Citation Nr: 21042728 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-25 116 DATE: July 13, 2021 ORDER For the initial rating period on appeal to March 15, 2018, a rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. For the entire period on appeal, a rating in excess of 70 percent for PTSD is denied. FINDINGS OF FACT 1. For the initial rating period on appeal to March 15, 2018, the Veteran's PTSD symptoms most nearly approximated occupational and social impairment with deficiencies in most areas. 2. For the entirety of the rating period on appeal, the Veteran's PTSD symptoms do not more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. For the initial rating period on appeal to March 15, 2018, the criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2020). 2. For the entire appeal period, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2003 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned an initial rating of 50 percent and denied service connection for a lumbar spine disability. In January 2016, the Veteran submitted a notice of disagreement, asserting his symptoms warranted a 70 percent rating in addition to entitlement to service connection for a lumbar spine disability. In July 2017, the RO granted service connection for lumbar strain, which represents a complete grant of those benefits sought. In March 2018, the RO increased the rating for PTSD from 50 to 70 percent, effective March 15, 2018. The Veteran timely filed a VA Form 9, bringing the claim before the Board. A Board video-conference hearing was held in April 2021 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here however, the Veteran reported in an April 2021 VA treatment record he recently moved cities for a new job. The Board, therefore, finds that Rice is inapplicable, and a TDIU request has not been inferred. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to Increased Rating for PTSD The Veteran is in receipt of an initial 50 percent disability rating for PTSD from July 9, 2013, to March 15, 2018, and a 70 percent rating thereafter, under 38 C.F.R. § 4.130, DC 9411. The Veteran's PTSD is rated under the general rating formula for rating mental disorders pursuant to 38 C.F.R. § 4.130, DC 9411. Under such formula, a 50 percent rating is warranted for 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; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the RO certified the Veteran's appeal to the Board after August 4, 2014; therefore, the PTSD claim is governed by DSM-5 and the GAF scores are not relevant for consideration. See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. On review of the evidence, both lay and medical, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that the manifestations of his PTSD approximate the criteria for a disability rating of 70 percent under DC 9411 for the initial period, i.e., prior to March 15, 2018. Notably, VA and private treatment records and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms to include suicidal ideation, speech intermittently illogical, obscure, or irrelevant, impaired impulse control (such an unprovoked irritability with periods of violence), and difficulty in adapting to stressful circumstances (including work or a work like setting). The evidence includes the Veteran's reports of suicidal ideation during the appeal period, as early as February 2013. See February 2013 VA Treatment Record; July 2014 VA Treatment Record; June 2016 VA Treatment Record; and May 2017 VA Treatment Record. This included a diagnosis of chronic passive suicidality. See June 2014 VA Treatment Record. Moreover, as stated by the Veteran's representative in the April 2021 hearing, the Veteran was denied VA vocational rehabilitation due to his suicidal ideation. See April 2021 Hearing Transcript, pg. 5: July 2016 Counseling Record Narrative Report. The Court has held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Indeed, the Veteran indicated suicidal ideation at several points during the appeal period, to include a motorcycle accident that the May 2017 VA physician noted may have been an attempt to kill himself, and a June 2015 VA examiner also made note of the accident in relation to suicidal intent. Moreover, according to January 2015 VA mental health psychiatric consultation notes, a staff psychologist indicated that the Veteran would go on tangents, discussing topics of string theory and black holes, watching crows and ravens due to their being meaningful, and being a "pagan." He was found to have a subtle thinking disorder. Lastly, although the June 2015 examiner checked the box indicating that the Veteran's occupational and social impairment manifested with only occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, the actual symptoms reported and noted are more consistent with a 70 percent rating. Accordingly, the Board finds the severity, frequency, and duration of the Veteran's symptoms, including passive suicidal ideation, more closely approximate the symptoms contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. However, a rating higher than 70 percent is not warranted at any time during the appeal period, as the evidence does not reflect that the Veteran's PTSD has caused total occupational and social impairment. There is no evidence of disorientation to time or place, persistent delusions or hallucinations, grossly inappropriate behavior, gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, or memory loss for close relatives, own occupation, or own name. While the record reflects that the Veteran has difficulty in relationships with friends, he has maintained optimistic about obtaining a profession in the medical field, recently obtained a job, and continued to see his father and brothers prior to relocating. A higher rating of 100 percent based on total social and occupational impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record. For these reasons, total social and occupational impairment is not demonstrated by the record, and a 100 percent rating for the Veteran's PTSD is not warranted for the entirety of the rating period on appeal. In conclusion, the Board finds that for the rating period to March 15, 2018, a 70 percent rating for the Veteran's PTSD is warranted, and a rating in excess of 70 percent is not met or approximated at any time during the appeal period. (Continued on the next page) Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.