Citation Nr: 21028580 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-45 733 DATE: May 11, 2021 ORDER Before August 2, 2018, entitlement to an initial rating for adjustment disorder with mixed anxiety and depressed mood, now rated as Posttraumatic Stress Disorder (PTSD), in excess of 30 percent, is denied. From August 2, 2018, entitlement to a higher rating for adjustment disorder with mixed anxiety and depressed mood, now rated as PTSD, in excess of 70 percent, is denied. FINDINGS OF FACT 1. Prior to August 2, 2018, the Veteran's adjustment disorder with mixed anxiety and depressed mood, PTSD, manifested by mild memory loss, anxiety, less than weekly, panic attacks, chronic sleep impairment and occupational and social impairment due to mild or transient symptoms. 2. From August 2, 2018, the Veteran's PTSD has manifested by depressed mood, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including in a worklike setting, neglect of personal appearance, and suicidal ideation, but was not a danger to self or others and did not manifest a total occupational impairment. CONCLUSIONS OF LAW 1. Prior to August 2, 2018, the criteria for entitlement to an increased rating in excess of 30 percent for an adjustment disorder with mixed anxiety and depressed mood, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9440, 9411. 2. From August 2, 2018, the criteria for entitlement to a higher rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9440, 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1989 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2019 Board decision, the matter was remanded for a new VA examination to assess the current severity of his adjustment disorder with mixed anxiety and depressed mood, now claimed as PTSD. In May 2019, the Veteran was provided a new VA examination. Therefore, development has been completed in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observes that in a May 2019 rating decision, the RO awarded an increased evaluation of 70 percent for PTSD, previously rated as an adjustment disorder with mixed anxiety and depressed mood, effective August 2, 2018. The Veteran is presumed to seek the maximum available benefit for a disability. And as this is not a full grant of benefits, the claim is still considered to be on appeal. See Ab v. Brown, 6 Vet. App. 35, 38 (1993). In October 2019, the Veteran indicated in a telephone contact that he wished to withdraw his PTSD increased rating appeal. However, the Veteran did not file a VA Form 21-4138 formally expressing the intent to withdraw the appeal. See October 2019 Report of Correspondence. In August 2020, the Veteran and his representative waived the right to present additional evidence. See August 2020 VA Form 646; August 4, 2020 Report of Contact. Subsequently, in April 2021, the Veteran's representative submitted an Appellate Brief in support of an increased rating for PTSD. See April 2021 Appellate Brief. Increased Ratings and Mental Disorders Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 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 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity of adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). When determining the appropriate disability rating to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to ward a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-24 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms. A veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio, 713 F.3d at 118. Staged Ratings The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this instance, the Board observes that staged ratings for his mental disorder has been assigned by the agency of original jurisdiction (AOJ) and the Board will address both stages to determine if any further staged ratings are warranted. 1. Higher rating in excess of 30 percent for chronic adjustment disorder with mixed anxiety and depressed mood, PTSD, prior to August 2, 2018 The Veteran had active duty from July 1989 to July 1993. In January 2015, the Veteran was granted service connection for an adjustment disorder with mixed anxiety and depressed mood is rated at 30 percent under 38 C.F.R. § 4.130, DC 9440. The Veteran contends that his symptoms are more severe than his initial evaluation of 30 percent. See December 2015 VA Form 9 (indicating that his 30 precent evaluation should be increased to 50 percent). Under DC 9440, a 50 percent is warranted where the psychiatric condition produces 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 understanding complex commands; impaired 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 establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9440. A 70 percent rating is warranted where the psychiatric condition produces 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. Id. A 100 percent rating is warranted where the psychiatric condition results in 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. Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity, and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Id. Analysis When considering all of the evidence of record, the Board finds entitlement to a rating higher than 30 percent for his adjustment disorder with mixed anxiety and depressed mood is not warranted prior to August 2, 2018. In January 2016, the Veteran was provided a VA examination for mental disorders. See January 2016 Mental Disorders Disability Benefits Questionnaire (DBQ). The examiner noted that the Veteran had an occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform tasks only during periods of significant stress. See id. at pg. 1. The examiner reviewed the Veteran's treatment records and noted that the Veteran was diagnosed with depression in February 2015. See February 12, 2015, Dr. W, Psychologist Treatment note. The Veteran's physician indicated in October 2015 that his symptoms did not meet the diagnostic criteria for PTSD. During a May 2016 VA examination, the Veteran denied suicide attempts, psychotic symptoms of any kind, psychiatric hospitalizations, symptoms of feeling down, feeling sad or depressed and anhedonia. See May 2016 VA Mental Disorders examination, pg.3. He denied having trouble with directions, and the examiner noted that his concentration and memory were adequate to good. See id. The Veteran did not indicate he was suffering from panic attacks. Id. The examiner noted that his speech was of normal volume, rate, quantity and quality. See id. at pg. 4. The Veteran reported that he had been employed as a truck dispatcher for the same employer for six years, and that he sometimes drives a truck when others are out sick. See id. at pg. 2. The Veteran also added that he is functioning alright at work. See id. The Veteran did not manifest symptoms which more nearly approximated a 50 percent rating. Therefore, the Board finds that in the period before August 2, 2018, the Veteran's symptoms did not manifest to a degree to warrant a rating in excess of 30 percent. The claim for a higher rating in excess of 30 percent prior to August 2, 2018 is not warranted. 2. Higher rating in excess of 30 percent for chronic adjustment disorder with mixed anxiety and depressed mood, PTSD, after August 2, 2018 In May 2016, the Veteran's representative submitted correspondence indicating that the Veteran's mental disability had worsened to include daily panic attacks and anxiety, recurrent nightmares four to five times a week, severe depression and decreased concentration affecting his occupational and daily functioning that were not contemplated by prior VA examiners. See May 2016 Correspondence. As a result of the claim of worsening symptoms, a March 2019 Board decision remanded the matter for a new VA examination regarding the current severity of the Veteran's adjustment disorder with mixed anxiety and depressed mood. See March 2019 Board remand, pg. 7. In May 2019, the Veteran was provided a VA PTSD Examination. The examiner noted that the Veteran had an occupational and social impairment with reduced reliability and productivity. See May 2019 VA Examination DBQ, pgs., 1-2. The examiner noted that the Veteran report that he gets along with his supervisor at work "pretty good", but also noted that he is not around them that much. The examiner also noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, a chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relations, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation and a neglect of personal appearance and hygiene. See id. at pg. 7. The examiner noted that his symptoms were more severe than previous examinations. See id. at pg. 9. In a May 2019 rating decision, the RO assigned a 70 percent rating for PTSD, which was previously rated as adjustment disorder with mixed anxiety and depressed mood. See May 23, 2019 Rating Decision. A second May 2019 rating decision changed the effective date from March 25, 2019 to August 2, 2018. See May 30, 2019 Rating Decision. In October 2019 the RO requested that for a new VA examination; in October 2019, the Veteran cancelled the scheduled VA examination because he was unavailable. In October 2019, the Veteran indicated that he wished to withdraw his PTSD Increased Rating claim as it was currently rated at 70 precent. However, a written request to withdraw the claim was not subsequently filed. The Board notes that the record is sufficient to rate the Veteran. In April 2021, the Veteran's representative argued that the Veteran should receive a 100 percent evaluation, rather than a 70 precent evaluation, for his chronic adjustment disorder with mixed anxiety and depressed mood, now rated as PTSD. See April 2021 Appellate Brief. More specifically, In April 2021, the Veteran's representative argued that the presence of impaired judgement and thinking, and the Veteran's own report of dissociative reactions and intrusive thoughts "fits squarely into the criteria for a 100 percent rating." See April 2021 Appellate Brief., pg. 2. PTSD is rated under DC 9411. Under the General Rating Formula, a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Id. A 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation or name. Id. Upon review of the evidence, the Board finds that the assigned 70 percent rating is appropriate because the Veteran did not manifest 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 and place; memory loss for names of close relatives, own occupation or name. Even though the Veteran admitted to having suicidal thoughts, he was not considered to pose a threat to herself or others. His psychiatric symptoms did not result in total occupational and social impairment. Thus, the nature and severity of his psychiatric symptoms do not rise to the level to warrant a 100 percent rating. In making the rating determinations above, the Board has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of increased ratings for the disabilities addressed. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.