Citation Nr: 21023062 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-30 789 DATE: April 20, 2021 ORDER Prior to April 23, 2014, an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Effective April 23, 2014 to August 30, 2020, a rating of 70 percent, but no higher, is granted for the Veteran’s PTSD. FINDING OF FACT 1. Prior to April 23, 2014, the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity. 2. Effective April 23, 2014 to August 30, 2020, the Veteran’s PTSD was manifested by occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood. It was not manifested by total occupational and social impairment. CONCLUSION OF LAW 1. Prior to April 23, 2014, the criteria for an initial disability evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, Diagnostic Code (DC) 9411. 2. Effective April 23, 2014 to August 31, 2020, the criteria for a disability evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to August 1984 and during the Gulf War era from January 1991 to March 1991. He also served on active duty from October 2004 to October 2005, September 2006 to March 2008, and July 2010 to December 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was most recently remanded in June 2020 for further development, which has been completed. Increased Ratings 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. 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). Service connection for PTSD was granted by way of a May 2011 rating decision. A 10 percent rating was assigned effective December 31, 2010 (the date that the Veteran was discharged from service). Although a notice of disagreement was not received within the one-year period from notice issuance, new and material evidence in the form of VA medical records were received during this period. Thus, the decision on appeal is the May 2011 rating decision. See 38 C.F.R. § 3.156(b). By way of a June 2013 rating decision, the RO increased the rating to 50 percent effective June 22, 2011. The effective date of the 50 percent rating was subsequently changed to December 31, 2010. The RO issued an October 2020 rating decision in which it increased the rating to 100 percent effective August 31, 2020. Consequently, the issue on appeal is whether an initial rating in excess of 50 percent is warranted prior to August 31, 2020. The Veteran’s service-connected PTSD has been rated by the RO under the provisions of Diagnostic Code 9411. Under this regulatory provision: a noncompensable rating is warranted when a mental condition has been diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. a 10 percent rating is warranted when the Veteran experiences 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 continuous medication. 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, mild memory loss (such as forgetting names, directions, recent events). a 50 percent is warranted if the Veteran experiences 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. a 70 percent is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. a 100 percent rating 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).   Prior to April 23, 2014, an initial rating in excess of 50 percent for PTSD is denied. The Veteran underwent a VA examination in May 2011. He reported that he was taking three courses through ITT Tech and studying computer engineering as he was working toward a bachelor’s degree. He stated that he needed a tutor due to concentration problems with schoolwork. He reported that he has been married to his wife for 28 years and that they get along “real well considering what's been going on.” He also stated that he has a 21 year-old daughter with whom he gets along well. He reported that he enjoys antique shopping with his wife, except that it is not as enjoyable as it used to be because he does not like crowded areas. He denied a history of suicide attempts and the history of violence/assaultiveness. Upon examination, the Veteran was clean, neatly groomed, and appropriately dressed. His psychomotor activity was unremarkable. His speech was spontaneous, clear, and coherent. His attitude towards the examiner was cooperative and friendly. His affect was appropriate. His mood was “unsteady.” His attention was intact, and he was oriented toward person, place, and time. Thought process and thought content were unremarkable. He denied delusions. He understood the outcome of his behavior and that he has a problem. His intelligence was average. He reported that he was not sleeping. He stated that if he is lucky, he would get three to four hours of sleep. He denied hallucinations. He did not display any inappropriate behavior. He denied panic attacks, and obsessive/ritualistic behavior. He denied episodes of violence. He was able to maintain minimum personal hygiene. There were no problems with activities of daily living. There were no impairments in thinking or communication observed during the examination. The examiner found that the Veteran’s PTSD was manifested by transient or mild symptoms resulting in decreased work efficiency, with his ability to perform occupational tasks only impaired during periods of significant stress. The Veteran underwent another VA examination in May 2013. He stated that he tends to keep to himself if possible. He reported that he tries to socialize and go to church, but he is uncomfortable in public places particularly if they are noisy and/or crowded. He admitted to being irritable and having anger management issues. He stated that he keeps to himself when he is at home. The examiner found that the Veteran had moderate to severe psychosocial maladjustment. The Veteran reported that he was trying to work as a salesman. He stated he last worked full-time between July and December. He reported anger, attention and concentration problems, and difficulty handling stress and anxiety. He tried to go to school but he has difficulty with comprehension. He stated that he needs extra support from his teachers. The examiner opined that the Veteran had moderate occupational/vocational maladjustment. The Veteran reported that he was taking prescribed medications and that he continues to receive treatment for PTSD. He felt that treatment is helpful, but that he still has moderate to severe levels of depression and anxiety most of the time. He also reported moderate insomnia, and compulsions during the night regarding the security of his house. He reported anger and irritability, issues involving decreased energy, frequent crying spells, panic attacks 4 or 5 times per week of at least moderate intensity, as well as flashbacks and nightmares. He denied suicidal or homicidal ideation or intent. There were no signs of psychosis. He reported persistent complaints of attention and concentration issues. Upon examination, the examiner found that the Veteran’s PTSD symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once per week; chronic sleep impairment; mild memory loss; impairment of short and long-term memory for example retention of only highly learned material while forgetting to complete tasks; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a worklike setting; and obsessional rituals which interfere with routine activities. The examiner deemed the Veteran competent to manage his financial affairs. He deemed the Veteran’s PTSD to be manifested by occupational and social impairment with reduced reliability and productivity. As noted above, prior to the assignment of the Veteran’s 100 percent rating (which is effective August 31, 2020), the Veteran’s PTSD has been rated as 50 percent disabling. In order to warrant a rating in excess of 50 percent, the Veteran’s PTSD must be manifested by occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. The Board finds that the criteria for an initial rating in excess of 50 percent are not met. Neither VA examiner rendered an opinion consistent with the 70 percent rating criteria. The 2011 VA examiner opined that the Veteran’s level of occupational and social impairment overall was best summarized ‘transient or mild symptoms resulting in decreased work efficiency, with his ability to perform occupational tasks only impaired during periods of significant stress.’ This level of impairment is consistent with a 10 percent rating, not a 70 percent rating. The 2013 VA examiner noted that the Veteran had a difficulty establishing and maintaining effective work and social relationships. He did not find that the Veteran had an inability to establish and maintain effective relationships. Regarding social relationships, the Veteran remained married and had a good relationship with her and his daughter. Moreover, except for difficulty in adapting to stressful circumstances (including work or work like setting) and obsessional rituals which interfere with routine activities, none of the symptoms in the criteria have been met. There has been no suicidal ideation; 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; inability to establish and maintain effective relationships. Further, while the May 2013 examiner noted the Veteran had difficulty in adapting to stressful circumstances (including work or work like setting) and obsessional rituals which interfere with routine activities- he opined that the Veteran's level of occupational and social impairment overall was best summarized as ‘occupational and social impairment with reduced reliability and productivity.’ This level of impairment is consistent with a 50 percent rating, not a 70 percent rating. As the preponderance of the evidence is against the assignment of an initial rating in excess of 50 percent prior to April 23, 2014; the benefit of the doubt doctrine does not apply. Effective April 23, 2014 to August 30, 2020, a rating of 70 percent, but no higher, for PTSD is granted. The Veteran underwent a private examination on April 23, 2014. The examiner noted that the Veteran was still working two jobs. He reported that the Veteran’s self-presentation was “vague, easily confused,” but “he listened marginally.” The examiner stated that the Veteran seemed uncertain and not totally comprehending what was asked of him. The Veteran’s attitude toward the examination was reported to be hesitant and tentative, with poor concentration and a short attention span. His psychomotor activity was normal, and his speed patterns tended to be coherent, but digressive and tangential. His ability to “abstract” was marked by fluctuation between abstract and concrete levels. His ability to calculate was slow, but accurate. His affect was reported to be flat and diminished. He described his mood as “happy sometimes.” He also reported mood swings, and inability to stop doing something if he made a mistake. The examiner reported that this was called “catastrophic reaction.” The Veteran denied suicidal ideation or wishes to harm others. He reported agitation when he is home, and delusions that someone is going to break in and cause harm to his family. He denied hallucinations other than flashbacks. Interpersonal relationships were avoidant, detached, and suspicious. Judgment and insight were limited. He was well oriented to person, place, and time. His memory was spotty and inexact. The examiner opined that he was showing signs of early dementia. Associations were relevant, but stream of thought was slow and scattered. The examiner opined that the Veteran has serious impairments. In June 2015, the April 2014 private examiner completed a PTSD Disability Benefits Questionnaire (DBQ) in which he opined that the Veteran’s PTSD is manifested by occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood. He noted that the Veteran suffered from depressed mood; suspiciousness; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impairment of short and long term memory; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impaired abstract thinking; disturbances of motivation and mood; and inability to establish and maintain effective relationships. The Veteran underwent VA examinations in November 2016 and July 2019. The November 2016 VA examiner found that the Veteran’s PTSD symptoms included depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and obsessional rituals which interfere with routine activities. The examiner opined that the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity. The July 2019 VA examiner found that the Veteran’s PTSD symptoms included suspiciousness; chronic sleep impairment; difficulty in establishing and maintaining effective work relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. She found that the Veteran’s PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perfume occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional’s opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). Based on the cumulative private and VA examination findings, the Board resolves all reasonable doubt in the Veteran’s favor to find a 70 percent rating is warranted effective April 23, 2014. The private examination reports of April 2014 and June 2015 and the VA examination reports of November 2016 and July 2019 all include some probative findings supportive of a 70 percent disability rating. The Board is mindful that the VA examiners respectively opined that the Veteran’s level of occupational and social impairment overall, was consistent with 50 and 30 percent ratings. However, in December 2020, a VA examiner who evaluated the Veteran at an August 2020 VA examination and reviewed his clinical records, opined that since 2014 – 2015, the Veteran’s symptoms had dramatically increased, and his occupational and social functioning had deteriorated. Thus, in giving the benefit of the doubt to the Veteran, a rating of 70 percent, but no higher is warranted effective April 23, 2014 to August 30, 2020. Regarding whether a rating in excess of 70 percent is warranted, such a rating would only be warranted if the Veteran’s PTSD was manifested by 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The RO has already granted a 100 percent rating for PTSD effective August 30, 2020. Prior to August 30, 2020, neither the private and VA examination reports nor other medical records contained findings suggestive of total occupational and social impairment. In conclusion, the Board finds that a 70 percent rating, but no higher, is warranted from April 23, 2014 to August 30, 2020. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.