Citation Nr: 21013373 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-21 692 DATE: March 9, 2021 ORDER 1. Subject to the law and regulations governing payment of monetary benefits, entitlement to a 50 percent initial evaluation for service-connected posttraumatic stress disorder (PTSD), but no higher, from February 15, 2008, to July 10, 2011, exclusive of period of active duty from March 9, 2008 to September 2, 2010, is granted. 2. Subject to the law and regulations governing payment of monetary benefits, entitlement to a 70 percent initial evaluation, but no higher, for service-connected PTSD from January 4, 2012, to November 23, 2020, is granted. 3. Subject to the law and regulations governing payment of monetary benefits, entitlement to an initial evaluation in excess of 70 percent from November 24, 2020, is denied. FINDINGS OF FACT 1. From February 15, 2008, to December 15, 2016, exclusive of periods of active duty from March 9, 2008 to September 2, 2010 and from July 11, 2011 to January 3, 2012, the Veteran’s PTSD has been characterized by no more than occupational and social impairment with reduced reliability and productivity due to symptoms. 2. From December 16, 2016, the Veteran’s PTSD has been characterized by occupational and social impairment with deficiencies in most areas, but without total social and occupational impairment. 3. The severity, frequency, and duration of the Veteran’s symptoms from November 24, 2020, do not result in or more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a 50 percent initial evaluation, but no higher, for service-connected PTSD are met from February 15, 2008, to March 8, 2008, and from September 3, 2010 to July 10, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a 70 percent initial evaluation, but no higher, for service-connected PTSD are met from January 4, 2012, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 2000 to November 2003, January 2005 to February 2008, March 2008 to September 2010 and from July 2011 to January 2012. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). Most recently, this case was before in the Board in July 2018, when it was remanded for the purpose of obtaining missing records and to allow new evidence to be reviewed in the first instance by the AOJ. This development was accomplished and resulted in a December 2020 rating decision which granted staged ratings. The AOJ’s actions outlined above created “staged” evaluation for this disability but was not a full allowance of the benefits sought. As such, the appeal remained in appellate status and has been recharacterized as stated on the title page. See e.g., AB v. Brown, 6 Vet. App. 35, 38- 39 (1993); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased initial evaluation for service-connected PTSD, currently evaluated 30 percent disabling prior to December 16, 2016, exclusive of periods of active duty from March 9, 2008 to September 2, 2010 and from July 11, 2011 to January 3, 2012, 50 percent disabling from December 16, 2016, to November 23, 2020, and 70 percent disabling, thereafter Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. If two ratings are potentially applicable, 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 30 percent rating: 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 30 percent rating. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 50 percent rating: 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. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 70 percent rating: 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; experiencing 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); inability to establish and maintain effective relationships. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 100 percent rating: 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; and memory loss for names of close relatives, own occupation, or own name. The symptoms enumerated under the schedule for rating 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 disability rating. The focus of an increased rating analysis is on the severity of the symptoms and the level of impairment to occupational and social function rather than how many of the listed symptoms the veteran exhibits. The use of the term “such as” in the rating criteria demonstrates that the symptoms 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. 38 C.F.R. §§ 3.321, 4.2, 4.2, 4.10; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board need not find most, or even some, of the enumerated symptoms are present to award a specific rating. A Veteran may meet the criteria for a given disability rating by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. When determining the appropriate disability evaluation, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a particular Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In adjudicating a claim for a higher rating, all symptoms of a claimant’s service-connected mental disorder that affect the level of occupational or social impairment must be considered. 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). The Veteran has been diagnosed with PTSD, major depressive disorder, and substance use disorder. The Board notes that the Veteran’s service-connected conditions are rated together based on the general criteria for mental disorders. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Mittleider v. West, 11 Vet. App. 181 (1998). Analysis As noted above, the initial evaluation of the Veteran’s service connected for PTSD is staged several times throughout the appeal period for consideration by the Board. 38 C.F.R. § 4.130, DC 9411. This staged initial rating was assigned under the criteria 38 C.F.R. § 4.130, DC 9411, which is the General Rating Formula for Mental Disorders (General Rating Formula). The Veteran contends a higher initial rating is warranted. For clarity, the Board’s analysis of the Veteran’s appeal will be separated based on the dispositions of this decision rather than the current staged ratings. From February 15, 2008, to July 10, 2011 The Veteran was initially granted entitlement to service connection for PTSD effective January 4, 2012. However, he filed an appeal seeking an earlier effective date for the award of service connection and an increased initial evaluation. In a July 2018 decision, the Board granted the Veteran’s appeal seeking an earlier effective date, and the award of service connection was made effective from February 15, 2008. This retroactive award spans periods of the Veteran’s active duty. As benefits may not be provided while on active duty, the periods of the Veteran’s active duty during the appeal period, March 2008 to September 2010, and July 2011 to January 2012, are not for consideration. 