Citation Nr: 21013167 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-33 697 DATE: March 8, 2021 ORDER An initial rating in excess of 50 percent for post-traumatic stress disorder with traumatic brain injury is denied. FINDING OF FACT The weight of the competent and probative evidence is against finding that an initial rating in excess of 50 percent for post-traumatic stress disorder with traumatic brain injury is warranted. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD) with traumatic brain injury (TBI) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, 4.126, 4.130, Diagnostic Codes 8045, 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 11, 1986, to April 10, 1989, and January 29, 1991, to April 30, 2011. This matter comes before the Board of Veterans’ Appeals (BOARD) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board and remanded for additional development in August 2018. There has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In a January 2021 rating decision, the RO awarded a partial grant of the benefits sought on appeal and increased the evaluation for PTSD with TBI from 0 percent to 50 percent disabling effective May 1, 2011. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). All regulations that are potentially applicable must be acknowledged and considered. Schafrath, 1 Vet. App. at 593. Psychiatric disabilities are rated based on the General rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that “the presence of all, most, or even some, of the enumerated symptoms” is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. It is not enough for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, “VA must engage in a holistic analysis” of the severity, frequency, and duration of the signs and symptoms of the veteran’s mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. The criteria for a 70 percent rating are as follows: 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; obsessive 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 worklike setting); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The criteria for a 100 percent rating are as follows: 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, own name. 38 C.F.R. § 4.130. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. An evaluation is assigned based on all the evidence of record that bears on occupational and social impairment. 38 C.F.R. § 4.126. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. An initial rating in excess of 50 percent for post-traumatic stress disorder with traumatic brain injury In a January 2021 rating decision, the Veteran was assigned a 50 percent rating for PTSD with TBI under Diagnostic Code 8045-9411. As this is a partial grant of the benefits sought on appeal, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Prior to the January 2021 rating decision, the Veteran’s TBI was evaluated as 10 percent disabling. As some of the symptoms of the Veteran’s PTSD and TBI are clinically indistinguishable, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions was assigned. See 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1). In this instance, the RO determined that a higher assessment was available under mental disorder diagnostic criteria as the evidence indicated a 10 percent evaluation available for symptoms under Diagnostic Code 8045 and a 50 percent evaluation was available for symptoms pursuant to Diagnostic Code 9411. See January 4, 2021, Rating Decision-Narrative. The competent and probative evidence warrants a finding that, throughout the period on appeal, the Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in occupational and social impairment with reduced reliability and productivity. An initial rating in excess of 50 percent is not warranted. The Veteran was afforded a VA examination to assess the severity of the PTSD in November 2019. The examiner found the following symptoms applied to the Veteran: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. November 14, 2019, VA Examination. The Veteran endorsed changes in cognition and mood, including distrust of others, feelings associated with guilt, loss of interest in previously enjoyed activities, and feeling numb and detached. The Veteran explained that he avoids crowds or places he cannot control. He always carries a weapon with him and has approximately 16 cameras at his home. The Veteran denied suicidal ideation, but reported irritability, hypervigilance, and sleep disturbance. The Veteran explained that he did not have friends in his geographical area but maintained contact with 5 close former military friends. The Veteran reported that he started his own hunting guide company in 2012 in which he reported functioning well but discontinued in March 2019 due to health issues. The examiner noted that a diagnosis of TBI was not shown in the records he reviewed. The examiner opined that the mental diagnoses resulted in occupational and social impairment with reduced reliability and productivity. A new examination to re-assess the residuals of TBI was conducted in December 2020. The examiner determined that the Veteran’s subjective symptoms associated with TBI were severe migraine headaches with nausea and hypersensitivity to light and sound, chronic tension headaches, dizziness and insomnia. December 28, 2020, VA Examination. An evaluation of the Veteran’s functional status in the remaining 9 facets of TBI resulted in normal or appropriate findings in judgment, social interaction, orientation, motor activity, visual spatial orientation, neurobehavioral effects, communication and consciousness. With respect to the memory and executive function facet, the examiner opined that the Veteran had complaints of mild memory loss, attention, concentration or executive functions, but without objective evidence on testing. A new PTSD evaluation was conducted, and the examiner opined that it was not possible to differentiate what symptoms are attributable to TBI and PTSD because the symptoms and resulting impairments overlapped. December 30, 2020, VA Examination. The examiner found the Veteran suffered from the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported a positive marriage and explained that he had to shut down his business because of the pandemic and travel restrictions. The examiner concluded that mental diagnoses resulted in occupational and social impairment with reduced reliability and productivity. The December 2020 evaluations for TBI and PTSD are found to be competent, credible and highly probative as they are supported by in-person examination, a review of relevant medical records, and consideration of lay evidence. The opinion and conclusions of the 2019 PTSD examiner are given less probative value as the examiner did not have the opportunity to review all relevant evidence, such as evidence of TBI and its symptomology. The lay statements made by the Veteran during all examinations are deemed competent, credible and highly probative. In light of the foregoing, the Veteran’s combined symptoms are accurately contemplated by his currently assigned 50 percent rating. An initial rating in excess of 50 percent is not warranted as the competent and probative evidence demonstrates that the Veteran’s symptoms resulted in no more than an occupational and social impairment with reduced reliability and productivity. The evidence demonstrating depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships more nearly approximate a 50 percent rating. After engaging in an analysis of the severity, frequency, and duration of the signs and symptoms of the Veteran’s PTSD and TBI, the Veteran’s symptoms are not found to more nearly approximate a 70 percent rating. In fact, the Veteran’s symptoms are specifically contemplated under the rating criteria for a 50 percent or lower evaluation. See 38 C.F.R. § 4.130. In finding that the weight of the competent evidence does not support a higher rating, consideration has been given to the fact that the evidence does not indicate suicidal ideation, obsessional rituals, intermittently illogical speech, near continuous panic or depression affecting the ability to function independently, impaired impulse control, or neglect of personal appearance and hygiene. See id. The record does not demonstrate gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. The Veteran reported mild memory problems, positive marital and family relationships and had no difficulties managing his own hunting guide business. The Veteran has also maintained communication and friendships with military friends and has never expressed suicidal intent or plan. Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood has not been shown by the competent and probative evidence. The preponderance of the evidence is against an initial rating in excess of 50 percent for PTSD with TBI. As the preponderance of the evidence is against the (Continued on next page) claim, the benefit-of-the-doubt is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.