Citation Nr: 24005474 Decision Date: 02/02/24 Archive Date: 02/02/24 DOCKET NO. 14-35 154A DATE: February 2, 2024 ORDER From September 12, 2011, to March 23, 2020, entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with anxiety disorder, not otherwise specified, with an adjustment disorder with depressed and anxious mood (hereinafter, "PTSD"), is denied. From March 23, 2020, entitlement to a 70 percent rating for PTSD is granted. FINDINGS OF FACT 1. From September 12, 2011, to March 23, 2020, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity. 2. From March 23, 2020, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, but not by total occupational and total social impairment. CONCLUSIONS OF LAW 1. From September 12, 2011, to March 23, 2020, the criteria for a rating in excess of 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From March 23, 2020, the criteria for a 70 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2003 to June 2003 and from October 2004 to May 2007. The appeal comes to the Board of Veterans' Appeals (Board) from a March 2012 rating decision. In June 2018, the Board remanded the claim. In April 2020, the Board denied entitlement to a rating in excess of 50 percent for PTSD. In October 2020, a rating decision increased the rating for PTSD to 70 percent disabling, effective August 7, 2020. The Veteran appealed the April 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR), vacating and remanding that part of the April 2020 Board decision that denied a rating in excess of 50 percent for PTSD. The Board thereafter remanded the claim in July 2021, and a March 2022 Board decision denied entitlement to a rating in excess of 50 percent prior to August 7, 2020, and in excess of 70 percent thereafter. The Veteran appealed the March 2022 Board decision to the Court. In January 2023, the Court issued an Order granting a JMPR, vacating and remanding that part of the March 2022 Board decision that denied entitlement to a rating in excess of 50 percent prior to August 7, 2020, for PTSD. The Veteran did not appeal that portion of the decision that denied entitlement to a rating greater than 70 percent from that date. In May 2023, the Board remanded the claim for a medical opinion. The appeal now returns to the Board for adjudication. The Board will therefore address the issue of whether a rating in excess of 50 percent is warranted for the Veteran's service-connected PTSD prior to August 7, 2020. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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 benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A 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). 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). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher prior to August 7, 2020. In this case, the Board concludes that the 70 percent rating made effective as of August 7, 2020, should be made effective as of March 23, 2020, the date VA received a statement from the Veteran indicating that his PTSD symptoms had worsened. In the March 2020 statement, the Veteran asserted that he experienced the following symptoms associated with his service-connected PTSD: anger; anxiety; chronic sleep problems; depression; difficulty making decision; emotional numbing; flashbacks; inability to make and keep friends; intrusive thoughts; isolation; lack of self-esteem; panic attacks; problems with communication; suspiciousness; and inability to share feelings. Because the Veteran subsequently underwent an examination August 2020, where he endorsed similar symptoms that served as the basis for an increase to 70 percent, the Board will resolve all doubt in the Veteran's favor and find that the 70 percent rating that was made effective August 7, 2020, should be assigned as of March 23, 2020. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (where the Court noted that "an effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date the Veteran's disability first manifested.") Prior to March 23, 2020, however, the Board concludes that a rating in excess of 50 percent is not warranted. At a March 2012 VA PTSD examination, the examiner summarized the Veteran's level of impairment due to his PTSD as that of occupational and social impairment with reduced reliability and productivity. He endorsed the following symptoms associated with a 30 percent rating-depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often; chronic sleep impairment; and mild memory loss; the following symptoms associated with a 50 percent rating-flattened affect, disturbances of motivation and mood; and the following symptom associated with a 70 percent rating-difficulty in adapting to stressful circumstances, including work or a work-like setting. He also endorsed symptoms not listed with a specific rating, such as avoidance; feeling distant and cut off from others; feeling emotionally numb or unable to have loving feelings; irritability or angry outbursts; difficulty concentrating; hyper-alertness; and feeling jumpy or easily started. The Veteran reported that he had a good relationship with his girlfriend, though his PTSD issues caused some strain, and that while he had some friends, he felt like he socially separated himself. He noted some withdrawal from family relationships with less frequent visits to his father. He reported that he had recently quit his job to attend graduate courses full time and was currently enrolled in a business program. At a July 2017 VA treatment appointment, the Veteran noted a history of PTSD with nightmares and anxiety. He stated that at the present he was coping well and declined a mental health consultation. He denied any loss of interest in activities and denied having depression. An October 2018 VA treatment note reflects a negative PTSD screen. The Veteran denied any PTSD symptoms. At an April 2019 VA PTSD examination, the examiner summarized the Veteran's level of impairment as that of a mental condition formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. He endorsed the following symptoms associated with a 30 percent rating-depressed mood, anxiety, suspiciousness, and sleep impairment. He reported that he was married and had a good relationship with his wife. He reported activities such as repair and maintenance of his house, travel, and attending church. He reported good relationships with his family and friends. He told the examiner that since his last examination he had earned an MBA and worked as a software application engineer for a large company. He denied any occupational problems. As noted above, in March 2020, the Veteran submitted a statement indicating that he experienced anger; anxiety; chronic sleep problems; depression; difficulty making decisions; emotional numbing; flashbacks; inability to make and keep friends; intrusive thoughts; isolation/lack of emotions; lack of self-esteem; panic attacks; problems with communication; suspiciousness; and an inability to share feelings. The Board finds that the severity, frequency, and duration of the Veteran's unlisted symptoms for the time period prior to March 23, 2020, more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Indeed, unlisted symptoms endorsed by the Veteran included: avoidance; feeling distant and cut off from others; emotional numbness, irritability and anger; difficulty concentrating; difficulty making decisions; hyper-alertness; and feeling jumpy or easily startled. The Board finds that these symptoms are similar to the listed symptoms of suspiciousness, impaired judgment, disturbances in motivation and mood-which are contemplated by the assigned 50 percent rating. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA treatment records and the March 2012 and April 2019 VA examinations indicate that the Veteran was cooperative and appropriate, with appropriate grooming and hygiene, good eye contact, full orientation, normal speech, and intact attention, concentration, and memory. At his March 2012 VA examination, he reported that he was set to begin a graduate program; at his April 2019 VA examination, he reported that he had earned a graduate degree and was working as a software engineer. He denied any occupational problems and said he worked full-time. With regards to social impairment, at the April 2019 VA examination, the Veteran reported a recent marriage and a great relationship with his spouse. He was looking forward to upcoming travel. He reported good relationships with family and friends. While the Veteran did experience one symptom contemplated by a 70 percent rating-including difficulty in adapting to stressful circumstances-the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 or a 50 percent rating. Further, the overwhelming majority of the evidence prior to March 23, 2020, does not show that the Veteran experienced occupational and social impairment with deficiencies in most areas. The Board further notes that there is nothing in the record suggesting that the Veteran had suicidal ideation, obsessional rituals, illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or difficulty adapting to stressful circumstances. As noted above, although the Veteran endorsed a single symptom associated with a 70 percent rating during the time period prior to March 23, 2020, the Board does not find that the single symptom warrants a higher rating for that time period. The Board adds that a retrospective opinion was obtained by VA in June 2023. Therein, a VA examiner reviewed the relevant evidence and made the following findings: from 2011 to March 2012, the Veteran was not impaired in his ability to use judgment, show insight, and think abstractly, was not impaired in his ability to work in public, and was not impaired in his ability to work in a loosely supervised situation. He was mildly impaired in his ability to communicate, remember and follow instructions; his ability to interact appropriate with coworkers and customers; and his ability to concentrate. He was mildly to moderately impaired in his ability to adapt to changes and stress and in his ability to maintain appropriate pace at work. From March 2012 to April 2019, the examiner made the following findings based on a retrospective review of the evidence: the Veteran was not impaired in his ability to communicate, remember and follow instructions, use judgment, show insight, and think abstractly, interact appropriately with coworkers and customers, concentrate, adapt to changes and stress, maintain appropriate pace at work, work in public, or work in a loosely supervised situation. From April 2019 to August 2020, the examiner made the following findings based on a retrospective review of the evidence: the Veteran was not impaired in his ability to use judgment, show insight, think abstractly, or work in a loosely supervised situation. He was mildly impaired in his ability to communicate, remember, and follow instructions, or interact appropriately with coworkers and customers. He was mildly to moderately impaired in his ability to maintain appropriate pace at work and work in public. He was moderately impaired in his ability to adapt to changes and stress. He was moderately to severely impaired in his ability to concentrate. The Board finds that the June 2023 VA retrospective opinion is in line with the findings made herein. The opinion provider did not suggest that the Veteran had occupational or social impairment with deficiencies in most areas. The worst symptom noted was moderate to severe impairment in the ability to concentrate,which is similar to the symptom of impairment of short-term memory (forgetting to complete tasks), which is associated with a 50 percent rating. In sum, the Board finds that the 70 percent rating currently in effect as of August 7, 2020, should be made effective as of March 23, 2020. Prior to March 23, 2020, the evidence of record is against the assignment of a rating in excess of 50 percent for the Veteran's PTSD. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.