38 U.S.C. § 5304 (c); 38 C.F.R. §§ 3.501, 3.654, 3.700 (providing that VA compensation will be discontinued for any period for which the veteran received active service pay). As the Veteran continued to have active service throughout this period, the availability of evidence by which to evaluate his service-connected PTSD is severely limited. However, in January 2011, the Veteran’s mother submitted a statement about the Veteran’s symptoms that is consistent with the Veteran’s service records for this time period. The Veteran’s mother reported that the Veteran was unable to live a normal life as he was very depressed. She reported that his depression was impacting his sleep, as he would sleep during the day and be awake all night. The Veteran’s mother also indicated that the Veteran’s two sons had a difficult time with their father. The Board finds that the evidence of record, including lay statements, that the Veteran has experienced moderate psychiatric symptoms throughout the appeal period. He has consistently and credibly reported experiencing these symptoms. The Board finds that the Veteran’s symptoms indicate occupational and social impairment with reduced reliability and productivity. The Veteran’s symptoms impact most areas of his life, including family relations and mood. After a thorough review of the record, the Board finds that the most probative evidence reflects that the Veteran’s psychiatric symptoms and resulting functional impairment most nearly approximate the criteria for a 50 percent, but not higher, evaluation for the periods of February 15, 2008, to March 8, 2008, and September 3, 2010, to July 10, 2011. The Board finds that the Veteran’s PTSD symptoms do not more closely approximate a 70 percent disability rating due to occupational and social impairment, with deficiencies in most areas. In this regard, the Veteran has been shown to maintain relationships with his children and his mother, has not been shown to have near continuous panic or depressing affecting the ability to function independently, appropriately and effective. Further, the most probative evidence does not show that the Veteran’s PTSD symptoms resulted in total social and occupational impairment from February 15, 2008, to March 8, 2008, and September 3, 2010, to July 10, 2011, as the Veteran openly engaged his family, was a member of the Army Reserve, and participated in full-time employment. The Veteran returned to active duty in the United States Army on July 11, 2011, and served until January 3, 2012. As the Veteran is precluded from receiving VA benefits during this period, the Board need not consider the propriety of the PTSD rating during this time. January 4, 2012, to November 23, 2020 The Veteran is service connected for PTSD and has a 30 percent initial rating under DC 9411 for the period of January 4, 2012, to December 15, 2016, and a 50 percent rating under DC 9411 for the period of December 16, 2016, to November 23, 2020. 38 C.F.R. § 4.130, DC 9411. In January 2012, while at a correctional facility, the Veteran reported suicidal ideations. The reports from the county sheriff documented that the Veteran had limited support, was employed at the time, and had symptoms such as abnormal speech, abnormal thinking, anxious mood, unpredictable behavior, blocked thought process, and poor reasoning, judgement and insight. Also, in January 2012, a mental health note documented the Veteran’s PTSD symptoms and difficulties. The Veteran reported he had an incident with his girlfriend which resulted in the Veteran receiving a domestic violence charge and having to spend approximately two weeks in jail. He reported that he had been feeling down, lacking motivation, and has anxiety when he cannot control something. The Veteran also stated that he is divorced and lives alone with his children who he has primary custody of. It is noted that the Veteran works full time and spends time with his children. In April 2012 the Veteran was afforded a VA medical examination for his PTSD diagnosis. The Veteran was diagnosed with PTSD, major depression, and alcohol abuse, in early partial remission. The VA examiner concluded that the Veteran’s symptoms and functional impairments cannot be distinguished between PTSD and major depression, however the examiner did note that the current symptoms were not related to alcohol abuse, as the Veteran had been in remission for about five months. The examiner summarized the Veteran’s impairments as occupational and social impairment with occasional decrease in work efficiency, although generally functioning satisfactorily. The Veteran’s history was documented by the examiner. The Veteran was residing with his two children from his first marriage, and shared custody of another child with his most recent girlfriend, after a custody battle. The Veteran described his relationship with his children as close, although impacted by the Veteran’s irritability and low frustration tolerance. The Veteran believes that his relationship with his most recent girlfriend dissolved due to his depression. The Veteran reported high levels of distress due to the breakup and custody issues. The Veteran has maintained regular contact with his mother, and has friends, although he does not see them much. He does have hobbies, including working out at the gym and taking his children to the park. The VA examiner indicated that the Veteran had the following symptoms: depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, sadness, pessimism, guilt, agitation, and impaired concentration, among other symptoms. The Veteran’s ex-wife and grandmother both submitted statements in March 2013 regarding the Veteran’s PTSD. The Veteran’s ex-wife stated that the Veteran is easily angered and irritable, he either sleeps or removes himself from the family, or is overanxious. She believes their marriage failed due to the Veteran’s PTSD. The Veteran’s grandmother indicated that the Veteran and his children live with her and she has difficulties managing the Veteran’s rage, isolation, and nervousness. She noted that he does not seem to care about his children or family, and that his relationship with his children is not good. The Veteran’s medical records from June 2014 indicate that the Veteran attempted to take his own life after he found out he would be losing custody of his child. In September 2016, another medical note indicated that the Veteran reported suicidal ideation because he was anxious. The Veteran was afforded another VA medical examination for PTSD in December 2016. The examiner noted that there had been no changes in the Veteran’s symptoms since his last exam in April 2012. The December 2016 examiner noted current diagnoses of PTSD, major depressive disorder, alcohol use disorder, and cannabis use