Citation Nr: 21030171 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-12 697 DATE: May 18, 2021 ORDER Entitlement to an increased rating of 50 percent disabling for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT During the appeal period, the Veteran's PTSD more closely approximates a disability level productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 50 percent rating, but not higher, for PTSD for the appeal period have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1966 to December 1967 and in the U.S. Navy from September 1968 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2019 decision, the Board denied the Veteran's claim for an increased rating. Subsequently, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans' Claims (Court), which pursuant to a December 2020 Joint Motion for Partial Remand (JMPR), vacated the Board's decision to the extent the Veteran's claims were denied, and remanded the matter for further consideration. Specifically, the Court emphasized that the Board's reasons and bases analysis was inadequate. This matter now returns to the Board for further appellate review. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. Entitlement to an increased rating of 50 percent disabling for PTSD is granted. The Veteran generally contends that his PTSD symptoms are more severe than contemplated by the rating assigned. Specifically, the Veteran argues, through his representative that there are some evidences of the record that were not considered in the prior October 2019 Board decision that could be favorable to the Veteran's claims. Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a noncompensable rating is warranted if a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent 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). Id. A 50 percent rating is warranted if the disability is productive of 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 rating is warranted if the disability is productive of 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. A schedular maximum 100 percent rating is warranted if the disability ir productive 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; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms 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 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013), 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." Here, the Board continues to conclude that the Veteran's functional impairments due to his PTSD does not warrant a rating in excess of 30 percent for the appeal period. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating, as occupational and social impairment with reduced reliability and productivity have not been shown. During the December 2013 VA examination for his PTSD, the Veteran stated that he had a good relationship with his sibling and had been married for 35 years, and one of his adult daughters lives with him. He stated that after being discharged from the military, he worked at various jobs, and later on worked at the tracks at Burlington Railroad. He did not start receiving psychiatric care until four years prior, when he identified his son-in-law who died in the ER. The Veteran reported having frequent nightmares and recollections of the dead and wounded soldiers he encountered in Vietnam. He also reported having irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, problems with concentration, sleep disturbance and depression. The examiner observed that the Veteran was alert, oriented, but anxious, irritable, rather loud, and angry. After the assessment, the examiner opined that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. During a December 2014 PTSD evaluation, the Veteran stated that he had an upsetting confrontation with his grandson's father when his grandson came home with a black eye. He was very angry about this, though per his grandson's father, the boy fell while playing. The grandson's father is no longer able to care for grandson now. The Veteran also mentioned that he had an argument with his wife's sister. He reported he still having issues with irritability and isolative behavior. His energy is normal, his concentration is good. He did not have suicidal ideations and his grandson is strong protective factor. During another February 2015 PTSD evaluation, the Veteran reported that there is "nothing new going on." He stated that he has continued anger and homicidal ideations without plan or intent toward son-in-law and he continues to be irritable in general. He sleeps 3-5 hours at night, with occasional naps and denies feeling tired during the day. The Veteran reported ruminating about his Vietnam experiences. His grandson continues to be the main positive factor in his life. The examiner observed that the Veteran presented casually dressed with adequate hygiene/grooming. His speech was fluent with normal rate and volume. His mood appeared "the same" with full affect congruent to the content. The examiner also observed that the Veteran's thought process was linear, and goal directed. He denied suicidal ideation, his insight was fair and judgment intact. During the March 2016 VA examination for his PTSD, the Veteran stated that he was married for 39 years. He stated that he enjoyed seeing his two grandsons and described them as "the joy of his life." He stated that he worked for the Ford Auto plant assembly in Chicago for one year and then later on he worked as a truck driver in the Chicagoland area in delivery for 20 years. He stopped working in 2007. The Veteran reported that his hobbies included playing drums, using the internet and watching TV shows. He stays home most of the time and does not socialize. He mentioned that he drinks alcohol but does not have a drinking problem and no DUI charges were reported. The Veteran reported symptoms of depressed mood, anxiety, and chronic sleep impairment. The examiner observed that the Veteran was on time for his appointment, was dressed casually and his gait and speech were normal. Also, the Veteran was verbal, alert and well oriented to time, place, person, and situation. His thinking was sequential, organized and goal oriented and the Veteran did not report any suicidal or homicidal ideations or plans or tendencies. He did not report having any delusions or hallucinations and his judgment was intact and his insight was average. The examiner concluded that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In August 2017, January 2018 and March 2019 during routine PTSD evaluations the Veteran did not report homicidal or suicidal ideations. He consistently reported symptoms of insomnia, nightmares, irritability, hypervigilance and triggered anxiety. He denied psychotic or manic symptoms. The Board finds that a 50 percent rating, but not higher is warranted. In both the December 2013 and March 2016 VA examinations, after evaluating the Veteran's symptoms, the examiners concluded that a mental condition had been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. While the Veteran's consistent symptoms of depressed mood, anxiety, chronic sleep impairment, hypervigilance and irritability are already compensated under a 30 percent rating, his severity level, frequency, and duration of his anger, irritability, and some instances of homicidal ideation are more nearly contemplated by a 50 percent rating as the Board finds they functionally establish his difficulty in establishing and maintaining effective relationships. However, a higher 70 percent rating is not warranted as he does not exhibit 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);an inability to establish and maintain effective relationships; or other equivalent manifestations. The Veteran also does not exhibit symptoms consistent with a 100 percent rating. The Veteran's thought processes were found be logical and coherent as discussed above. The Veteran did not report an inability to perform daily tasks. Moreover, the Veteran has consistently been found to have appropriate hygiene and appearance and he has not alleged being unable to maintain minimal personal hygiene. Total social impairment was not demonstrated as the Veteran reported maintaining a relationship with his wife, children, and grandchildren although he feels irritability around people. See December 2013 and March 2016 VA examination. Total occupational impairment was not demonstrated as the Veteran reported working for over 30 years without reports of misconduct. See March 2016 VA examination. The Board has addressed stage ratings under Hart v. Mansfield, supra and confirms that the Veteran's symptomatology is consistent with a 50 percent rating throughout the appeal period. Finally, Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not demonstrated an inability to obtain and maintain substantially gainful employment due to his PTSD symptoms. In fact, the Veteran reported working until 2007. Thus, a TDIU under Rice has not been raised. (Continued on the next page) Therefore, the Board concludes that the evidence supports a 50 percent rating, but not higher. The Veteran has been affording reasonable doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeyemi, B. 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.