Citation Nr: 22038017 Decision Date: 07/01/22 Archive Date: 07/01/22 DOCKET NO. 19-29 242 DATE: July 1, 2022 ORDER A 70 percent disability rating for service-connected posttraumatic stress disorder (PTSD) and major depressive disorder from September 28, 2016 through July 8, 2021 is granted. A disability rating in excess of 70 percent for service-connected PTSD and major depressive disorder from July 9, 2021 is denied. FINDINGS OF FACT 1. The evidence of record shows that the Veteran's service-connected PTSD and major depressive disorder are manifested by deficiencies in most areas of social functioning and occupational functioning from September 28, 2016 through July 8, 2021 including depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, suicidal ideation, impaired impulse control, difficulty in establishing and maintaining effective work and social relationships, inability to established and maintain effective relationships, and obsessional rituals which interfere with routine activities. 2. At no time during the appeal period did the Veteran's service-connected PTSD and major depressive disorder manifest in symptoms and overall impairment more nearly approximating total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating for service-connected PTSD and major depressive disorder from September 28, 2016 through July 8, 2021 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent for service-connected PTSD and major depressive disorder from July 9, 2021 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps on active duty from June 2014 to March 2000 This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 Regional Office (RO) rating decision. In that rating decision, the RO continued the previously assigned 50 percent disability rating for PTSD and major depressive disorder. The Veteran's notice of disagreement (NOD) was received in June 2017. The RO issued a statement of the case (SOC) in August 2019. The Veteran's VA Form 9, substantive appeal to the Board, was received in September 2019. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Additional, relevant VA treatment records and a September 2021 VA examination report were associated with the claims file after the September 2019 SOC. Although the Agency of Original Jurisdiction (AOJ) did not consider these records in a supplemental statement of the case, the additional, relevant VA treatment records and September 2021 VA examination were considered by the AOJ in a November 2021 rating decision. Thus, the AOJ considered the additional relevant evidence and as such, there is no prejudice to the Veteran in the issuance of this decision. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). During the pendency of the appeal, the RO issued a rating decision in November 2021 granting an increased rating for the service-connected PTSD and major depressive disorder to 70 percent, effective from July 9, 2021. 1. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD and major depressive disorder from September 28, 2016 to July 9, 2021. 2. Entitlement to a disability rating in excess of 70 percent for service-connected PTSD and major depressive disorder The Veteran contends that his PTSD warrants a higher disability rating, because his symptoms interfere with his work and family life, he has difficulty maintaining personal relationships, and he experiences suicidal ideation. See June 2017 NOD and January 2021 Hearing Transcript. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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. All reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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. 38 C.F.R. § 4.126. The Veteran's service-connected PTSD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Diagnostic Code 9411 is rated pursuant to the General Rating Formula for Mental Disorders. Id. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned 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; 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining whether the Veteran meets the criteria for a 70 percent rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, or mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). Furthermore, the Court has held that entitlement to a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The medical evidence of record consists of VA treatment records and VA examinations dated in January 2017 and September 2021. Furthermore, lay statements from the Veteran provide additional information about the Veteran's psychiatric symptoms. This evidence, the most pertinent of which is summarized below, shows that the Veteran's condition more nearly approximates occupational and social impairment with deficiencies in most areas to include work, social relations, and mood for the entire relevant appeal period, warranting a 70 percent disability rating from September 28, 2016. However, this evidence also shows that a rating in excess of 70 percent is not warranted at any time during the relevant appeal period. In this regard, the evidence shows that the Veteran's symptoms of PTSD and major depressive disorder include suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, and inability to establish and maintain effective relationships. Specifically, a January 2017 VA examiner stated that the Veteran's symptoms of PTSD include recurrent and intrusive distressing recollections of stressful event, trying to avoid thoughts, conversations, and external reminders associated with stressful event, getting angry and irritable easily, and exaggerated startle response. The January 2017 VA examiner determined that the Veteran's major depressive disorder resulted in diminished interest in activities that previously gave the Veteran pleasure, loss of energy, and feelings of worthlessness. The January 2017 VA examiner documented that the Veteran experienced the following symptoms attributed to the Veteran's PTSD and major depressive disorder: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to established and maintain