Citation Nr: 21026902 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-43 192 DATE: May 4, 2021 ORDER An initial 70-percent evaluation for post-traumatic stress disorder (PTSD) is granted. FINDING OF FACT For the entire appeal period, from August 24, 2012, forward, the Veteran's PTSD has manifested by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1999 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This issue was previously before the Board in August 2018 and February 2020. Pursuant to the February 2020 Board remand, VA sent the Veteran a letter in February 2020 asking him to complete and return VA Form 21-4142 Authorization to Disclose Information to the Department of Veterans Affairs (VA) and a general release form so private treatment records could be obtained on his behalf. As the Veteran did not respond, additional action on the part of VA is not required pursuant to its duty to assist. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Furthermore, pursuant to the February 2020 Board remand, VA afforded the Veteran an additional VA examination. Regarding the issue herein decided, the Board finds there was substantial compliance with the previous remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38C.F.R. §4.1. Separate diagnostic codes identify the various disabilities. 38U.S.C. §1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509(2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the appeal, the assignment of staged ratings is necessary. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). An initial 70-percent evaluation for PTSD is granted. The Veteran asserts an increase to 70 percent or higher should be granted effective the date of claim for his service-connected PTSD. See March 2021 Appellant's Post-Remand Brief. The June 2013 decision on appeal awarded the Veteran service connection for an anxiety disorder with an evaluation of 30 percent effective August 24, 2012, under DC 9413. The Veteran timely appealed that evaluation in his July 2013 Notice of Disagreement (NOD). A February 2016 rating decision subsequently granted service connection for PTSD (previously rated as an anxiety disorder) with an evaluation of 50 percent effective October 18, 2015, under DC 9411. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under Diagnostic Code 9411, a 30 percent disability rating is warranted for 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 disability rating 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. A 70 percent disability rating 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. A 100 percent disability 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 symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). As a result, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2016); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the "frequency, severity, and duration" of a veteran's symptoms "play an important role" in determining the disability level). The severity of the symptoms and the degree of occupational and social impairment they cause are independent factors. See Vazquez-Claudio, 713 F.3d at 116 (rejecting an interpretation of § 4.130 that would allow "a veteran whose symptoms correspond[ed] exactly to a 30 percent rating" to be granted a 70-percent rating solely because they affected most areas). In other words, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See id. at 118 (holding that, in determining whether a 70 percent rating is warranted, VA must make "an initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas"). Turning to the evidence of record, a March 2013 VA examiner found the Veteran's occupational and social impairment to be that of a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The report notes the Veteran reported that his severe anxiety makes it harder for him to perform at his job because he must go down into manholes and other sewage work. The Veteran reported being at the same job for five years. He also reported self-medicating his anxiety with alcohol. The Veteran was noted to be married since 2007 with two children. He reported living with his wife and children. He appeared evasive when asked about his relationship with his wife and children but eventually reported being distant from his wife. Nonetheless, he described his family life as "good." He reported having been involved in social support and hobbies such as coaching, surfing, working-out, and going to church; however, he also reported a decrease in interest in these activities over the years. His symptoms were found to include anxiety and chronic sleep impairment, and he was found to be able to manage his financial affairs. A June 2014 Mental Health Initial Evaluation Note states the Veteran presented with panic attacks that result in trouble breathing. He also experiences hyperactivity, feelings of apprehensiveness, feelings of losing control, disturbed sleep, and flashbacks. He reported that his symptoms affect his children, wife, job, and social life. On examination, the Veteran was found to be alert. Memory and concentration were noted to be impaired. Audio and visual hallucinations were not found. Delusions were not found. The Veteran denied suicidal or homicidal ideation or plan. He showed adequate impulse control. His judgment and insight were noted to be fair. An October 2014 Mental Health Note states that the Veteran presented with panic attacks, rage outbursts, and conflict with his wife. On examination, the Veteran was found to be well-groomed, attentive, and cooperative. He displayed appropriate behavior and normal speech. His mood was described as depressed, angry, and anxious. His affect was appropriate, modulated. His thought processes and thought content were within normal limits and goal directed. His perception was noted to be appropriate and judgement and insight were noted to be "good." He denied suicidal or homicidal ideation. The Veteran received another VA examination in February 2016. The Veteran's occupational and social impairment were found to consist of an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examination report notes the Veteran continues to reside with his second wife, and they have been married since 2007. He reported not engaging in many social events with his family due to his social isolation and anxiety with large crowds. He reported having a few military friends whom he stays in contact via telephone. The Veteran's symptoms were found to include a depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and a difficulty in establishing and maintaining effective work and social relationships. On examination, he was found to be fully alert and oriented. His mood was noted to be anxious, and his affect was congruent to content. He denied suicidal or homicidal ideation. The Veteran was found to be able to manage his financial affairs. An October 2016 Mental Health Note shows the Veteran reporting that he sometimes feels short with people and that he is sometimes afraid to sleep. On examination, he was alert and oriented. He denied active psychosis and hallucinations. He also denied suicidal or homicidal ideation plan or intent. A March 2017 No-Show Mental Health Note documents that the Veteran had not been discharged from an acute psychiatry unit in less than 30 days. No suicide attempts were found in the past year, and a lifetime history of homicide was not found. The Veteran's most recent VA examination was completed in November 2020. His occupational and social impairment were found to consist of deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported he fears going out because he may experience panic attacks and that certain smells trigger his PTSD symptoms. He reported working in a civil service job at a wastewater treatment plant. He also reported that he is worried how his panic attacks affect his wife and children. His symptoms were found to include a depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or events; disturbances of motivation and mood; a difficulty in establishing and maintaining effective work and social relationships; a difficulty in adapting to stressful circumstances, including work or a work-like setting; an inability to establish and maintaining effective relationships; and obsessional rituals that interfere with routine activities. The Veteran was found to be able to manage his financial affairs. On review of the evidence, the Board finds that the Veteran's PTSD symptoms more nearly approximate the criteria for a 70 percent rating for the entire initial rating period from August 24, 2012, forward. For the entire initial rating period, the Veteran's PTSD has been manifested by occupational and social impairment, with deficiencies in most areas such as family and social relations, judgment, thinking, or mood, due to such symptoms as, an impaired impulse control, intermittent suicidal ideation, a difficulty in adapting to stressful circumstances (including work or work like setting), and an inability to establish and maintain effective relationships. The record demonstrates the Veteran experiences anxiety, panic attacks, and trouble interacting socially and building relationships through socialization and thus, maintains an inability to establish and maintain effective relationships. Considering the foregoing, the Board finds a 70 percent disability rating is warranted for PTSD throughout the initial rating period. The Board concludes the Veteran's PTSD symptomatology has not approximated the criteria for a 100 percent rating under DC 9411 at any point throughout the initial rating period. The evidence does not show that the Veteran had 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; an 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 thoroughly reviewing the evidence, as summarized above, the Board finds that an increased rating is warranted because there is evidence suggesting the Veteran suffers occupational and social impairment, with deficiencies in most areas due to his PTSD, and thus, the Veteran's disability picture for his PTSD most closely approximates the 70 percent disability rating throughout the initial rating period. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.