Citation Nr: 21029637 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-43 676 DATE: May 14, 2021 ORDER Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to October 27, 2020, and in excess of 70 percent thereafter is denied. FINDINGS OF FACT 1. Prior to October 27, 2020, the objective medical evidence does not show that the severity, frequency and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. 2. Since October 27, 2020, the objective medical evidence does not show that the severity, frequency and duration of the Veteran's PTSD more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for PTSD prior to October 27, 2020, and in excess of 70 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 2003 to July 2009. The Board of Veterans' Appeals (Board) remanded this matter in July 2020 for further evidentiary development. The case has returned to the Board for appellate review. The Board notes that the July 2020 remand included the issue of entitlement to a rating in excess of 30 percent for sinusitis. A November 2020 rating decision issued by the Agency of Original Jurisdiction (AOJ) granted an increase to 50 percent for sinusitis. This is the highest rating available under the applicable diagnostic code. Thus, that issue is fully granted and no longer on appeal. Entitlement to a rating in excess of 30 percent for PTSD prior to October 27, 2020, and in excess of 70 percent thereafter Disability evaluations are determined by the application of the 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the appeal stems from a request for higher rating following the award of service connection, evaluation of the medical evidence pertinent to the original claim, and consideration of the appropriateness of staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). PTSD is evaluated under the General Rating Formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted for occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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). 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. Id. 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. Id. 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. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. The Veteran is seeking entitlement to a rating in excess of 30 percent for PTSD prior to October 27, 2020, and in excess of 70 percent thereafter. The Veteran was afforded a VA examination in April 2014. The April 2014 VA examiner reviewed the Veteran's VA treatment records but indicated that she did not review the entire claims file. The examiner confirmed the Veteran's PTSD diagnosis with no other psychiatric disorder diagnosed. The examiner summarized the Veteran's PTSD symptoms as occupational and social impairment due to mild or transient symptoms. At the April 2014 VA examination, the Veteran reported working full time. A September 2014 AOJ rating decision granted service connection for PTSD and assigned a 10 percent rating effective May 6, 2013. The Veteran disagreed with the 10 percent rating. The rating was subsequently increased to 30 percent in an August 2016 rating decision, effective May 6, 2013. A February 2015 VA initial mental health evaluation shows that the Veteran reported his PTSD symptoms as sleep disturbances, diminished energy, and decreased concentration. The mental status examination for this visit showed the Veteran's appearance was appropriate, he had a normal level of alertness, and was oriented to person, place and time. His mood and affect were appropriate and thought processes were consistent, good logic, ability to abstract, and good judgment. The February 2015 evaluation did not contain any findings indicating the Veteran's PTSD warranted a disability rating higher than 30 percent at that time. A September 2015 psychiatry outpatient note reveals that the Veteran is being followed for PTSD with depressive features. The Veteran reported that things were stable, he was eating and sleeping well but tired after work. The Veteran denied any symptoms of mania, psychosis, or major depression. He denied any desire to harm himself or others. A February 2016 VA psychiatry outpatient note reveals that the Veteran reported work difficulties and he was in search for a new job. He reported difficulties with side effects from his medications. A May 2016 VA psychiatry outpatient note shows that the Veteran reported continued nightmares without much change with his medication but with no side effects. There was no evidence of a major mood or formal thought disorder on examination and the Veteran denied any desire to harm himself or others. A November 2016 VA psychiatry outpatient note reveals that the Veteran is being followed for chronic PTSD and he was still working full time. The Veteran reported having a few panic attacks since his previous visit and he continued having episodic nightmares but was handling them. A February 2017 VA psychiatry outpatient note shows that the Veteran continued to work full time. He reported doing alright but was having difficulty with his sleep apnea. The Veteran was otherwise fairly stable and there was no evidence of a major mood or formal thought disorder on examination. He denied any homicidal or suicidal ideation or intention. The Veteran was alert and oriented in all spheres and able to establish rapport, mood was euthymic, affect was reactive, speech was fluent and normal in tone, rate, and volume, and thought processes were logical and goal directed. The Veteran denied perceptual disturbances, there was no expressed delusional content, cognition was grossly intact, insight was good, judgment and impulse control were adequate. A September 2017 VA psychiatry outpatient note reveals that the Veteran was still having difficulties