Citation Nr: 23014331 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 19-00 913A DATE: March 9, 2023 ORDER For the period prior to January 6, 2020, a 50 percent rating for posttraumatic stress disorder with unspecified depressive disorder (hereinafter, PTSD) is granted. From January 6, 2020, a rating higher than 50 percent for PTSD is denied. FINDINGS OF FACT 1. For the period prior to January 6, 2020, the severity, frequency, and duration of the Veteran's PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity but did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From January 6, 2020, it is not factually ascertainable that the symptomatology associated with the Veteran's PTSD is causative of occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to January 6, 2020, the criteria for a 50 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9435-9411. 2. From January 6, 2020, the criteria for a rating higher than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, DC 9435-9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1990, from February 1991 to March 1991, and from September 2011 to November 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which continued a 30 percent rating for depressive mood disorder. The Veteran filed a substantive appeal VA Form 9 in January 2019. During the pendency of the appeal, the Veteran filed another claim for an increased rating for PTSD in January 2020. The RO issued a January 2020 rating decision, which granted an increased 50 percent rating for depressive mood disorder (claimed as PTSD), effective January 6, 2020. This increase is less than the maximum available benefit; therefore, the increased rating claim remains in controversy. AB v. Brown, 6 Vet. App. 35 (1993) Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. The law mandates resolving reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). PTSD The Veteran's service-connected acquired psychiatric disability, however characterized, is evaluated under the general rating formula used to rate psychiatric disabilities other than eating disorders, pursuant to 38 C.F.R. § 4.130. A change in diagnosis does not, in and of itself, trigger the assignment of a higher rating. Rather, the question is whether the record demonstrates that the service-connected disability, however diagnosed, warranted a rating higher than 30 percent prior to January 6, 2020, and higher than 50 percent thereafter. Under the general rating formula, a 30 percent disability rating is in order 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is 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 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; 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 worklike setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted 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); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency 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. 38 C.F.R. § 4.126 (a). 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. Id. When evaluating the level of disability resulting from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). VA is required to perform a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected psychiatric disability, quantifies the level of occupational social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Prior to January 6, 2020 VA treatment records show treatment for depressive disorder and PTSD. Initially, the Veteran was prescribed Zoloft in 2014, but it the medication was changed to Wellbutrin. He also attended weekly counseling. A July 2019 VA treatment record notes that the Veteran was prescribed daily medication for his depression with insomnia. He reported symptoms such as poor appetite, panic attacks and depression. An August 2019 VA treatment record shows that the Veteran's provisionally diagnosed PTSD was manifest by symptoms such as anxiety, depression, insomnia, and isolation. His mood was depressed and irritable. The Veteran endorsed suicidal/homicidal ideation without plan. The treating social worker indicated that the Veteran's depression scale score was 16 out of 27, equating to moderately severe depression. A May 2017 VA examination report shows that the Veteran was diagnosed with unspecified depressive disorder which 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 normal routine behavior, and self-care and conversation. The examiner assessed symptoms of suspiciousness; depressed mood; panic attacks (less than weekly); mild memory loss and anxiety. The Veteran reported difficulty sleeping, and sleep disturbances 2-3 times per week. He indicated that since returning from service, he keeps his "guard up" and he always "scans the road". He reported distractibility and memory issues. He also reported difficulty being around lots of people and crowds. He indicated that he has experienced several panic attacks and recalled once feeling "closed in" a car when trying to park in a crowd of people surrounding the car. He noted that he has trouble focusing at work and he gets a "physical sensation of needing to move" at times. He also reported that he forgets tools that he needs and tasks while at work. The Board finds the symptoms and reports problems with crowds and desire to isolate consistent with a finding of difficulty in establishing and maintaining effective work and social relationships. The law mandates resolving reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. Resolving reasonable doubt in his favor, the Board finds that prior to January 6, 2020, the Veteran's service-connected psychiatric disability was manifested by occupational and social impairment with reduced reliability and productivity "due to such symptoms as weekly panic attacks, disturbances of motivation and mood, impairment of short- and long-term memory, and maintaining effective work and social relationships. As such, a 50 percent rating is warranted for the period prior to January 6, 2020. From January 6, 2020 Regarding whether a rating higher than 50 percent is warranted at any time, the Board finds that the medical evidence does not support a higher rating. Specifically, a November 2022 VA examination shows that the Veteran's psychiatric disability symptoms included anxiety; chronic sleep impairment; depressed mood; difficulty in adapting to a worklike setting; difficulty in adapting to stressful circumstances; difficulty in adapting to work; difficulty in establishing and maintaining effective work and social relationships; disturbances of motivation and mood; forgetting directions, names and recent events; mild memory loss; occupational and social impairment with reduced reliability and productivity; weekly panic attacks; and suspiciousness. The examiner noted that these symptoms caused occupational and social impairment with reduced reliability and productivity. A January 2023 VA examination report shows similar symptoms. The Veteran denied any significant change in his marital/social functioning since the November 2022 examination. He also denied suicide attempts, but he admitted that he had suicidal ideation on three different occasions that were not recent. The examiner noted that Veteran's psychiatric disability caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The record does not reflect symptoms such as obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; or neglect of personal appearance and hygiene. The Board acknowledges that the Veteran's reported history of suicidal ideation at least warrants consideration of a 70 percent rating in accordance with Bankhead, supra. In that case, the Court found that suicidal ideation alone could be sufficient to cause deficiencies in most areas so as to warrant such a rating. Here, however, the Veteran's case is distinguishable from the facts of Bankhead. In pertinent part, he has not reported having any significant functional impairment due to suicidal ideation. As such, the weight of the evidence is against a finding that, during the period on appeal, suicidal ideation, by itself or in combination with other symptoms, was of a sufficient severity, frequency, or duration to cause deficiencies in most areas. Based upon review of the evidence, the Board finds that the evidence supports the assignment of a 50 percent rating for the period on appeal prior to January 6, 2020, but that the evidence is persuasively against the assignment of a rating higher than 50 percent for the Veteran's service-connected psychiatric disability. As a higher 50 percent rating for service-connected psychiatric disability is not warranted, the claim is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hemphill, A 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.