Citation Nr: 21025290 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 13-18 402 DATE: April 27, 2021 ORDER Entitlement to increases in the “staged” ratings for posttraumatic stress disorder (PTSD) are denied. FINDINGS OF FACT 1. Prior to September 15, 2010, the Veteran’s PTSD did not cause occupational and social impairment greater than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From September 15, 2010 to August 16, 2015, his PTSD caused occupational and social impairment with reduced reliability and productivity but not deficiencies in most areas or total occupational and social impairment. 3. Since August 17, 2015, his PTSD has caused occupational and social impairment with deficiencies in most areas but still not total occupational and social impairment.   CONCLUSION OF LAW A rating for the PTSD higher than 30 percent prior to September 15, 2010, higher than 50 percent from September 15, 2010 to August 16, 2015, and higher than 70 percent since August 17, 2015, is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1968 to June 1970. This appeal to the Board of Veterans’ Appeals (Board) originated from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) – which increased the rating for the Veteran’s PTSD from 30 to 50 percent retroactively effective from September 15, 2010, so as of the date he had filed his claim for a higher rating for this service-connected disability. He appealed for an even higher rating and an earlier effective date for that increased rating. A more recent September 2015 rating decision, during the pendency of this appeal, again increased the rating for the PTSD, this from 50 to 70 percent as of August 17, 2015, the date of a VA examination on remand reassessing the severity of this service-connected disability. Thus, the rating for the PTSD has been “staged” to compensate the Veteran for the varying level of severity of this service-connected disability, which is done irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).   This appeal therefore now concerns whether a rating higher than 30 percent was warranted prior to September 15, 2010 (i.e., from sometime during the immediately preceding year, so from September 15, 2009 to September 14, 2010), whether a rating higher than 50 percent was warranted from September 15, 2010 to August 16, 2015, and whether a rating higher than 70 percent has been warranted since August 17, 2015. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). Entitlement to increases in the “staged” ratings for the PTSD Disability evaluations are determined by the application of a schedule of ratings, (Rating Schedule), which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s PTSD is rated under DC 9411 of the General Rating Formula for Mental Disorders. DC 9411 provides for a 30 percent rating 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. A 50 percent rating is warranted when there is 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 rating is warranted where there is 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 worklike 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 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. The use of the term “such as” in 38 C.F.R. § 4.130 indicates the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as mere examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held 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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id.   When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely on social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. When a question arises as to which of two ratings under a particular code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In response to his September 2010 claim for a higher (increased) rating for his PTSD, the Veteran underwent a VA compensation examination in October 2010. He reported nightmares, daily recollections of his traumatic combat experiences, and sleep disturbances – including yelling in his sleep according to his wife. Throughout the examination, however, he exhibited fair eye contact and adequate grooming and was described by the examiner as alert, cooperative, and attentive, albeit with a depressed, anxious affect. He did not appear to be responding to any auditory or visual hallucinations. The examiner chronic, severe PTSD with intense survival guilt. The examiner noted the Veteran had increasing interpersonal and occupational problems that were moderate to severe. The results of that examination were confirmation the Veteran’s PTSD had worsened and, thus, the rating for it was increased from 30 to 50 percent as of the date of receipt of his claim for a higher rating for this service-connected disability, so as of September 15, 2010 rather than just as of the date of that VA examination showing this greater level of impairment. In McGrath v. Gober, 14 Vet. App. 28 (2000), the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that, when evidence is created is irrelevant compared to when the Veteran experienced the symptoms. It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition" (citing 38 U.S.C. § 5110(a)); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date"). The Veteran was next examined by VA in August 2015. He reported that he still lived with his wife and that he had a good relationship with her as well as his children. He reported enjoying attending church and playing golf, but that was the extent of his social activity, and he mostly avoided large crowds and venues. He reported depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, impaired judgement, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances – including work and work-like settings, and impaired impulse control. The examiner confirmed the PTSD diagnosis and explained it caused occupational and social impairment with deficiencies in most areas. The results of that examination were indication the Veteran’s PTSD was even worse, i.e., deserving of an even higher 70 percent rating, and the RO resultantly made this additional increase in rating effective as of the date of that examination showing this even greater level of impairment. The Veteran was most recently examined by VA for his PTSD in February 2021. He reported still having good family relationships, although he had not worked since his last examination. He reported depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impaired judgement, disturbances in motivation and mood, difficulty establishing and maintaining relationships, difficulty adapting to stressful circumstances – including work and worklike settings, and impaired impulse control. The examiner again confirmed the diagnosis of PTSD and explained that it still caused occupational and social impairment with deficiencies in most areas.   Prior to September 15, 2010, the Veteran’s PTSD did not present a disability picture of occupational and social impairment greater than decrease in work efficiency and intermittent periods of inability to perform occupational tasks (which, as mentioned, is contemplated by the criteria for the 30 percent rating he had until September 15, 2010). Occupational and social impairment with reduced reliability and productivity was not shown, such as to warrant a higher 50 percent or even greater rating prior to September 15, 2010. The symptoms shown support that his consequent level of occupational and social impairment was best summarized as due to [only relatively] mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. Accordingly, the 30 percent rating he had prior to September 15, 2010 was appropriate, so including during the year immediately preceding receipt of his increased rating claim on September 15, 2010. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). From September 15, 2010 to August 16, 2015, the Veteran’s PTSD was worse, commensurate with his greater 50 percent rating during this intervening period, since he instead had occupational and social impairment with reduced reliability and productivity. But at no time during this intervening period did his PTSD cause occupational and social impairment with deficiencies in most areas to, in turn, warrant assigning an even higher 70 percent rating. While the constellation of symptoms has included impaired memory and mood, he notably has remained able to live independently and care for his personal needs and maintain healthy social relationships, both with his family and others. He also was observed as adequately groomed, correctly oriented (to time, place, person and situation) and had appropriate thought processes and content. He additionally was able to fully and independently perform activities of daily living. In short, occupational and social impairment with deficiencies in most areas simply is not shown and, therefore, a schedular rating greater than 50 percent is not warranted during this intervening period.   Since August 17, 2015 the Veteran’s PTSD has been even worse, commensurate with his greater 70 percent rating, since he instead has had occupational and social impairment with deficiencies in most areas. But at no time during this succeeding period has his PTSD caused total occupational and social impairment to, in turn, warrant an even higher (and maximum permissible) 100 percent schedular rating. Despite his worsening symptoms, he still has been able to complete activities of daily living and maintain effective relationships with his immediate family. Moreover, he has had a total disability rating based on individual unemployability (TDIU) effectively since August 17, 2015, which is concession that he is unemployable at least partly, if not entirely, owing to his PTSD. A TDIU may be granted even when there is not “total” occupational impairment, per se. Use of the word "substantially" in the TDIU context suggests intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable like contemplated for a 100 percent schedular rating for PTSD (i.e., "total" occupational impairment). See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In short, then, total occupational and social impairment has not been shown and, therefore, a 100 percent schedular rating for the PTSD is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.