Citation Nr: 22018601 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-49 933 DATE: March 29, 2022 ORDER Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol abuse in remission, prior to November 28, 2017, is denied. FINDING OF FACT The overall evidentiary record shows that the severity of the Veteran's psychiatric disability most closely approximated the criteria for a 30 percent disability evaluation prior to November 28, 2017. CONCLUSION OF LAW The criteria for a rating for a psychiatric disorder, to include PTSD in excess of 30 percent have not been met prior to November 28, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. A transcript of that hearing is of record. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. For VA purposes, when there is an approximate balance in the evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue is given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The U.S. Court of Appeals for Veterans Claims (Court) held that a claimant is only required to demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court further pointed out that, "to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to a disability rating in excess of 30 percent prior to November 28, 2017 for PTSD with major depressive disorder and alcohol abuse in remission In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2018). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). The Veteran was initially granted service connection for a psychiatric disorder in a February 2016 rating decision, which assigned a 30 percent rating, effective October 9, 2015, the day VA received the claim. He presented a claim for an increased rating on a May 2016 notice of disagreement (NOD). In a February 2018 rating decision, the AOJ assigned a temporary 100 percent evaluation, effective November 28, 2017 because of a hospitalization over 21 days. The 30 percent evaluation was continued from February 1, 2018. At the direction of the December 2019 Board remand, the Veteran was afforded a VA examination to determine the severity of his psychiatric disorder. Following that examination, in a July 2020 rating decision, the AOJ increased the assigned 30 percent rating to 70 percent, effective February 1, 2018. The Veteran indicated he agreed with the award of 70 percent, from November 28, 2017 for his PTSD, but would like for the Board to revisit his rating prior to that time. The Veteran believes the date should go back to June 1, 2015 or October 9, 2015. See January 2021 Correspondence. While the Board acknowledges the Veteran's statement that he wants an earlier effective date for the 70 percent rating, what he is requesting is really for his PTSD claim to be staged differently than it currently is staged. As such, the Board will address those concerns. The following analysis addresses whether the Veteran is entitled to a disability rating higher than 30 percent from October 9, 2015 to November 28, 2017 for PTSD with major depressive disorder and alcohol abuse in remission. The relevant rating criteria are as follows. Under Diagnostic Code 9411, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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). Id. A 50 percent evaluation requires 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. Id. A 70 percent rating is prescribed when there is evidence of 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 work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. 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, 442-43 (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). Under the General 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, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Entitlement to a rating in excess of 30 percent prior to November 28, 2017 The medical evidence, combined with the Veteran's subjective reports of his symptoms, indicates that the severity level of his psychiatric disorder warrants no more than the currently assigned 30 percent rating for this period on appeal. The evidence shows that the Veteran's psychiatric disorder caused 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: sleep impairment, depressed mood, and anxiety. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran was afforded a VA examination in December 2015. The symptoms noted were depressed mood, anxiety, and chronic sleep impairment. The examiner noted occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. It was noted that the Veteran got divorced, but still talks frequently to his ex-wife. The Veteran has been active in the City Council, was President of the Chamber of Commerce and President of the Rotary Club. At the time, the Veteran was working two part-time jobs that he described as going well. This analysis can approximate a range of disability rating, from 10 percent to a 30 percent disability rating. On the May 2016 NOD and the August 2019 Board hearing, the Veteran indicated that he did not accurately report all of his symptomatology to the December 2015 VA examiner. Accordingly, the Board has thoroughly reviewed other evidence, such as VA treatment records, that can accurately describe the Veteran's disability picture during this period on appeal. On a June 2015 VA psychology note, the Veteran was given an initial memory exercise. The Veteran passed 3 of 3 memory exercises, with 2 of the three passing scores at 100 percent. The Veteran was given an advanced level memory exercise later that month and passed 2 of 3 exercises. The Veteran voiced his desire to volunteer, to be around people and to help people. See June 2015 VA treatment note. An October 2017 VA treatment note shows no disturbances of motivation and mood and no difficulty in establishing and maintaining effective work and social relationships. It was reiterated that the Veteran wants to help others and has a strong love of family. A November 2017 VA treatment note mentions the Veteran's trouble falling or staying asleep. This entry also noted no problems arguing or getting along with family members. In toto, this disability picture does not exceed the 30 percent evaluation. The next higher, 50 percent rating, is not demonstrated by the evidence of record, as the Veteran's psychiatric disorder was not manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: circumstantial, circumlocutory or stereotyped speech, 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. Id. All of the medical records during this period on appeal noted that the Veteran was alert and cooperative, with normal attention span and cooperation with no suicidal or homicidal ideations. No examination of record notes symptoms such as flattened affect, difficulty understanding complex commands, grossly inappropriate behavior, or near continuous panic or depression affecting the ability to function independently. The evidence does not show that symptomatology associated with the Veteran's psychiatric disorder more nearly approximates the schedular criteria associated with a higher rating than the currently assigned 30 percent rating, prior to November 28, 2017. Therefore, the Veteran's psychiatric disorder warrants no more than the currently assigned 30 percent rating for this period on appeal. (Continued on the next page) For these reasons, the claim must be denied. Because the more probative evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.