Citation Nr: 21029167 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-38 702 DATE: May 12, 2021 ORDER A rating of 50 percent, but no higher, for the entire period on appeal for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD symptoms have been characterized by flashbacks, depression, anxiety, irritability, angry outbursts, chronic sleep impairment, suspiciousness, social isolation, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships CONCLUSION OF LAW The criteria for a rating of 50 percent, but no higher, throughout the entire period on appeal for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1990 to August 1990 and from June 1993 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision. The Veteran testified before the Board at a hearing in November 2017. A transcript of the hearing has been associated with the claims file. In June 2018, the Board remanded the Veteran's claim to afford him a new VA examination as to the severity of his PTSD. The claim has since been returned to the Board for review. For the reasons indicated in the discussion below, the VA psychiatric examination conducted pursuant to the Board's remand instructions was adequate and the agency of original jurisdiction (AOJ) therefore complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 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. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD Ratings for PTSD are assigned under 38 C.F.R. § 4.130, DC 9411. The Veteran is currently assigned a 10 percent rating for the period prior to July 10, 2018, and a 50 percent rating for the period thereafter. Under DC 9411, for the 10 percent rating criteria, the evidence must show 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. 38 C.F.R. § 4.130, DC 9411. For the 30 percent rating criteria, the evidence must show 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). Id. For the 50 percent rating criteria, the evidence must show 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. Id. For the 70 percent rating criteria, the evidence must show 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. Id. The Board has reviewed the evidence of record and finds that a rating of 50 percent, but no higher, throughout the entire period on appeal is warranted for the Veteran's PTSD. First, the Veteran provided testimony at the hearing before the Board in November 2017 regarding his claim of an increased rating for PTSD. The Veteran stated that his psychiatric symptoms are more severe than the symptoms contemplated by the 10 percent rating criteria and that his psychiatric symptoms have remained consistent throughout the entire period on appeal. The Veteran stated that the duties associated with his occupation trigger frequent flashbacks. Further, he stated that his psychiatric symptoms include frequent irritability, angry outbursts, memory difficulties, daily crying spells, social isolation, verbal altercations in the workplace, and difficulty maintaining his relationships with his wife and children. Additionally, he stated that he had experienced suicidal or homicidal ideations only once. Lastly, he stated that he experienced difficulties in expressing the severity of his psychiatric symptoms during previous VA examinations. In August 2012, January 2014, and August 2014, the Veteran underwent in-person VA examinations regarding his PTSD. These examinations were conducted by the same VA examiner. The Veteran reported psychiatric symptoms including intrusive memories, flashbacks, angry outbursts, depression, one instance of suicidal ideation, sleep disturbances, and social avoidance. Throughout the examinations, the VA examiner found that the Veteran's symptoms consistent with the diagnostic criteria for PTSD included dreams, thoughts, and memories that are distressing, recurrent, involuntary, and intrusive; physiological reactivity on exposure to internal or external cues associated with the trauma; efforts to avoid thoughts, feelings, conversations, places, people, or activities associated with the trauma; feelings of detachment; markedly diminished interest or participation in significant activities; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; and, sleep disturbances. The examiner indicated that the Veteran's reported symptoms do not rise to the level of chronicity required under the rating criteria. The examiner determined the Veteran's level of impairment to be occupational and social impairment due to mild or transient symptoms, which is consistent with the 10 percent rating criteria. Additionally, the same VA examiner conducted an examination in August 2015 in which the Veteran refused to discuss the current severity of his psychiatric symptoms, and the examiner determined that the Veteran's symptoms remained consistent with the 10 percent rating criteria. In March 2019, the Veteran underwent an in-person VA examination regarding PTSD. The examiner observed that the Veteran's concentration, judgment, and attention were good; however, during the examination he was irritable, depressed, and experienced crying spells. The VA examiner determined that the Veteran's symptoms consistent with the diagnostic criteria for PTSD include dreams, thoughts, and memories that are distressing, recurrent, involuntary, and intrusive; intense, prolonged, and marked physiological reactions to internal or external cues associated with the trauma; efforts to avoid thoughts, feelings, conversations, places, people, or activities associated with the trauma; persistent and exaggerated negative beliefs; persistent, distorted cognitions about the cause or consequences of the traumatic events; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; and, sleep disturbances. The examiner documented that the Veteran's additional psychiatric symptoms include anxiety, suspiciousness, and chronic sleep impairment. The examiner determined the Veteran's level of impairment to be occupational and social impairment with occasional decrease in work efficiency, which is consistent with the 30 percent rating criteria. Subsequently, in an April 2020 supplemental statement of the case (SSOC), the Veteran was assigned a 50 percent rating, effective July 10, 2018. In the April 2020 SSOC, the AOJ specifically indicated that the Veteran's VA treatment records since July 10, 2018 demonstrate symptoms consistent with the 50 percent rating criteria. Next, regarding the Veteran's