Citation Nr: 21026202 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-17 768 DATE: April 30, 2021 ORDER The claim for an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to January 12, 2018, is denied. The claim for an initial rating in excess of 70 percent for PTSD for the period from June 25, 2020, forward, is denied. FINDINGS OF FACT 1. For the period prior to January 12, 2018, the Veteran’s PTSD did not more closely approximate total occupational and social impairment. 2. For the period from June 25, 2020, forward, the Veteran’s PTSD did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD prior to January 12, 2018, is denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2020). 2. The criteria for an initial rating in excess of 70 percent for PTSD from June 25, 2020, forward, is denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, DC 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1981 to March 1988. These matters ensued following an April 2013 rating decision which granted service connection for PTSD and assigned a 50 percent disability rating, effective April 3, 2013. In April 2018, the Veteran testified under oath before the undersigned Veterans Law Judge at a travel board hearing in St. Louis, Missouri. A transcript of the hearing is of record. In a September 2018 Board decision, the 50 percent disability rating in effect for PTSD was increased to 70 percent and a rating in excess of 70 percent was remanded for additional development. In an October 2018 rating decision, the Regional Office (RO) promulgated the increased rating of 70 percent for PTSD, effective from April 3, 2013. Additional VA examination was conducted in June 2020, and in a February 2021 rating decision, the RO increased the 70 percent disability rating in effect for PTSD to 100 percent, effective January 12, 2018. Then, a 70 percent evaluation was assigned from June 25, 2020, forward. In general, it is presumed that a veteran is seeking the maximum benefit allowed by law and regulation when claiming an increased rating and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). Accordingly, the appeal period from January 12, 2018, to June 25, 2020, is not before the Board at this time as the RO awarded the maximum benefit (100 percent). However, the appeal period prior to January 12, 2018, and after June 25, 2020, remains before the Board as the RO assigned a rating less than total. Increased Ratings The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, 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 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his PTSD. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matters on appeal. For the entire initial rating period from April 3, 2013, to January 12, 2018, the Veteran is in receipt of an initial 70 percent rating for the service-connected PTSD under DC 9411. 38 U.S.C. § 4.130. The Veteran asserts that the current PTSD symptoms are not adequately contemplated by the currently assigned 70 percent rating. See, for example, Informal Hearing Presentations dated in September 2020 and March 2021. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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); and inability to establish and maintain effective relationships. A 100 percent rating requires evidence of 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; and memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated 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.” Entitlement to a rating in excess of 70 percent for PTSD prior to January 1, 2018. The record reflects that the Veteran was in a helicopter accident during service. Lack of situational awareness caused a crash into water resulting in serious injuries. The Veteran’s claim for service connection for PTSD was filed in April 2013. When examined by VA in November 2013, PTSD was the psychiatric diagnosis. Occupational and social impairment with reduced reliability and productivity was noted. Current manifestations of PTSD included recurrent and distressing recollections of the event, persistent avoidance of stimuli with the trauma, markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, and hypervigilance. At the time of additional VA examination in July 2015, there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran was employed at the National Geospatial-Intelligence Agency (NGA) as an aeronautical analyst in the graphics department. He expressed some difficulties at work, to include that he did not get along with his former supervisor. In his current position, his supervisor was “alright,” and he got along with the other three members in his cube. At the time of this examination, the Veteran had been married for 33 years. He had a “strained” relationship with his wife but cited her as his closest social support. He had an “OK” relationship with his children. At the time of the examination, the Veteran was not happy. Working in his yard was the only activity that gave him a sense of satisfaction. He sometimes felt hopeless and “worked himself into panic-like symptoms” on occasion. He experienced sleep disturbance, experienced irritability, and was intolerant of all of the “idiots” in the world. He was depressed, anxious, and experienced disturbances of motivation and mood and had difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran’s symptoms appeared to be consistent with his prior examination, except there had been an increase in his drinking. After a review of all the evidence, lay and medical, the Board finds that, for the period from April 3, 2013, to January 12, 2018, the lay and medical evidence shows that the service-connected PTSD was not manifested in total social and occupational impairment; thus, a higher initial disability rating in excess of 70 percent is not warranted. Specifically, the evidence of record does not show that, for the initial rating period on appeal from April 3, 2013, to January 12, 2018, the Veteran experienced total social and occupational impairment. Rather, the evidence shows that he was able to engage in social activities as evidenced by the fact that he continues to be employed at the NGA. For these reasons, the Board finds that for the entire period on appeal, the lay and medical evidence does not show total social and occupational impairment to warrant a higher initial disability rating in excess of 70 percent for PTSD for the initial rating period prior to January 12, 2018. 38 C.F.R. §§ 4.3, 4.7 (2020). Entitlement to a rating in excess of 70 percent for PTSD from June 25, 2020, forward. As previously noted, the Board determined in a September 2018 decision, that a rating in excess of 50 percent was warranted. Thus, a 70 percent rating was assigned, for the entire period on appeal – from April 2013. This grant was based, in part, on the Veteran’s 2018 testimony that he had suicidal ideations or thoughts. Specifically, the Veteran testified on April 6, 2018, that he continued to be employed at NGA. He contended that his psychiatric symptoms had increased in severity. Symptoms included suicidal ideation and/or thoughts almost all the time. In the September 2018 decision, the found that additional development was needed in order to determine if the Veteran met the criteria for a 100 percent evaluation. It was noted that at the April 2018 hearing, the Veteran indicated that his symptoms may have gotten worse since his last VA examination. He submitted a private examination from April 2018, suggesting that his symptoms were worse; however, the Board found this examination inadequate for rating purposes. Accordingly, the Board remanded for a new examination. When examined by VA on June 25, 2020, the psychiatric diagnosis was PTSD. No other mental disorder was diagnosed. The examiner noted occupational and social impairment with reduced reliability and productivity. The Veteran was married and had two grown children, but he rarely saw them. He continued to work at the NGA where had been for the past 17 years. He job was “alright,” but everyone he worked with was a “pain in the ass.” Hi psychiatric symptoms continued (as listed on previous examinations). The Veteran was dressed casually and appeared his chronological age. He said that his mood was “not very good” because he had to go back to work. His affect was pleasant, and his level of engagement was optimal. His level of attention was adequate. His speech was coherent with normal rate and tone with thoughts being linear. He denied any current suicidal ideations. As previously stated, in a subsequently dated rating action, the 70 percent disability rating in effect for PTSD was increased to 100 percent, effective January 12, 2018, and returned to 70 percent from June 25, 2020. Hence, the Board previous discussion of whether a rating in excess of 70 percent was warranted for the period prior to June 25, 2020. Now, the Board is looking to determine whether a 100 percent rating is warranted for the period from June 25, 2020, forward. After a review of all the evidence, lay and medical, the Board finds that, for the period from June 25, 2020, forward, the lay and medical evidence shows that the service-connected PTSD has not manifested in total social and occupational impairment; thus, a higher initial disability rating in excess of 70 percent is not warranted. Specifically, the evidence of record does not show that, for the period on appeal from June 25, 2020 to the present, the Veteran experienced total social and occupational impairment. Rather, the evidence shows that he continues to have a serviceable relationship with his family, though sometimes strained, and that he continues to be employed at the NGA. Clearly, he is not totally impaired, socially or occupationally. For these reasons, the Board finds that for the entire period on appeal, the lay and medical evidence does not show total social and occupational impairment to warrant a higher initial disability rating in excess of 70 percent for PTSD for the rating period from June 25, 2020, forward. 38 C.F.R. §§ 4.3, 4.7 (2020). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.