Citation Nr: 21031486 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 17-54 422 DATE: May 22, 2021 ORDER A 70 percent rating, but no higher, is granted for posttraumatic stress disorder (PTSD) for the entire period on appeal (i.e., since October 1, 2014 rather than just instead since September 12, 2017). FINDING OF FACT For the entire period on appeal (i.e., since October 1, 2014 rather than just instead since September 12, 2017), the Veteran's PTSD has caused occupational and social impairment with deficiencies in most areas, though not total occupational and social impairment. CONCLUSION OF LAW The criteria are met for a 70 percent rating for the PTSD for the entire period on appeal, so since October 1, 2014, and not just since September 12, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126-4.130, Diagnostic Code (DC/Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1996 to October 1999. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) that granted service connection for PTSD and assigned an initial 50 percent rating for it retroactively effective from October 1, 2014, the date of receipt of the Veteran's informal claim for service connection for this mental disorder. In response to that May 2016 rating decision, the Veteran submitted a timely Notice of Disagreement (NOD) requesting a higher initial rating for her PTSD. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating that, when a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others). This "staging" of the rating since has occurred because, in a more recent March 2018 rating decision during the pendency of this appeal, the RO increased the rating for the Veteran's PTSD from 50 to 70 percent as of September 12, 2017. The RO denied any greater rating, and she since has continued to appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). So, the appeal now concerns whether she was entitled to an initial rating higher than 50 percent for her PTSD prior to September 12, 2017 (i.e., from October 1, 2014 to September 11, 2017) and whether she has been entitled to a rating higher than 70 percent since September 12, 2017. The Veteran testified in support of this claim during a recent March 2021 "virtual" tele-conference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Entitlement to an initial rating higher than 50 percent for the PTSD prior to September 12, 2017 and to a rating higher than 70 percent since Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, as already alluded to, if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, 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. Under the General Rating Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, cause the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran's PTSD initially was rated as 50-percent disabling from October 1, 2014 through September 11, 2017, but it has been rated as 70-percent disabling since September 12, 2017. During her recent March 2021 hearing before this Board, she and her representative argued that the higher 70 percent rating is warranted throughout the appeal period, so since October 1, 2014. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A maximum 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The Veteran's PTSD care provider, Dr. Slap-Shelton, provided supporting statements in July 2015 affirming the Veteran experiences suicidal ideation, recurring depression with vegetative signs of depression, flashbacks, problems recalling specific events, and varying if not general neglect of personal hygiene, all related to her PTSD. The Veteran, herself, also submitted a September 2015 statement attesting that her PTSD symptoms, including especially her depression, guilt, and withdrawal, cause relationship problems, particularly with her spouse. She also indicated during her more recent hearing that her spouse since has left her because he could no longer put up with her. In June and October 2017, she discussed her specific problems forming and maintaining relationships, expounding on difficulties with trust, intimacy, hygiene, and suicidal thoughts. She also stated that she could not maintain employment due to her symptoms. VA mental health treatment notes confirm suicidal ideation and depression in July 2017. And, during her March 2021 hearing, she testified that her symptoms were all present when she applied for service connection for PTSD in 2014 and remained unchanged in 2015 and during the years since. During the May 2016 VA PTSD examination, the examiner found occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with symptoms including depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), and disturbances in motivation and mood. These symptoms are consistent with a 50 percent disability rating, so with the rating she initially had as of October 1, 2014. See 38 C.F.R. § 4.130, DC 9411. Notably, however, the examiner also listed additional symptoms attributable to the Veteran's PTSD, including avoidance, relationship problems, angry outbursts, and passive suicidal ideation. These symptoms are more commensurate with a 70 percent disability rating. Indeed, as the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has explained, mere contemplation of suicide, even without any actual intent or plan, is sufficient reason to assign a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Since separating from service, the Veteran has reported having multiple hospitality and telemarking jobs and a period of homelessness. She earned a business degree but did not enter the workforce, tending to suggest greater impairment than just an "occasional decrease in work efficiency." Thus, when considering the results of that VA mental status examination in conjunction with the Veteran's hearing testimony and medical treatment records, the evidence is at least in relative equipoise, if not more favorable to the claim, in establishing that her PTSD has caused what has amounted to occupational and social impairment with deficiencies in most areas since October 2014 when she filed her claim of entitlement to service connection for this mental disorder. The record is replete with suggestion of suicidal ideation, neglect of personal appearance and hygiene, and near continuous depression for the entire rating period under review. Her treatment records reflect that her impairment level and symptoms did not just worsen as of September 2017 to justify rating her PTSD as 50-percent disabling prior to then but higher, as 70-percent disabling, only since. Rather, she has experienced virtually the same symptoms and consequent level of occupational and social impairment throughout the period under review, so since filing her informal claim on October 1, 2014. As such, the Board finds sufficient evidence to justify granting the higher 70 percent rating for her PTSD for the entire period under review, so since October 1, 2014 (rather than just since September 12, 2017). That said, although the Veteran's symptoms are severe and result in a significant level of impairment in her occupational and social functioning, the Board finds there is insufficient evidence to grant an even higher 100 percent rating since they must be totally disabling from both occupational and social standpoints. In making this determination, the Board is mindful that an 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, 11617 (Fed. Cir. 2013). The symptoms listed in DC 9411 are not exhaustive, but rather "serve as [mere] examples of the type and degree of symptoms, or their effects, that would justify a particular rating." See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Symptoms commensurate with an even higher 100 percent rating under DC 9411 include gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. While there is no disputing the Veteran has some of these impairments, the question is of what frequency and to what extent, and, based on the evidence of record, it is not shown she has this even greater level of occupational and social impairment required for the highest permissible schedular rating of 100 percent, as opposed to a 70 percent rating. See Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.