Citation Nr: 21013994 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-14 339 DATE: March 11, 2021 ORDER Entitlement to an initial 50 percent rating, but no higher, for posttraumatic stress disorder (PTSD), effective July 27, 2016, is granted. FINDING OF FACT From the date of award of service connection, July 27, 2016, the Veteran’s service-connected PTSD resulted in occupational and social impairment with reduced reliability and productivity due to such symptoms as a depressed mood, anxiety, hypervigilance, irritability, sleep impairment, and disturbances of motivation and mood, but without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 50 percent rating, but no higher, for PTSD have been met, effective July 27, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321, Part 4, including §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from May 1964 to May 1967 with service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision, which granted service connection for PTSD. The Board previously remanded this issue for further development in December 2019. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Further, in the August 2020 rating decision, the agency of original jurisdiction (AOJ) awarded a 50 percent rating for PTSD, effective January 8, 2020. However, higher ratings are available for PTSD both before and after the effective date. As the Veteran is presumed to seek the maximum available benefit for a disability, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to an initial higher rating for PTSD The Veteran asserts that severity of his PTSD symptoms warrant a higher rating. The Veteran filed his claim for service connection on July 27, 2016. The Veteran’s PTSD has been rated as 30 percent disabling prior to January 8, 2020, and 50 percent disabling thereafter. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 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 condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Id. at 126. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Pursuant to that General Rating Formula, a 30 percent disability rating is warranted when 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; and mild memory loss (such as forgetting names, directions, recent events). Further, a 50 percent evaluation 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. Id. The next-higher evaluation of 70 percent 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. Id. As the United States Court of Appeals for the Federal Circuit has held, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, 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, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’“ Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Initially, in applying the rating criteria to the evidence of record, and resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran’s PTSD symptoms more nearly approximate the criteria for a 50 percent evaluation from the date of award of service connection, July 27, 2016. Throughout the course of the appeal, the Veteran has exhibited symptoms that were more consistent with those characteristics of the criteria for a 50 percent rating, such as anxiety, depression, sleep impairment, social isolation, intrusive thoughts, hypervigilance, irritability, disturbances of motivation and mood and difficulty establishing effective work and social relationships. In this regard, the Veteran has reported persistent symptoms, including high anxiety and sleep impairment. His spouse and daughter also reported symptoms of hypervigilance, exaggerated startle response and paranoia. VA and private clinical records document ongoing PTSD treatment for consistent symptoms, such as irritability, isolation, sleep disturbance, intrusive thoughts of military service, and anxiety. The most recent January 2020 VA examination also documented similar symptoms. Although the September 2016 VA examiner found that the Veteran suffered from 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, which is the criteria for a 30 percent rating, the severity and duration of the symptoms described above warrant a higher rating. In sum, the Board finds that the Veteran’s PTSD symptoms more nearly approximates a 50 percent rating. However, the Board concludes that the preponderance of the evidence is against a finding of occupational and social impairment with deficiencies in most areas so to warrant the next higher rating of 70 percent at any time from the date of award of service connection. In view of the aforementioned evidence, the Board finds that the Veteran’s PTSD was primarily characterized by the following signs or symptoms: sleep impairment, anxiety, social isolation, intrusive thoughts, hypervigilance, irritability, disturbances of motivation and mood, and difficulty establishing effective work and social relationships. Essentially, the Board finds that the Veteran’s symptoms are similar to many of those contemplated by the currently assigned 50 percent rating. In particular, the General Rating Formula lists, inter alia, difficulty in establishing and maintaining effective work and social relationships and disturbances of mood and motivation, among the types of symptoms associated with a 50 percent rating. 38 C.F.R. § 4.130. These are not unlike those the Board finds to be associated with this Veteran’s PTSD. Id. Further, the Board also finds that the Veteran’s PTSD symptoms caused occupational and social impairment to a moderate degree. Given the frequency, nature, and duration of those symptoms, as reflected in the medical evidence, the Board finds that they resulted in no more than occupational and social impairment with reduced reliability and productivity. They do not more closely approximate the types of symptoms contemplated by a 70 percent rating, and therefore, a 70 percent rating is not warranted. See Vazquez-Claudio, 713 F.3d at 114 (holding that a Veteran “may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”). Moreover, during this period, the Veteran was able to perform his activities of daily living and maintain a long-term relationship with his spouse. The Board recognizes that the most recent examiner indicated difficulty in adapting to stressful circumstances, including work or a work-like setting, which is one of the criteria for a 70 percent rating. Nevertheless, despite this finding, the VA examiner still found that on the whole the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning. Although the 70 percent rating criteria contemplate deficiencies in “most areas,” including work, school, family relations, judgment, thinking, or mood, such deficiencies must be “due to” the symptoms listed for that rating level, “or others or others of similar severity, frequency, and duration.” Vazquez–Claudio, supra. That is, simply because this Veteran has difficulty in a work setting as well as a depressed mood, and because the 70 percent level contemplates a deficiency these symptoms among other areas, does not mean his PTSD rises to the 70 percent level. Indeed, the 50 percent criteria contemplate some form of mood impairment as well as difficulty in maintaining effective work relationships. Furthermore, as documented in VA examinations as well as VA clinical records, at no point during the course of the appeal has the Veteran exhibited symptoms such as near continuous panic, obsessional rituals that interfere with routine activities or neglect of personal hygiene, impaired impulse control or suicidal/homicidal ideation. Also, his anxiety or depression did not affect his ability to function independently, and the Veteran’s speech was never illogical, obscure or irrelevant. Rather, his speech was normal rate, rhythm and amount. He was consistently alert and oriented to place and person. His hygiene was appropriate. There was no impairment of thought processes, memory or communication. Importantly, as noted above, he has been able to perform his activities of daily living. Moreover, both VA examiners indicate that the Veteran’s PTSD only has a mild effect on his social and occupational functioning. The Board has carefully reviewed and considered the Veteran’s and his family members’ statements regarding the severity of his PTSD. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Moreover, the Board has contemplated the lay statements concerning the severity of the Veteran’s symptoms when assigning the 50 percent from the date of award of service connection. In determining that the criteria for a rating in excess of 50 percent for the Veteran’s service-connected PTSD are not met, the Board has considered the applicable rating criteria not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for the psychiatric disability in question. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board has considered whether staged ratings are appropriate for the Veteran’s service-connected PTSD. See Fenderson, supra. However, the Board find that his symptomatology has been stable since the award of service connection; therefore, assigning staged ratings for such disability is not warranted. In conclusion, an initial 50 percent rating, but no higher, is warranted for the Veteran’s service-connected PTSD, effective July 27, 2016. The Board, however, finds that the preponderance of the evidence is against the Veteran’s claim for a higher rating. In denying such rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.