with work, but he was looking for work elsewhere. There was no evidence of a major mood or formal thought disorder on examination and no evidence of dangerousness to self or others. A private psychiatrist submitted a June 2019 disability benefits questionnaire (DBQ). The psychiatrist assessed the Veteran and indicated review of the Veteran's service treatment records, the April 2014 VA examination, and the September 2014 rating decision. There is no indication that all of the Veteran's VA treatment records or the claims file were reviewed in conjunction with this assessment. The psychiatrist confirmed the Veteran's diagnoses of PTSD and major depressive disorder, recurrent, moderate. The Veteran reported work stress, he had held the same job for 8 years. His symptoms were summarized as occupational and social impairment with reduced reliability and productivity. The Board notes that this is indicative of a 50 percent disability rating; however, the Veteran's VA treatment records both before and after this evaluation indicate otherwise. At the June 2019 private evaluation, the Veteran reported reduced activity, social withdrawal, irritability, fatigue, memory and cognitive impairment, poor self-esteem, less interest in sex, relationship problems, helplessness, hopelessness, and guilt. The psychiatrist opined that the Veteran meets the criteria for an additional mental health diagnosis of major depressive disorder, recurrent, moderate and indicates that the Veteran is entitled to a higher rating due to this additional diagnosis. The psychiatrist provided that it is not possible to ascertain the level or impairment associated with each specific mental health disorder due to the co-occurrence of symptoms. The psychiatrist further provided that the evidence of the Veteran's occupational and social impairment with reduced reliability and productivity due to an exacerbation of symptoms including a depressed mood, irritability, chronic sleep impairment, anger, persecutory ideas, flattened affective range, intrusive thoughts related to trauma, hypervigilance, avoidance, detachment, disturbances of motivation and mood, difficulty adapting to work setting with recent verbal warning due to his aggressive attitude, and intrusive suicidal ideation with a plan but denied intent. An independent evaluation dated October 2019 from another private psychiatrist indicates review of the June 2019 DBQ and the August 2016 statement of the case. The evaluation was conducted via telehealth. The private psychiatrist opined that the Veteran's PTSD symptoms more closely approximates occupational and social impairment with reduced reliability and productivity, at a 50 percent disability rating. The private psychiatrist simply summarizes and endorses the June 2019 private opinion. No additional rationale is provided. A November 2019 VA psychiatry outpatient note for a routine management encounter reveals appropriate attire, the Veteran was alert, well-groomed, had good eye contact, euthymic mood, affect range was full and with an intensity congruent to situation. Speech was fluent, normal volume and prosody. Thought stream, thought content, and thought form was unremarkable. The Veteran denied perceptual disturbances, cognition was grossly intact but not formally tested. Insight was good and judgment/problem solving in a general sense was intact. Suicidal and homicidal ideations were denied. As previously mentioned, the Board remanded this matter in July 2020 to afford the Veteran a new VA examination. Pursuant to the Board remand, a VA opinion was obtained in October 2020. The psychiatrist reviewed the relevant records and provided that the Veteran's PTSD is best summarized as occupational and social impairment due to mild or transient symptoms. The psychiatrist provided the rationale that the June 2020 private DBQ is noted but not supported by records as there were discrepancies noted between the report and the document records. The psychiatrist further provided that the major depression diagnosis was not supported by the clinical records. The Veteran's PTSD has been well controlled over the past several years and is considered mild. The Veteran was afforded a new VA examination in October 2020, which was the basis for the increase to 70 percent, effective October 27, 2020 in the November 2020 AOJ rating decision. That exam noted that the Veteran continued to be employed. He reported some heightened anxiety when out among people. He could fall asleep but had some nightmares. He reported passive thoughts of suicide when he had periods of depression, but hand no real intent or plan. He reported some problems with irritability and concentration. He denied any legal or serious behavioral problems. Based on these and similar findings, the 70 percent rating was assigned. There is, however, no suggestion, nor were there any findings that total social and industrial impairment was shown. The Board also reviewed and carefully considered the Veteran's lay statements and testimony asserting that the severity of his service-connected PTSD warrants a higher disability rating. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to his PTSD symptoms as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For these reasons and based on the objective medical evidence, the Board finds that prior to October 27, 2020, the objective medical evidence does not show that the severity, frequency and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. The Board further finds that the objective medical evidence does not show that the severity, frequency and duration of the Veteran's PTSD symptoms more closely approximate total occupational and social impairment. In denying the claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.