Citation Nr: 21040222 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-29 243 DATE: July 2, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT PTSD has not caused total social and occupational impairment. CONCLUSION OF LAW The criteria for a disability rating higher than 70 percent for PTSD are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 2016 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the record and has been reviewed. In September 2019, the Board remanded this matter for additional medical inquiry. The case is again before the Board for appellate review. Increased rating The Veteran has been service connected for PTSD since November 2009. The RO awarded an initial rating of 50 percent for the disorder. On March 17, 2015, the Veteran filed a claim of entitlement to an increased rating. In the rating decision on appeal, the RO denied the claim. Later in the appeal period, in a July 2020 rating decision, the RO granted an increased rating of 70 percent effective the date of claim. The Veteran continues to seek a higher rating. Relevant legal authority Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The applicable law and regulations concerning effective dates state in relevant part that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule exists under 38 C.F.R. § 3.400 (o)(2). This provision allows VA to assign an effective date for increased rating up to one year prior to the date of claim where medical evidence indicates an increase in disability during that time period. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. PTSD is rated under Diagnostic Code (DC) 9411 of 38 C.F.R. § 4.130. This DC authorizes compensable ratings of 10, 30, 50, 70, and 100 percent. As the disorder has been rated as at least 50 percent disabling throughout the appeal period, the Board's inquiry will focus on whether the 70 or 100 percent rating has been warranted during the appeal period. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Diagnostic Code 9411 and other DCs addressing psychiatric disabilities are addressed under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. A 70 percent 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; obsessive 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. A 100 percent rating is warranted for a mental disorder when there is 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. 38 C.F.R. § 4.130. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Evidence and analysis The questions before the Board are, first, whether a rating higher than 50 percent was warranted in the year prior to the claim for increased rating, and whether, since the claim, the 100 percent rating has been warranted. The relevant evidence consists of lay statements from the Veteran, VA treatment records, private medical records, an April 2016 private medical report, and VA compensation examination reports dated in December 2015, January 2020, and October 2020. With regard to the year prior to the claim, a rating higher than 50 percent is unwarranted. There is no evidence dated during that time period indicating severe PTSD. Indeed, the only evidence dated between March 2014 and March 2015 consists of several VA treatment records indicating that the Veteran was functioning well despite his PTSD. Indeed, one record, dated in March 2014, indicates only mild depression from the disorder. Since the claim, the evidence is divided on the issue of whether PTSD has caused total social and occupational impairment. Certain evidence indicates that PTSD impairment is total. During the June 2019 hearing, the Veteran described problems with anger, suicidal ideation, memory, panic attacks, hypervigilance, and getting along with others socially and occupationally. The April 2016 private report describes PTSD as "severe and chronic." The report states that the disorder involves severe insomnia and causes feelings of alienation and suspiciousness. The examiner noted several symptoms related to PTSD. The report notes a recent conflict at a gas station due to the Veteran's anger, notes suicidal ideation, notes stress, anxiety, discomfort in crowded places, and notes flashbacks, intrusive thoughts, and hypervigilance. However, the report is of limited probative value because it is unclear that its finding of total impairment is based on symptomatology during the appeal period. In finding severe impairment, the report appears to rely on instances of alcohol abuse and anger prior to the March 2015 claim on appeal. For example, the examiner discussed the Veteran's excessive alcohol consumption over 20 years ago and his anger and punching of walls decades earlier when his children were teenagers. And the examiner contradicted herself. She found total impairment but then qualified the finding by stating that PTSD caused 80 percent social impairment. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). By contrast, the VA reports clearly focus on symptoms during the appeal period. As with the private report, the December 2015, January 2020, and October 2020 VA reports note the severe symptoms supporting the assignment of a 70 percent rating, such as chronic sleep impairment, bad temper, intrusive memories of service in the Republic of Vietnam, depressed mood, flat affect, and difficulty establishing and maintaining effective social and work relationships. However, the reports, along with the VA treatment records dated between 2014 and 2020, demonstrate that the Veteran is not totally disabled by PTSD. Each report details the Veteran's successful family life with his wife of over 45 years, his daughters, and their grandchildren. Each indicates that the Veteran has retired. Each details the Veteran's enjoyment of physical activities such as hunting and fishing. Each indicates that the Veteran does not act out with anger despite his frustrations. And the reports variously describe the Veteran as fully oriented, cognitively sound, congruent, relevant, honest, logical, friendly, expressive, open, responsive, cooperative, attentive, with normal energy and appetite, intact memory, normal behavior, appearance, and hygiene, with the ability to do all activities of daily living without assistance, and without any delusions, hallucinations, obsessive rituals, gross impairment in thought processes or communication, suicidal or homicidal ideations, and without any danger to self or others. Indeed, the December 2015 and January 2020 examiners found the criteria for a 50 percent rating met under DC 9411, while the October 2020 examiner found the criteria for a 0 percent rating met. See 38 C.F.R. § 4.130. Moreover, the VA treatment records dated since 2015 are similar to the VA reports dated between 2015 and 2020. The records are absent of evidence indicating symptoms that would totally impair the Veteran. Rather, the records note the Veteran's enjoyment of family life, hunting, fishing, and indicate regularly that he had experienced a generally good mood despite his PTSD symptoms. The Board finds the VA examination reports more persuasive than the April 2016 private report. The opinions are explained with citations to facts in the record, are based on a review of the claims file, and are consistent with the evidence in the record, to include treatment records dated during the appeal period indicating symptoms which are not totally disabling. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The Board also finds the VA examination reports more persuasive than the Veteran's lay assertions. The Veteran is competent to describe observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues such as diagnosis and etiology. Psychiatric disability is an internal pathology beyond his capacity for observation. It is a medical matter. Its severity is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On this more complex question, the VA reports are more credible than the Veteran's claim of total impairment. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). This is particularly the case given the absence of persuasive medical evidence supporting the proposition that PTSD has been totally disabling at any time since March 2015. On the question before the Board, the Veteran's lay assertions are outweighed by the VA reports. In sum, a 100 percent rating is not warranted here. The evidence does not support a finding that the Veteran's psychiatric problems have caused total occupational and social impairment. The preponderance of the evidence has indicated that the Veteran's thought process and communication has remained intact, and that he has not shown gross impairment in thought processes despite the temper issues he has displayed. The evidence indicates that he has been fully oriented and congruent, in control, and coherent. The evidence has shown anger and irritability, but not to such an extent that he has been in persistent danger of hurting himself or others. The evidence shows that he has been able to perform activities of daily living to include personal hygiene requirements. The evidence has generally shown that he has had intact memory, intact judgment, and the capacity for insight. In short, despite the Veteran's symptoms, he has not exhibited the type of emotional and cognitive impairment reserved for a total rating. See 38 C.F.R. § 4.130, DC 9411. Based on the foregoing evidence, the preponderance of the evidence is against the assignment of a rating higher than 50 percent prior to March 2015, and a rating higher than 70 percent since then. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND The Veteran asserts that PTSD disables him from securing and following a substantially gainful occupation. As such, a TDIU claim is on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The issue cannot be adjudicated now because it is currently pending before the RO. In recent memoranda of record, the RO has noted that it has deferred the issue. Moreover, the issue is intertwined with claims pending before the RO. The Veteran recently asserted entitlement to service connection for diabetes mellitus type 2, and to an increased rating for hearing loss disability. The matter is REMANDED for the following action: Once the RO has adjudicated the TDIU issue and has finally decided pending claims intertwined with the issue, or has certified such issues to the Board, return the TDIU claim to the Board, if in order. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee, 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.