they have one 10 year old daughter living with them, along with a stepdaughter. He stated that he has 3 other children with his first wife, who he still sees on occasion. He also stated that he works, does carpentry and remodeling around the house, and runs about 4 times a week to clear his mind. He claimed to attend church regularly as well. The examiner noted that the Veteran’s PTSD includes symptoms of anxiety, panic attacks that occur weekly or less often, and mild memory loss. He was alert, oriented, and cooperative. The examiner indicated that the Veteran is a rather soft spoken man and has a euthymic mood. The examiner found that the Veteran’s PTSD causes 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; symptoms controlled by medication. The examiner opined that the Veteran’s PTSD is at least as likely as not related to his service. The Board observes that this examination and opinion eventually resulted in a grant of entitlement to service connection for PTSD and formed the basis for his initial 30 percent rating, effective January 15, 2014. Additional VA and private medical records through 2018 show ongoing mental health treatment. An August 2017 record shows the Veteran reported intermittent panic attacks, hypervigilance, and avoidance of crowds. He denied any suicidal or homicidal ideation and any audio/visual hallucinations. A February 2018 treatment record noted he again reported intermittent panic attacks. Treatment records also indicate he deferred mental health treatment at the VA and reported being satisfied with his current medication management. The Board notes that the June 2018 Supplemental Statement of the Case (SSOC) refers to a VA examination dated October 23, 2017. During the September 2019 hearing, the Veteran and his representative also alluded to a VA examination conducted around that date. The Veteran then requested another VA examination and complained of increased memory problems, severe anxiety, and difficulty sleeping. During subsequent development, no VA examination around October 2017 could be located. Additional VA treatment reports through 2019 reveal that the Veteran denied any suicidal or homicidal ideations and denied any hallucinations or delusions. While his mood was sometimes noted as anxious, his orientation, concentration, and attention were all good. Some of these reports also indicate that his wife was experiencing some health problems, which triggered his anxiety and mood swings. Pursuant to the Board’s November 2019 remand, the Veteran underwent another VA examination on February 14, 2020 and his previous diagnosis of PTSD was confirmed. The examiner remarked that the Veteran was still seeing a private provider for most of his mental health treatment, but in the summer of 2019 he sought additional treatment through VA, wherein he has been assessed and undergoes cognitive therapy. The Veteran reported that his family life was the same, that he still runs a few times a week, and regularly attends church. The examiner noted that the Veteran’s PTSD includes symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The examiner reported that the Veteran was alert, oriented, and cooperative. It was noted that he had a fleeting thought of suicide (absent urge or intent), but didn’t like to talk about it because his brother committed suicide. The examiner found that the Veteran’s PTSD causes occupational and social impairment with reduced reliability and productivity. The examiner provided the following remarks: Findings suggest this [Veteran] is illustrative of someone who tends to minimize concerns, tries to “fix” things himself, and as such is likely to minimize [symptoms] upon both treatment and C&P evaluation efforts. Today he appears more forthcoming of the degree he struggles, and the propensity he has for PTSD related panic triggers. Primary dx formulation stays the same over the course of the previous and present C&P assessments. Chronic PTSD with PTSD triggered panic/anxiety attacks. His reflections about hypervigilance, anxiety episodes, and stressor avoidance suggests a more profuse social impairment than previously noted. The Board acknowledges that this examination resulted in an increased 50 percent rating for PTSD, effective February 14, 2020 (date of VA examination). The above findings justify no more than a 30 percent rating for the period prior to February 14, 2020. The Board finds such symptoms did not rise to the level of occupational and social impairment with reduced reliability and productivity. As such, the Veteran did not display any symptoms that mirrored flattened affect, speech disturbances, memory impairment, difficulty understanding complex commands, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective relationships. The September 2015 VA examination revealed that the Veteran’s orientation, appearance, personal hygiene, behavior, communication, speech, judgment, and abstract thinking were all within normal limits. The Board notes that while the Veteran reported intermittent panic attacks, hypervigilance, and avoidance of crowds, he also denied any suicidal or homicidal ideation and any audio/visual hallucinations. The Veteran also reported that he attends church regularly, enjoys working on his property, and exercises several times per week. Although the VA examiner had the opportunity to do so, the examiner did not conclude that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. Finally, while the VA treatment reports discussed above document panic attacks and avoidance of crowds, his symptoms were mostly reported as stable during this time period and often well-controlled with medication and therapy. For the reasons stated above and given the absence of symptoms prior to February 14, 2020 such 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships, the Board finds against a 50 percent rating or higher for the period prior to February 14, 2020. Given its review of the medical evidence of record, the Board also finds that for the period after February 14, 2020, the Veteran’s service-connected PTSD is shown to be essentially productive of occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. In this regard, the Board notes that the February 14, 2020 VA examiner remarked that the Veteran’s PTSD causes occupational and social impairment with reduced reliability and productivity. Moreover, the available treatment records indicate that the Veteran’s symptoms were mostly under control, despite some sleep problems and disturbances of mood. He also maintains contact with his children and has a normal relationship with his wife. For the reasons stated above and given the absence of symptoms such as 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; and given the absence of an inability to establish and maintain effective relationships, the Board finds against an a rating of 70 percent rating or higher for the period after February 14, 2020. The Board finds that the Veteran has been competent and credible when reporting his symptoms. The medical and lay evidence, however, establish that at best, there has been occupational and social impairment with reduced reliability and productivity, but occupational and social impairment with deficiencies in most areas has not been shown. Although the Veteran reports some social and impairment, problems with sleep disturbance, and anxiety, such symptoms do not warrant a 70 percent evaluation or higher when all the other manifestations are considered. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In sum, the Veteran’s PTSD for the period prior to February 14, 2020 was more characteristic of a disability picture that is contemplated by a 30 percent rating and more characteristic of a 50 percent rating thereafter. Neither the lay nor credible medical evidence shows his symptoms met the level required for a 50 percent evaluation prior to February 14, 2020, nor do they suggest a rating in excess of 50   percent for the period thereafter. In reaching this decision the Board considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.