Citation Nr: 22069293 Decision Date: 12/16/22 Archive Date: 12/16/22 DOCKET NO. 18-33 293 DATE: December 16, 2022 ORDER Entitlement to an increased rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD), with depressive disorder, for the period prior to September 9, 2022, is denied. FINDING OF FACT Prior to September 9, 2022, the Veteran's PTSD most nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Prior to September 9, 2022, the criteria for an increased rating in excess of 50 percent for PTSD were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In July 2022, the Board remanded this appeal for further development. Entitlement to an increased rating in excess of 50 percent for service-connected PTSD, with depressive disorder, for the period prior to September 9, 2022, is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Staged ratings are appropriate for an increased rating claim whenever 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. 50 (2007). Service connection for PTSD was granted in a February 2015 rating decision, at which time the RO awarded a 50 percent rating, effective December 12, 2011. In October 2017, the Veteran filed the current claim for an increased disability rating. In a September 2022 rating decision, the RO awarded a 100 percent disability rating for the service-connected PTSD, effective September 9, 2022. As such, the Board will address the issue of entitlement to an increased rating for the period prior to September 9, 2022. The Veteran's PTSD has been rated on the General Rating Formula for Mental Disorders under DC 9411. Under DC 9411, 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 difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where 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; 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). In January 2018, the Veteran was afforded a VA psychological examination. He reported a tendency to isolate from others and that he had lost interest in his hobbies. He was employed by a wind turbine company at that time. He described symptoms including sleep impairment, hypervigilance, depression, anxiety, suspiciousness, mild memory loss, disturbances of motivation and mood, as well as a difficulty establishing and maintaining effective relationships. The examiner concluded that his symptoms resulted in occupational and social impairment with reduced reliability and productivity. VA treatment records reflect that the Veteran's symptoms were generally stable during this period. While he reported occasional irritability and isolated incidents of suicidal ideation, he typically described no change in the severity of his symptoms. He was employed during this time and participated in hobbies that he enjoyed. In September 2019, he attributed a temporary worsening of his symptoms to financial and work stressors. October 2020 records show the Veteran endorsed passive suicidal thoughts, but he was cooperative, logical and his cognition was intact. In May 2021, the Veteran denied suicidal thoughts, as he did again in July 2021. He also was described as logical and his cognition, attention, and concentration was intact. October 2021 records indicate the Veteran's depression had worsened, but he denied suicidal ideation . Similar findings were noted in January 2022. In April 2022, the Veteran's affect was described as broad and appropriate, his thought process was logical and his cognition, attention and concentration were intact. He denied suicidal ideation. The same was the case as reflected in July 2022 records. At the December 2021 Board hearing, the Veteran described symptoms including suicidal ideation, obsessive ritualistic behavior, weekly panic attacks, unprovoked impulse control, as well as a difficulty adapting to stressful situations. He further stated that he did not always keep up with personal hygiene and struggled to maintain relationships with family and friends. Prior to September 9, 2022, the Veteran's PTSD was characterized by sleep impairment, hypervigilance, depression, anxiety, suspiciousness, mild memory loss, isolation tendencies, loss of interest in activities, disturbances of motivation and mood, as well as a difficulty establishing and maintaining effective relationships. The January 2018 mental status evaluation by the VA examiner of record had normal results. The Board notes that, in December 2021, the Veteran reported symptoms including obsessive ritualistic behavior, weekly panic attacks, unprovoked impulse control, a difficulty adapting to stressful situations, as well as minor neglect of personal hygiene. However, the January 2018 examination report, along with multiple VA treatment records during the appeal period prior to September 2022, do not corroborate the presence of such symptomatology, as the Veteran did not report these symptoms on most other occasions. While the Veteran reported experiencing suicidal ideation, he did not describe any plan or intent and generally denied having these thoughts when asked by treatment providers. As such, the Board finds these to be isolated incidents that do not accurately reflect the Veteran's disability picture as a whole during the period on appeal. The assessments of the January 2018 VA examiner, as well as the VA treatment providers, indicate that the Veteran's level of impairment is commensurate with no more than a 50 percent disability rating during the appeal period. Indeed, the probative medical evidence suggests that the severity of his PTSD has waxed and waned throughout this time, but has not exceed that which is considered by the current 50 percent rating. The Board finds the determinations of the January 2018 VA examiner and VA treatment providers to be more probative than the lay statements of record, as they are concurrently recorded by medical professionals with expertise on psychological disorders and reflect the Veteran's functioning at the time of evaluation, rather than recollections of symptoms from months or years prior. (Continued on the next page) Although the Veteran has described having interpersonal relationships and avoiding social interaction, the January 2018 VA examiner did not find him to be unable to establish and maintain effective relationships. Indeed, he remained employed throughout the appeal period and indicated that he participated in hobbies with his children. He described an ability to independently maintain activities of daily living and there is no evidence of violent behavior, despite reports of occasional irritability. Such symptomatology does not rise to the level of severity as to warrant a 70 percent rating. As noted above, the Veteran's psychological symptoms are more consistent with a 50 percent rating. Based on the foregoing, the Veteran's symptomology is best described as occupational and social impairment with reduced reliability and productivity. As such, an increased rating in excess of 50 percent for service-connected PTSD, prior to September 9, 2022, is not warranted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.