Citation Nr: 21015079 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-21 116 DATE: March 16, 2021 ORDER An initial rating of 50 percent for posttraumatic stress disorder (PTSD) prior to February 17, 2018 is granted. FINDING OF FACT Prior to February 17, 2018 the Veteran’s PTSD manifested through occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Prior to February 17, 2018, criteria for a rating of 50 percent, but no higher, for PTSD are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in December 2017 and October 2019. In August 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. The most recent October 2019 Board decision denied the claim for a rating in excess of 30 percent prior to February 17, 2018. The Veteran appealed the 2019 denial to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court issued an order granting a Joint Motion for Partial Remand (JMPR), and vacated the 2019 decision regarding the period prior to February 17, 2018. The Veteran did not challenge the PTSD rating from February 17, 2018 onward as such this decision will focus on the period prior to this date. Increased Rating 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. § 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). Where 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, 126 (1999). Additionally, 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. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). An initial rating of 50 percent for PTSD prior to February 17, 2018 The Veteran has an initial rating of 30 percent for his PTSD prior to February 17, 2018 under DC 9411. 38 C.F.R. § 4.130. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms 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; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. After review of the relevant medical and lay evidence, the Board finds that prior to February 17, 2018 a rating of 50 percent, but no higher, is warranted. Turning to the evidence of record, the Veteran was afforded a VA examination in June 2013. Documented symptoms were anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. He reported full-time employment as a senior vice president of sales with a positive history of work evaluations. He denied any history of disciplinary actions, difficulty with being present or on time, difficulty with pace or focus, or difficulty with relationships with co-workers. He also denied any suicidal/homicidal ideation. His wife passed away two years prior and he had a positive relationship with his two grown children. The examiner noted that his prognosis for improvement was estimated to be good based on the Veteran’s current functional presentation. His symptoms manifested in 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. In July 2013, the Veteran’s therapist reported that the Veteran had been receiving treatment, including individual and group therapy since September 2012. It was noted that his symptoms consistently remained in the moderate range. These issues were anger, irritability, harsh reactions, difficulty trusting/relating to others, loss of interest in pleasurable activities, overwhelmed feelings, depression, nightmares, sleep problems, physical sensations, isolation, avoidance, startle reactions, hypervigilance, intrusive thoughts, impulsiveness, difficulty concentrating, morbid thinking, and employment difficulties. His issues were ongoing for many years, but the severity had increased in the last couple of years. This was evidenced by frequent problems with his ability to work as he used to in the past, relationship problems with family, health problems, and constantly having difficulty a sense of control over the above issues. In August 2017, the Veteran testified that he recently began seeking treatment for his PTSD. He was self-employed most of his adult life and currently owned and operated a whole-sale supply company. He indicated that he did not have too many friends and he had good relations with some of the people he worked with. He reported that had panic attacks and episodes of rage. He continued to have sleep problems and short-term memory problems that affected his work. His symptoms, including his increasing anger made it difficult for him to cope with people generally, as well as customers. Medical records show that the Veteran sought treatment again in March 2017 after stopping in 2013. In July 2017, he reported continuing to work full time and traveling for work. He also indicated that his anger/rage issues were getting worse and he still had trouble with sleep. He described his relationship with his girlfriend and children as very close and reported having several friends as his support system. He did not have too many interests other than golfing. In September 2017, he continued to report sleep and anger problems. He also used cannabis and drank four to six drinks daily. He was fine in managing his job. In January 2018, he reported doing better, including decreased depression, after beginning to take medication several months prior. He continued to have anxiety, especially in large crowds. During this period, his affect ranged from restricted and angry at times to full range and his judgment ranged from fair to impaired. His memory was found to be intact and he was fully oriented to person, place and time. After review of the competent and probative evidence, and when resolving reasonable doubt in favor of the Veteran, the Board finds that an initial rating of 50 percent prior to February 17, 2018, but no higher, is warranted. 38 C.F.R. § 4.7. When viewing his symptoms as a whole, the Board concludes that his symptoms more nearly approximated a rating of 50 percent. In this regard, the Veteran’s symptoms included impaired judgment and difficulty in establishing and maintaining effective work and social relationships. His therapist described his symptoms as consistently remaining in the moderate range. These symptoms are demonstrable of social and occupational impairment with reduced reliability and productivity. However, the Board further finds that the frequency, duration, and severity of the Veteran’s psychiatric symptoms did not result in occupational and social impairment, with deficiencies in most areas. In this regard, the examination and the medical records generally show clear, logical, linear, coherent and goal directed thought processes. He did not report either suicidal or homicidal ideations. He also maintained strong personal relationships with his children, girlfriend, and several close friends. He indicated that his sleep and memory problems were affecting his work, but he was also employed full-time and reported a positive work history. Here, the frequency, duration and severity of the Veteran’s symptoms do not cause occupational and social impairment to warrant the assignment of a higher rating. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list but are examples of the type and severity of symptoms that indicate a certain level of disability. After examining the Veteran’s displayed PTSD symptoms and the associated impairment, however, the Board concludes that the Veteran’s symptomatology more nearly approximates the criteria for a rating of 50 percent for this period on appeal and the criteria for a 70 percent rating are not met. Therefore, after looking at the totality of the Veteran's PTSD picture, the Board finds that the preponderance of the evidence shown displayed symptoms that warrant an initial rating of 50 percent prior to February 17, 2018, but no higher, is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.