effective relationships, and obsessional rituals which interfere with routine activities. A November 2016 VA treatment record documents that the Veteran complained of anxiety and paranoia. He was worried that people were conspiring against him. A March 2020 VA treatment record reveals that the Veteran experienced sleep disturbance, guilt, loss of concentration, anxiety, nightmares, and he was often depressed and irritable. Furthermore, the Veteran testified at the January 2021 Board hearing that he has had suicidal thought or ideations. He also stated that his constant depression affects his ability to function every day. The Veteran testified that he has a hard time going out and so he mainly sits at home watching television. In considering the overall evidence of record, the Veteran's PTSD and major depressive disorder is manifested by deficiencies in most areas of social functioning and occupational functioning from September 28, 2016. Nonetheless, the evidence reflects that the Veteran's symptoms do not more nearly approximate the requirements for a 100 percent disability rating at any time from September 28, 2016. The medical and lay evidence shows that the Veteran did not have gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Veteran also did not have other symptoms of similar severity and frequency. See VA examinations dated in January 2017 and September 2021 and VA treatment records. Specifically, the Veteran dressed casually for his VA mental health treatment, and he had adequate grooming and hygiene. See VA treatment records dated in September 2016, October 2016, November 2016, October 2017, June 2019, and October 2019 and September 2013 and September 2021 VA examinations. The medical evidence reflects that the Veteran was oriented to person, place, and time throughout the appeal period. He had normal rate, volume, and tone of speech. Concentration ranged from fair to good throughout the appeal period. Insight and judgement were intact. The Veteran's thought process was organized, goal directed, and linear. The Veteran testified at the January 2021 Board hearing that he had a few instances where he thought about suicide a couple of times and the September 2021 VA examiner documented that the Veteran endorsed suicidal ideation without a plan or intent. He described a history of have a plan approximately several months ago, but he denied ever having any intention to carry out his plan. However, the Veteran consistently has denied experiencing suicidal or homicidal ideation in his VA treatment records. Therefore, in considering the severity, frequency, and duration of the Veteran's indication of harming himself or others, the medical and lay evidence does not reflect that the Veteran is in persistent danger of hurting himself or others. The lay and medical evidence reflects that the Veteran's symptoms of PTSD and major depressive disorder impact his ability to work and his social relationships. In this regard, the VA examiners in January 2017 and September 2021 determined that the Veteran's psychiatric symptoms did not result in total occupational and social impairment. The evidence shows that the Veteran is currently employed as a mailman. He has worked as mailman for at least 18 years. The Veteran reported at the January 2017 VA examination that he did not socialize with his coworkers. He also stated that about two to three times per week when delivering mail, he would forget where he was, which would put him behind his schedule. He also felt that his supervisor was out to get him. The September 2021 VA examination report shows that the Veteran stated that he recently received a letter of warning due to neglecting his duties and his impairment at work was due to mental health symptoms. The Veteran stated that he often would lose track of his route, forget where he was going, and he had difficulty planning activities and directions for work. With respect to social impairment, the evidence does not reflect that his PTSD and major depressive disorder symptoms result in total social impairment. Specifically, the evidence shows that he was divorced. The January 2017 VA examination report reveals that he had joint custody of his three sons (aged 18, 14, and 8) and he had them one week every other week. He also kept in touch with his eighteen year old daughter. The Veteran stated that he was often irritable at home with his children, and he would lose his temper about once every four or five months. The Veteran lost interest in previously enjoyed activities of playing sports with his children and hanging out with his friends. He has a hard time trusting family, friends, and coworkers. The Veteran mainly passes the time watching television and he does not socialize often. He noted during the January 2017 VA examination that he would go out with friends to the bar for some drinks about every two weeks. The Veteran reported in the September 2021 VA examination that had a positive relationship with his children, but he was closest with one son. He stated that he did not have other social support and he denied any other close relationships. He was not married or in a romantic relationship. The Veteran also denied any hobbies or interests, and stated he had discontinued all previously enjoyed activities. Accordingly, the evidence of record reflects that neither the symptoms nor overall impairment caused by the Veteran's PTSD and major depressive disorder more nearly approximate total occupational and social impairment. Therefore, a 100 percent disability rating for PTSD and major depressive disorder is not warranted at any time from September 28, 2016. In this case, as discussed above, the Veteran's overall disability picture, including symptoms reported in the VA treatment records, during the January 2021 Board hearing, and at the VA examinations, indicate that the Veteran's disability picture more nearly approximates the criteria for the assignment of a 70 percent rating from September 28, 2016. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.