Citation Nr: 21030179 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-31 236 DATE: May 18, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) for the period from October 14, 2014 to November 30, 2015 is granted. Entitlement to a disability rating in excess of 70 percent for PTSD for the period from December 1, 2015 onward is denied. FINDINGS OF FACT 1. For the period from October 14, 2014 to November 30, 2015 the evidence is at least in equipoise as to whether the Veteran's PTSD symptoms most closely approximated occupational and social impairment, with deficiencies in most areas; total impairment was not shown. 2. The weight of the evidence is against a finding that for the period from December 1, 2015 onward the Veteran's PTSD manifested as total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent, but no higher, for PTSD for the period from October 14, 2014 to November 30, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130. 2. The criteria for entitlement to a disability rating in excess of 70 percent for PTSD for the period from December 1, 2015 onward have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from August 2000 to December 2000; February 2001 to July 2001; March 2004 to July 2005; October 2005 to May 2006; June 2007 to June 2008; and July 2010 to November 2011. This matter originates from a February 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied an October 2014 claim for a disability rating in excess of 30 percent for PTSD. This claim was previously before the Board of Veterans' Appeals (Board) in January 2019, at which time it was remanded to obtain a VA examination to determine the current severity of the Veteran's PTSD. The Veteran was afforded a VA examination in September 2020. In October 2020 the RO granted the Veteran a disability rating of 50 percent for PTSD, effective August 15, 2015; and a disability rating of 70 percent, effective December 1, 2015. As the highest possible rating has not been assigned for the periods on appeal, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993) A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Board's September 2020 remand directives, the Veteran was afforded a VA examination in September 2020. The Board finds that there has been substantial compliance with its September 2020 remand directives, and adjudication of the Veteran's claim is appropriate. Entitlement to a disability rating of 70 percent, but no higher, for the period from October 14, 2014 to November 30, 2015 is granted; entitlement to a disability rating in excess of 70 percent for the period from December 1, 2015 onward is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A disability rating of 30 percent is in effect for the period from October 14, 2014 to August 15, 2015; a disability rating of 50 percent is in effect for the period from August 15, 2015 to November 30, 2015; and a disability rating of 70 percent is in effect for the period from December 1, 2015 onward. A disability rating of 50 percent requires a showing 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. 38 C.F.R. § 4.130. A disability rating of 70 percent requires a showing 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 disability rating of 100 percent requires a showing 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 Board acknowledges that use of the term "such symptoms as" in § 4.130 indicates that the list of symptoms that follows is non-exhaustive, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation... However, because "[a]ll nonzero disability levels [in § 4.130] 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 rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."... Section 4.130 "requires not only the presence of certain symptoms" but also that those symptoms have caused the level of occupational and social impairment associated with a particular disability evaluation... Therefore, although the veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a particular evaluation "also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment...." Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017). In November 2014, a VA examiner documented the Veteran's report that he was having trouble sleeping, as his "brain won't shut off." The Veteran reported that he spent his free time alone and described himself as "angry and empty." The Veteran reported "thinking about being in the combat zone all of the time, every day . . . wondering what I should have done differently." The Veteran reported flashbacks. The VA examiner documented the following symptoms: depressed mood; anxiety, chronic sleep impairment; recurrent, involuntary, and intrusive distressing memories of traumatic events; recurrent distressing dreams; avoidance of or efforts to avoid distressing memories, thoughts, or feelings; avoidance of or efforts to avoid eternal reminders; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts with little or no provocation; and problems with concentration. As noted above, the Veteran reported being employed part time as a delivery driver. He stated that he didn't play with his children as much as he used to and that he had less communication with his wife. In August 2015 the Veteran reported to VA treating providers that his PTSD symptoms had been worsening for the past three years and that he had become increasingly withdrawn and isolative at work and with family. The Veteran reported that his performance at work had "deteriorated" and that he had been experiencing transient suicidal thoughts. In December 2015 the Veteran reported that over the course of 16 years of employment with the same company, he had previously been employed as an assistant manager, but was now down to 6 hours a week as a driver; he described the part time job as "quite stressful" and stated that he lost his manager position due to anger outbursts. The Veteran also reported daily suicidal ideation, excessive, inappropriate anger outbursts with his children, and that he did not attend his children's school programs socialize much with his family. In January 2016 the Veteran stated that he continued to have complaints of anger, temper outbursts, and periodic suicidal ideations. The Board finds that the evidence is at least in equipoise as to whether the Veteran's reports of symptoms to treating providers in August 2015, December 2015, and January 2016 represented the onset of new symptoms, or a continuation of the worsening over the last three years described by the Veteran in August 2015. While the Veteran has maintained varying degrees of employment and described his marriage as "stable" during the period on appeal, his symptoms during the period on appeal are characterized as worsening over the years, with reports of suicidal ideation, marked changes in employment, and angry outbursts with family members. The Board thus finds that for the period from October 14, 2014 to November 30, 2015 the evidence is at least in equipoise as to whether the Veteran's PTSD symptoms most closely approximated occupational and social impairment, with deficiencies in most areas, particularly impaired impulse control, and suicidal ideation. While a 70 percent rating is deemed warranted, the Board finds that at no point during the period on appeal (from October 14, 2014 onward) has the Veteran's PTSD manifested as total occupational and social impairment. VA mental health records from throughout the period on appeal reflect treating providers' evaluations of the Veteran as showing good hygiene and grooming, logical and goal directed speech, relevant thought contact, and clear sensorium. In November 2014 the Veteran reported to a VA examiner that he had been married to his spouse for the previous 9 years. An August 2015 VA treatment note documents the Veteran's report that his marriage was "essentially stable." In January 2017 the Veteran reported to VA treating providers that he had the support of his wife and friends. In November 2014, the VA examiner documented the Veteran's report that he was pursuing a bachelor's degree; in March 2016 VA treating providers documented that he had completed his bachelor's degree in Computer Information Science. In November 2014 the VA examiner documented that the Veteran was employed part-time as a driver for a company where he had worked for 16 years. In August 2015 and January 2017, the Veteran reported being employed full-time for this company. In January 2019 the Veteran reported to VA treating providers that he had begun working with a different supervisor and that the work relationship was positive. In February 2019 the Veteran reported a change in his job that would involve possible travel to other countries. In March 2020 the Veteran reported to VA treating providers that he had recently returned from a work assignment in another state working on a docked aircraft carrier. At his VA examination in September 2020, although he denied any social activities or support he indicated having a fair relationship with his wife and children. The Board notes the Veteran's suicidal ideation noted throughout the appeal period and finds that this is adequately contemplated by the 70 percent ratings now in effect. While serious, this symptom has not been shown to result in total social or occupational impairment such as to warrant the next-higher rating. As discussed above, the Board concludes that the criteria for a disability rating in excess of 70 percent, but no higher, have been met for the period from October 14, 2014 to November 30, 2015, and the same is hereby granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130. Further, the Board finds that the weight of the evidence is against a finding that the Veteran's PTSD has manifested as total occupational and social impairment at any point during the period on appeal. Accordingly, the Board concludes that the criteria for a disability rating in excess of 70 percent for the period from December 1, 2015 onward have not been met, and the same is hereby denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.