Citation Nr: 22018947 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-58 865 DATE: March 30, 2022 ORDER For the entire period on appeal, beginning April 12, 2011, an initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT For the entire period on appeal, the Veteran's PTSD symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, but the evidence did not more nearly approximate total social and occupational impairment. CONCLUSION OF LAW For the entire period on appeal, the criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1969 to November 1970. This matter is before the Board of Veterans' Appeal (Board) on appeal from a November 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board notes that service connection for PTSD was granted in a May 2016 rating decision, which assigned an initial rating of 50 percent, effective April 12, 2011. As the rating decision on appeal was issued within one year of the May 2016 rating decision, the May 2016 rating decision did not become final and the issue on appeal has been recharacterized to reflect that it is an appeal of the initial rating assigned for PTSD. This matter was remanded by the Board in April 2020. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion 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). Entitlement to an initial disability rating greater than 50 percent for PTSD. 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 for any rating claim 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); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). 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. 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). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). For the entire initial rating period on appeal, the Veteran is in receipt of a 50 percent rating under 38 C.F.R. § 4.130, DC 9411, applicable to PTSD. He contends that a higher rating is warranted for the entire period on appeal. 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 rating of 50 percent is assigned 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 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 determination should be based on all of a veteran's symptoms affecting his or her 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. Based on review of the evidence, both lay and medical, the Board finds that the Veteran's PTSD symptoms have most nearly approximated occupational and social impairment with deficiencies in most areas for the entire initial rating period on appeal, beginning April 11, 2012. The evidence reflects that the Veteran has experienced recurrent suicidal ideations. See April 2011 VA treatment record (indicating that the Veteran reported that he tried to hang himself approximately ten years ago, but had no current suicidal ideation); January 2015 VA treatment record (denying suicidal ideation, but reporting that about five years ago he was going to run his car into a concrete bridge, but he did not); December 2016 statement (reporting that in November it was all he could do to keep from committing suicide and sought treatment from a VA doctor); February 2018, November 2018, February 2019, and February 20120 VA treatment record (noting passive suicidal thoughts). There is also some evidence of memory impairment and neglect of personal hygiene. See May 2019 VA examination report. The evidence also reflects symptoms of irritability and impaired impulse control. See December 2016 VA treatment record (indicating the Veteran reported ongoing irritability, episodic anger, and irritable episodes which were associated with increased anxiety); May 2019 VA examination report (noting that the Veteran reported that he "get[s] angry too easily"). Finally, the evidence reflects that the Veteran has experienced symptoms of anxiety, depressed mood, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and neglect of personal appearance and hygiene. See April 2016 and May 2019 VA examination reports; . These symptoms more nearly approximate the criteria for a 70 percent rating for the entire initial rating period on appeal. However, the Board further finds that, for the entire period on appeal, a rating higher than 70 percent is not warranted. The next-higher rating of 100 percent under DC 9411 generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record. In this case, there is no evidence of disorientation to time or place, persistent delusions or hallucinations, persistent danger of hurting self or others, 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. See April 2016 and May 2019 VA examination reports. Throughout the period on appeal, the Veteran has remained married to his wife of more than 50 years and has been active in his community and church, thereby indicating that he does not have total social impairment. See April 2016 VA examination report (noting attending and volunteering at church, good relationships with family members, and being married to the same woman since prior to service, though the Veteran's wife reported a history of marital problems); May 2019 VA examination report (noting that the Veteran reported having veteran friends with whom he attends church and lived with his wife of 50 years). To the extent that the May 2019 VA examination report indicates that the Veteran's PTSD symptoms resulted in neglect of personal appearance and hygiene, other evidence indicates that the Veteran does not have issues regarding personal appearance and hygiene; thus, the evidence does not indicate that these symptoms rise to the level of an intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene), as is indicative of the criteria for a 100 percent rating. See November 2011 VA psychology note (indicating the Veteran was dressed casually and his hygiene was adequate); June 2015 VA psychology note (indicating the Veteran's grooming and hygiene were adequate); April 2016 VA examination report (noting the Veteran was dressed casually and appropriately for the weather, and his appearance indicated good attention to personal hygiene). Furthermore, the Veteran's reported mild memory loss and impaired concentration do not rise to the levels of disorientation to time or place, gross impairment in thought processes, or memory loss for names of close relatives, own occupation, or own name, as is indicative of the criteria for a 100 percent rating. For these reasons, total occupational and social impairment is not demonstrated by the record, and a 100 percent rating for the Veteran's PTSD is not warranted at any time during the appellate period. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Higgins, J.R. 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.