disorder. The December 2016 examiner confirmed that it is not possible to determine which symptoms are attributable to each diagnosis. The examiner concluded that the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner stated that the Veteran was engaged, although the Veteran stated that his fiancée has commented that the Veteran was easily irritable and had anger outbursts. The Veteran has four children, two with his former wife, one with a former girlfriend and one with his fiancée. The Veteran reported that he did not have any friends and has problems trusting others. The Veteran does enjoy working out and boxing, and leisure activities with his family, although he is hypervigilant and irritable during these activities. During the examination the Veteran reported that although he is currently unemployed, he had been employed in November 2016, but left the job due potential legal concerns. The Veteran was incarcerated from 2014 to May 2015. Since April 2012 the Veteran reported enrollment in a residential treatment program three times, each time leaving after a short period due to unauthorized absences, failing to attend groups, and leaving against medical advice. The Veteran reported no changes in his PTSD symptoms since 2012. The December 2016 examiner documented the Veteran’s symptoms as: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. The Board finds that the evidence of record, including an April 2012 and December 2016 VA examinations for PTSD, the Veteran’s VA treatment records, and the Veteran’s lay statements reflect that the Veteran has experienced severe psychiatric symptoms throughout the appeal period. He has consistently and credibly reported experiencing these symptoms. The Board additionally finds that the Veteran’s symptoms indicate occupational and social impairment with deficiencies in most areas. The Veteran’s symptoms impact almost every area of his life, including work, family relations (including accusations of domestic violence), and mood. He has had difficulty maintaining relationships, impaired impulse control, difficulty adapting to stressful circumstances, such as inpatient treatment. Board further notes the Veteran reported passive suicidal ideation, a symptom only associated with a 70 percent rating. In Bankhead v. Shulkin No. 15-2404 (Vet. App. May 19, 2017), the Court held that VA regulations do not differentiate between active and passive suicidal ideation; there are no descriptors, modifiers, or indicators in the regulation. The Court held that the language of the regulation indicates that “the presence of suicidal ideation alone” may cause occupational and social impairment with deficiencies in most areas. After a thorough review of the record, the Board finds that the most probative evidence reflects that the Veteran’s psychiatric symptoms and resulting functional impairment most nearly approximate the criteria for a 70 percent, but not higher, evaluation throughout the entirety of the appeal period. The Board finds that the Veteran’s PTSD symptoms do not more closely approximate a 100 percent disability rating due to total occupational and social impairment. In this regard, the Veteran has not been shown to have gross impairment in thought process or communication, delusions or hallucinations, or to have persistent danger of hurting himself or others. Although he has difficulties maintaining some familial and social relationships, he is able to maintain relationships with his grandmother, fiancée, and children, and partakes in social settings such as outings with his family and trips to the gym. Although there is some question as to whether the Veteran is capable of gainful employment, total occupational impairment is not shown. November 24, 2020, to the present The Veteran is service connected for PTSD and has a 70 percent rating under DC 9411 for the period from November 24, 2020. 38 C.F.R. § 4.130, DC 9411. This disability is rated according to the General Rating Formula. The Veteran contends a higher rating is warranted. In December 2020 the Veteran was afforded a VA medical examination for his PTSD. The examiner indicated that the Veteran had current diagnoses of PTSD, other substance use disorder, and major depressive disorder. As the previous VA examiners concluded, the December 2020 examiner noted that it is not possible to differentiate which impairment is caused by which mental disorder. The December 2020 examiner concluded that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The Veteran reported that he has a girlfriend. The Veteran is currently living with his mother and his oldest child. He has three other children; he does not get along with the youngest child’s mother. It is noted that the Veteran has chronic legal issues, including domestic violence and incarceration. The examiner noted the following symptoms of the Veteran’s PTSD: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impaired judgement, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the veteran arrived from a moving job and was wearing work clothing. After a thorough review of the record, the Board finds that the most probative evidence reflects that the Veteran’s psychiatric symptoms and resulting functional impairment most nearly approximate the criteria for a 70 percent, but not higher, evaluation effective November 24, 2020. The Board finds that the Veteran’s PTSD symptoms do not more closely approximate a 100 percent disability rating due to total occupational and social impairment. In this regard, the Veteran has not been shown to have gross impairment in thought process or communication, delusions or hallucinations, or to have persistent danger of hurting himself or others. Although he has difficulties maintaining some familial and social relationships, he is able to maintain relationships with his grandmother, fiancée, and children, and partakes in social settings such as outings with his family and trips to the gym. In addition, although the Veteran has indicated that his work in the moving business is inconsistent, he reported to this examination in moving clothes and has not otherwise reported that he is currently unemployable due to this service-connected disability. To the extent that undertaking social situations and relationships may be difficult due to the Veteran’s PTSD symptoms and some impact on his employment, that functional impairment is accounted for in the 70 percent evaluation which the Board has found to be warranted. In sum, because the Veteran’s PTSD symptoms do not result in total social and occupational impairment, assignment of a 100 percent initial evaluation is not warranted from November 24, 2020, to the present. 38 U.S.C. § 5107 (West 2014). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.