Citation Nr: 21031696 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-36 402 DATE: May 24, 2021 ORDER For the appeal period prior to February 2, 2021, entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. For the appeal period after February 2, 2021, entitlement to a disability rating in excess of 70 percent for PTSD is denied. FINDINGS OF FACT 1. For the appeal period prior to February 2, 2021, the Veteran's PTSD more closely approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the appeal period after February 2, 2021, the Veteran's PTSD has most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and corresponding symptomatology. CONCLUSIONS OF LAW 1. For the appeal period prior to February 2, 2021, the criteria for a disability rating in excess of 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. For the appeal period after February 2, 2021, the criteria for a disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter was most recently before the Board in January 2021, at which time it was remanded for further development, to include obtaining outstanding treatment records and an examination. The RO complied with these instructions. A VA examination was conducted in February 2021. The Board is satisfied that the remand directives have been complied with. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Increased rating The Veteran asserts that his service-connected PTSD warrants an increased disability rating because his symptoms have worsened. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 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. The Veteran's PTSD is rated under DC 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies: A 30 percent rating is warranted when there is 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). A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 rating is warranted when there is 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); and an inability to establish and maintain effective relationships. A 100 percent 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; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Turning to the procedural evidence, the Veteran initially filed a claim in October 2012 for PTSD. An August 2017 rating decision granted service connection for PTSD with a 30 percent evaluation effective October 31, 2012. The Veteran timely appealed, and a January 2021 Board decision remanded the increased rating claim. The Veteran underwent a VA examination on February 2, 2021. A February 2021 rating decision for PTSD increased the evaluation to 70 percent effective February 2, 2021. Based on this procedural history the PTSD claim is an initial claim dating back to the October 2012 claim. July 2013 VA treatment records include a psychiatry consult. The Veteran presented appropriately, he was oriented to person, time, place and situation, his speech was clear and cautious, his mood was dysthymic, and his thought process presented as appropriate. He reported irritability, heightened vigilance, prone to tears, intrusive memories, avoidance behaviors, and a heightened startle response. The Veteran stated he has been in the same long-term relationship with his partner for 27 years. He was a truck driver for many years prior, but retired two years prior. He denied suicidal and homicidal ideations. A May 2014 VA examination report noted review of the Veteran's e-folder and medical records, recounted the Veteran's complaints and history, and included an in-person interview. The Veteran reported anxiety, jumpiness when he hears loud noises, irritability, and crying when he thinks about Vietnam. The examiner noted he was a pleasant man with good eye contact; clear and goal-oriented thoughts; normal range affect; and euthymic mood. There was a diagnosis of adjustment disorder with anxiety. It was determined that his symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In December 2014 and January 2015 VA treatment records, the Veteran reported for psychiatric outpatient care. It was noted that the Veteran was neatly dressed for his appointments, maintained good eye contact, spoke clearly and slowly, paucity of detail and fluency, some increased latency of response, and dysphoric affect. The Veteran reported his irritability was worsening, to include losing his temper on a daily basis with his long-term partner. No physical violence was reported. It was noted that there was some hypervigilance to the point of paranoid thinking. He denied suicidal thoughts and hallucinations. October 2015 VA treatment records include a psychiatry note in which there was significant improvement across most symptoms with medication management. The Veteran appeared neatly dressed, maintained good eye contact, spoke clearly, displayed a coherent thought process during his appointment, and had a pleasant affect. The Veteran reported improvements since the beginning of therapy and treatment, to include reduced nightmares, insomnia, anxiety, and irritability. He maintained some residual hypervigilance. He denied suicidal thoughts. April 2016, March 2017, June 2017, September 2017, September 2018, December 2018, April 2019, and October 2019, VA treatment records indicate no significant changes in the last visits. The Veteran did marry his long-term partner in June 2018. The Veteran reported continued medication management and denied suicidal thoughts. The Veteran underwent a VA PTSD examination on February 2, 2021. The examination report noted review of the Veteran's e-folder and medical records, recounted the Veteran's complaints and history, included a physical examination of the Veteran, and an interview of his spouse. The Veteran was adequately groomed and dressed appropriately for the interview. The examiner observed that the Veteran was underproductive verbally as well as minimally cooperative (often confused), alert (forgetful), and oriented (incorrect month and day of the month); anxious; restless; depressed; irritable; thought content was normal; thought process was linear and logical; and he exhibited no signs of psychosis. The Veteran reported depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impartment of short and long term memory; flattened affect; speech intermittently illogical, obscure, or irrelevant; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; suicidal ideation (without current intentions or plans); and neglect of personal appearance and hygiene. There was a diagnosis of PTSD. The examiner found occupational and social impairment with reduced reliability and productivity. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds for the appeal period prior to February 2, 2021, a rating in excess of 30 percent is not warranted. For the appeal period after February 2, 2021, a rating of 70 percent, but no higher, is warranted. 1. Appeal period prior to February 2, 2021 In this regard, for the appeal period prior to February 2, 2021, the Board finds that the evidence of record, to specifically include the 2014 VA examination report, VA treatment mental health records dated from July 2013 to October 2019, and the Veteran's own competent and credible statements regarding his symptoms from 2013 to 2019, demonstrates that his PTSD has been productive of depressed mood; anxiety; irritability; heighted vigilance; intrusive memories; avoidance behaviors; and a heightened startle response. These symptoms are contemplated in the criteria for a 30 percent rating. In so finding, the Board finds persuasive that the Veteran's level of occupational and social impairment symptoms on the VA examination in May 2014 was assessed as not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Board finds this to be competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007); Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The VA examiner interviewed and examined the Veteran, was informed of the pertinent evidence, reviewed the Veteran's claims file, and fully articulated the opinion in the report. Moreover, from October 2015 until October 2019, the Veteran had significant improvements since beginning therapy and treatment, to include a reduction in nightmares, insomnia, anxiety, and irritability. He was able to maintain effective social relationships, presented coherent thought processes, dressed appropriately, was oriented to person, time, place, and situation, and he denied suicidal and homicidal ideations and plans. The occupational and social impairment described above does not warrant a disability rating in excess of 30 percent. See Vazquez-Claudio, 713 F.3d at 11617; Mauerhan, 16 Vet. App. at 443. 2. Appeal period after February 2, 2021 As for the appeal period after February 2, 2021, the only evidence relevant to this time period is the February 2021 VA examination report. In pertinent part, that reports reveals that, while the examiner checked the box indicating 'occupational and social impairment with reduced reliability and productivity,' the Board finds that the symptoms observed are commensurate with occupational and social impairment with deficiencies in most areas, such as work, school, school, family relations, judgement, thinking and/or mood. In particular, the evidence from the February 2021 VA examination shows a deficiency in mood, thinking, memory, irritability, neglect of personal appearance and hygiene, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation without current intent or plan. The Board finds that his level of occupational impairment is commensurate with his current rating. Accordingly, after February 2, 2021, a 70 percent evaluation is warranted. However, at no time does the record demonstrate total occupational and social impairment. In this case the record has consistently reflected normal speech, thought process and insight. In the February 2021 VA records, the Veteran was oriented; speech and thought content was normal; thought process was linear and logical; concentration, insight, and judgement seemed to be intact and fair; no signs of psychosis; and no delusions were noted. Based on the foregoing, the Board finds a 70 percent evaluation, but not higher, for PTSD is warranted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.