Citation Nr: 23027271 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 19-18 978 DATE: May 8, 2023 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 23, 2019 is denied. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) for the period beginning July 23, 2019 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to July 23, 2019 is remanded. FINDINGS OF FACT 1. Throughout the period prior to July 23, 2019, the evidence persuasively weighs against finding that the Veteran's PTSD caused worse than occupational and social impairment with reduced reliability and productivity due to symptoms including depressed mood, anxiety, suspiciousness, and chronic sleep impairment. 2. Throughout the period beginning July 23, 2019, the evidence persuasively weighs against finding that the Veteran's PTSD has caused 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; and memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD prior to July 23, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent PTSD for the period beginning July 23, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in July 2017. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in February 2021. A copy of the hearing transcript has been reviewed and associated with the claims file. The Board remanded the issue of entitlement to a higher rating for PTSD for further development in March 2022. In a September 2022 rating decision, the RO granted an increased rating of 70 percent for PTSD, effective July 23, 2019. The RO also granted a TDIU effective from the same date. This award represents a partial grant of the benefits sought on appeal. 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 23, 2019 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) for the period beginning July 23, 2019 Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12?Vet. App.?119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7?Vet. App.?55, 58 (1994). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods.?Hart v. Mansfield, 21?Vet. App.?505, 509-10 (2007).?In the case of a staged rating, the effective date of an increase will be the earliest date as of which it is factually ascertainable from all evidence of record that an increase in disability had occurred. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or if there is an approximate balance of positive and negative evidence, with the appellant prevailing in either event, or whether the evidence persuasively weighs against a claim, in which case, the claim is denied. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.?38?C.F.R. §§?4.7, 4.21.?After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.?38?C.F.R. §?4.3. The Veteran is in receipt of a 50 percent rating prior to July 23, 2019, and a 70 percent rating from that date, for PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Diagnostic Code 9411 applies the General Rating Formula for Mental Disorders (General Rating Formula). His claim for increase was received on May 2, 2017. Under the General Rating Formula, a 50 percent rating 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 per week; difficulty in understanding complex commands; impairment of short- and long-term memory; 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 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. Finally, a 100 percent rating is awarded 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; and memory loss for names of close relatives, own occupation, or own name. The nomenclature employed in the General Rating Formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. When evaluating the level of disability 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). Also, the factors listed in the rating criteria are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme. Rather, the determination should be based on all of a Veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002); see also 38 C.F.R. § 4.126(a). "[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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran underwent a VA psychiatric examination in May 2017. He reported generally having a good relationship with his wife of 44 years and his adult children. He also stated that he would go to church and the gym regularly and meet with a group of Veteran friends once a week for dinner. The examiner noted the following symptoms: anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The examiner opined that the Veteran's mental health symptoms caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran denied taking psychiatric medication. Behavioral observations during the examination were generally normal, and the Veteran denied suicidal or homicidal ideation. The Veteran underwent another VA examination in July 2019. He reported that he typically kept busy during the day but that his "demons come out in the evening." He reported an overall worsening in symptoms to the examiner, and the examiner noted the following symptoms: depressed mood; anxiety; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was also irritable and had hypervigilance. The examiner opined that the Veteran's symptoms 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, self-care, and conversation. During his Board hearing in February 2021, the Veteran testified that he loses patience with his wife and other people around him, occasionally feels like he is back in Vietnam, has sleeping problems, and often feels jumpy and on edge. He also described feeling hypervigilant and uneasy in crowds. The Veteran also stated that he has not been employed since 2011, but that he worries that he would lose his temper if he were still working. He stated that he had contact with his adult children. The Veteran underwent another VA examination in September 2022. He reported an "out of body" feeling during flashbacks, during which he is angry and frightening to his wife. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; and obsessional rituals which interfere with routine activities. The examiner opined that the Veteran's symptoms cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Veteran has attended VA group counseling sessions regularly throughout the rating period on appeal, with some interruptions caused by the COVID-19 pandemic. The Board has reviewed records for these group sessions, as well as the Veteran's other VA medical records and finds that they do not depict symptoms worse than those described in the VA examinations. The group records contain limited findings specific to the Veteran but show that he was no psychotic and that he denied suicidal and homicidal ideation. It was indicated that he benefitted from the group discussions. After considering the evidence, the Board finds that a rating in excess of 50 percent is not warranted for the period prior to July 23, 2019, and a rating in excess of 70 percent is not warranted for the period beginning July 23, 2019, for the Veteran's PTSD. Prior to July 23, 2019, the evidence persuasively weighs against finding that the Veteran's PTSD symptoms caused worse than occupational and social impairment with reduced reliability and productivity. Further, his symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment noted at the May 2017 examination are not consistent with a rating in excess of 50 percent. The Veteran reported good family and friend relationships to the May 2017 examiner, and the behavioral observations from that examination were essentially normal. The Board has also reviewed relevant medical records, including VA group mental health counseling notes throughout the period prior to July 23, 2019, and finds that they do not document a higher degree of social and occupational impairment, any symptoms consistent with a 70 percent or 100 percent rating for PTSD, or any symptoms of a similar severity, frequency, or duration. In addition, there is no indication of a worsening of symptoms during the period between the May 2017 and July 2019 VA examinations to warrant a 70 percent rating prior to the July 2019 examination date. Therefore, the evidence persuasively weighs against finding that the Veteran's PTSD was productive of worse than occupational and social impairment with reduced reliability and productivity due to symptoms such as depressed mood, anxiety, suspiciousness, and chronic sleep impairment prior to July 23, 2019, and a disability rating in excess of 50 percent is not warranted for that period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411. For the period beginning July 23, 2019, the evidence persuasively weighs against finding that the Veteran's PTSD symptoms have been productive of total occupational and social impairment. The Board notes that the Veteran has been unemployed and is in receipt of a TDIU throughout the period, indicative of total occupational impairment, but the evidence does not show total social impairment. Although the Veteran has reported some problems with anger and irritability toward his wife, he has remained married throughout the period and reported that he has maintained relationships with his adult children at his February 2021 hearing. In addition, the Veteran has attended VA group counseling regularly (with some interruptions due to COVID-19) throughout the period on appeal, indicating at least some ability to function adequately in a social group setting. Further, the evidence of record, including the July 2019 and September 2022 VA examinations, the Veteran's hearing testimony, and his VA treatment records, does not show total social impairment, any of the symptoms listed in the criteria for a 100 percent rating or any other symptoms of a similar severity, frequency, or duration. Therefore, the criteria for a 100 percent rating have not been met for the period beginning July 23, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411. In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; see Lynch, 21 F.4th at 781; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to July 23, 2019 is remanded. An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a). In such cases, the rating authority must refer the matter to the Director, Compensation Service, for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). The RO granted entitlement to a TDIU, effective July 23, 2019, in a September 2022 rating decision. However, the Veteran has been unemployed throughout the rating period on appeal, and he attributes his unemployment to his service-connected PTSD. Therefore, the issue of entitlement to a TDIU prior to July 23, 2019 has been reasonably raised by the record as part of the Veteran's claim for an increased PTSD rating. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Prior to July 23, 2019, the Veteran is in receipt of a 50 percent rating for PTSD and noncompensable ratings for facial and right leg scars. Thus, he does not meet the schedular criteria for a TDIU award. However, TDIU may still be granted on an extraschedular basis. The Director, Compensation Service has not yet considered whether an extraschedular TDIU is warranted prior to July 23, 2019. Therefore, this matter must be submitted for extraschedular consideration. 38 C.F.R. § 4.16(b). (Continued on the next page) ? The matter is REMANDED for the following action: Submit the Veteran's claim to the Director, Compensation Service, for extraschedular consideration of a total disability rating based on individual unemployability (TDIU) award for the period prior to July 23, 2019. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.