VA treatment records prior to July 10, 2018, in January 2012 the Veteran reported significant psychiatric symptoms. Specifically, he reported depression, nightmares, guilt, and intrusive thoughts due to traumatic events experienced during service. He also reported irritability, angry outbursts, and flashbacks, and he reported a two-week period of persistent depression during which he contemplated suicide with specific planning. In February 2012 VA treatment records, he reported continued depressed mood with frequent tearfulness. He was diagnosed as having PTSD and depressive disorder, and he was prescribed individual therapy, group therapy, and psychiatric medication. VA treatment records throughout October 2012, April 2014, May 2014, and July 2016, indicate treatment for continuing psychiatric symptoms. Further, in April 2014 VA treatment records, he stated that his prescribed psychiatric medications caused cognitive difficulties, including memory impairment. Regarding the Veteran's VA treatment records since the July 10, 2018 effective date of his assigned 50 percent rating, the records indicate consistent and continuing psychiatric symptoms. Specifically, in July 2018 VA treatment records, he reported flashbacks, nightmares, memory difficulties, social avoidance, irritability, angry outbursts, and exaggerated startle response. Further, the July 2018 VA treatment records indicate that after a period of taking time away from therapy, he resumed individual and group therapy. The Board concludes that despite the finding by the AOJ in the April 2020 SSOC that Veteran's psychiatric symptoms worsened in July 2018, the probative evidence of record demonstrates that his psychiatric symptoms have remained consistent with the 50 percent rating criteria throughout the period on appeal. First, at the November 2017 hearing before the Board the Veteran provided testimony asserting that his psychiatric symptoms have remained the same throughout the period on appeal and that these symptoms specifically included frequent flashbacks, depression, irritability, angry outbursts, social isolation, one instance of suicidal ideation, memory difficulties, and difficulty in establishing and maintaining effective work and social relationships. The Board finds that the reported severity, frequency, and duration of these symptoms are properly contemplated by the 50 percent rating criteria. Second, although the VA examiner who conducted the August 2012, January 2014, August 2014, and August 2015 examinations specifically determined that the Veteran's psychiatric symptoms were properly contemplated by the 10 percent rating criteria, the examiner indicated that the Veteran experienced many of the same symptoms as reported during November 2017 hearing before the Board; however, the examiner concluded that the chronicity of the Veteran's symptoms did not warrant a rating in excess of 10 percent. The Board notes that during the November 2017 hearing before the Board, the Veteran expressed difficulty communicating the severity of his symptoms during previous VA examinations. Third, during the March 2019 VA examination, the Veteran again reported many of the same symptoms as reported during the hearing before the Board. The evidence indicates that during the examination he was able to communicate the severity of symptoms more adequately as the examiner remarked that when discussing his psychiatric symptoms, the Veteran was not guarded but rather openly depressed with crying spells. The examiner determined that the reported symptoms warranted a rating consistent with the 30 percent rating criteria. Finally, the Veteran's VA treatment records throughout the period on appeal provide a detailed and forthcoming account of his full disability picture as it relates to his psychiatric symptoms. During the course of treatment, the Veteran was able to fully communicate the severity, frequency, and duration of his psychiatric symptoms, most significantly his frequent and severe depression, irritability, angry outbursts, and flashbacks. The Board finds that as the Veteran asserted during the hearing before the Board, the VA treatment records indicate that his psychiatric symptoms have remained consistent throughout the entire period on appeal. Therefore, the Board finds that probative evidence of record demonstrates that the Veteran's psychiatric symptoms are properly contemplated by the 50 percent rating criteria throughout the period on appeal. (Continued on the next page) Lastly, the Board finds that the preponderance of evidence reflects that the Veteran's psychiatric symptoms are moderate to severe in nature and cause significant occupational and social impairment; however, they are not manifested by occupational and social impairment with deficiencies in most areas, as contemplated by the 70 percent rating criteria. Specifically, although the Veteran reported one instance of suicidal ideation with specific planning in January 2012, the evidence does not indicate that he has since experienced any suicidal ideations. Additionally, although the Veteran experiences irritability, angry outbursts, and depression with crying spells, the evidence does not indicate that he experiences impaired impulse control with unprovoked irritability and periods of violence or that he experiences a near-continuous depression affecting his ability to function independently. Thus, although the Veteran may experience some symptoms contemplated by or analogous to the 70 percent rating criteria, the evidence of record demonstrates that these symptoms do not rise to the severity, frequency, and duration required to warrant a 70 percent rating. Further, the evidence does not indicate that the Veteran experiences obsessional rituals, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and speech intermittently illogical, obscure, or irrelevant. As the preponderance of the evidence reflects that the Veteran does not experience occupational and social impairment with deficiencies in most areas, a 70 percent rating for PTSD is not warranted. Resolving any remaining reasonable doubt in the Veteran's favor, the Board finds that the requirements for establishing a 50 percent rating, but no higher, throughout the entire period on appeal for the Veteran's PTSD have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, a 50 percent rating is granted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.