Citation Nr: 25006458 Decision Date: 05/13/25 Archive Date: 05/13/25 DOCKET NO. 20-22 495 DATE: May 13, 2025 ORDER Prior to July 11, 2017, entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder ("PTSD") is denied. FINDING OF FACT Prior to July 11, 2017, the Veteran's PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity due to such symptoms as anxiety, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships; the psychiatric disability is not manifested by occupational and social impairment with deficiencies in most areas, or by total occupational and social impairment. CONCLUSION OF LAW Prior to July 11, 2017, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 9411.? REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 2001 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in February 2024, the Board adjudicated the claim on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Joint Motion for Partial Remand ("JMPR") in January 2025 and partially vacated and remanded the February 2024 Board decision. The issue is once again before the Board. The Board observes that additional treatment records were received following the last adjudication by the RO in the April 2020 statement of the case. In December 2023, the RO notified the Veteran that additional evidence was received after his April 2020 statement of the case and inquired whether he wished to waive RO consideration of the new evidence. In January 2024, the Veteran waived his right to have his case remanded back to the agency of original jurisdiction and requested that the Board proceed with adjudicating the claim. See January 2024 Third Party Correspondence. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38?C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38?U.S.C. §?1155; 38?C.F.R. §§?3.321, 4.1.? In evaluating the severity of a particular disability, it is essential to consider its history. 38?C.F.R. §?4.1; Peyton v. Derwinski, 1?Vet. App.?282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7?Vet. App.?55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21?Vet. App.?505, 509 (2007); see also Fenderson v. West, 12?Vet. App.?119, 126 (1999). This practice is known as staged ratings.? Prior to July 11, 2017, entitlement to a rating in excess of 50 percent for service-connected PTSD is denied. 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. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. 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. Id.? The Veteran's PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). 38?C.F.R. §?4.130, Diagnostic Code 9411. Under the General 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 a 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; 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); and inability to establish and maintain effective relationships. Id.? 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 or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name. Id.? The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16?Vet. App.?436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117.? As an initial matter, the Board notes that the Veteran filed an increased ratings claim in July 2017 for service-connected PTSD. The Veteran argued that he is entitled to an earlier effective date prior to July 2017 for his 70 percent rating for PTSD as his entitlement to that increased rating was ascertainable within a year prior to filing his claim. Specifically, the Veteran cited to a February 2019 medical evidence wherein a therapist determined that a December 2016 work related incident triggered a worsening of his mental health symptoms which lead him to stop working in March 2017. See May 2020 Medical Treatment Record - Government Facility. The Board notes that there are very little medical records in 2016. However, there are a substantial number of records in 2017. In a February 2017 VA treatment record, he endorsed having anger, stress, and irritability. See November 2017 CAPRI. On examination, he was casually dressed. He had normo productive speech, and grossly intact language. His thought process was linear and logical. He had no evidence of psychosis. He had good insight and judgment. His concentration was grossly intact. His recent and remote memory was intact. He denied having suicidal or homicidal ideation. The findings from the February 2017 mental status examination remained essentially unchanged in March 2017 and April 2017. On May 1, 2017, he was noted to be fully oriented and casually dressed. He had non pressured normo productive speech. His language was grossly intact. He had linear and logical thought process. There was no evidence of a psychosis. He had fair insight and judgment. There were no apparent deficits in his ability to maintain attention. His concentration was grossly intact and his recent and remote memory were grossly intact as well. However, on May 2, 2017, he endorsed having vague suicidal ideation without plan or intent as he ruminated on his loss of a son, loss of his marriage, and feeling unsupported by his coworkers and managers. Then, on May 17, 2017, he denied having suicidal or homicidal ideation. He also denied having obsessive or compulsive behavior, hallucination, and delusion. He was well groomed and friendly with fluent speech. His thought process was logical, and goal directed. His remote and recent memory were satisfactory. His judgement, concentration, and insight were satisfactory as well. His mental status remained essentially the same as noted in a June 2017 VA treatment record. The Board acknowledges the Veteran's request to consider a November 2017 VA treatment record in determining the severity of his PTSD prior to July 11, 2017. In the November 2017 VA treatment record, a psychologist provided a brief timeline of certain medical events regarding the Veteran's PTSD. In particular, the psychologist noted that in November 2016, he endorsed having feelings of irritability and anxiety. He denied having panic attacks. He enjoyed his job, and his job allowed him to focus and concentrate on other things besides his trauma. In February 2017, his dose of Zoloft was increased due to continued irritability and anxiety. In March 2017, he was "briefly hospitalized." However, the treatment records show that he was not hospitalized as an in-patient. In May 2017, he endorsed having anger and irritability. The Board notes that the Veteran argued that he is entitled to a 70 percent rating prior to July 11, 2017. The Board disagrees. The Veteran filed an intent to file a claim on July 11, 2017. The Board has reviewed the treatment records a year prior to the application date and finds that the treatment records do not reflect findings consistent with a 70 percent rating. The Board acknowledges the February 2019 medical assessment wherein a therapist determined that a December 2016 work related incident triggered a worsening of his mental health symptoms which lead him to stop working in March 2017. The Board affords little to no probative value to this determination as the therapist did not explain how his condition worsened. Moreover, the therapist did not state nor explain whether the increase in severity is equivalent to a 70 percent rating or just worsening of symptoms still consistent with a 50 percent rating. As noted above, he was predominantly casually dressed and appropriately groomed. His speech and language were within normal limits. His thinking was linear and goal oriented. No psychosis was reported or observed. His insight and judgment were good. His attention, concentration, and memory were within normal limits. He denied having current suicidal and homicidal ideation. He reported a one-time vague suicidal ideation without plan or intent. However, considering the frequency, severity, and duration of his suicidal ideation, the Board finds that a one-time endorsement in which the Veteran stated that his desire to be present in his children's lives prevents him from taking his life does not more nearly approximate a 70 percent rating. Moreover, the records also show that the September 2017 and March 2020 VA examiner noted that the Veteran's endorsements may be exaggerated. As such, the Board is unable to afford probative value to the Veteran's claim that his symptoms were consistent with a rating in excess of 50 percent prior to July 11, 2017. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain); see also Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Veteran's PTSD does not meet or more nearly approximate the criteria for a rating in excess of 50 percent prior to July 11, 2017 as the records show that there is no evidence of symptoms commensurate with a 70 percent disability rating to include 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); and inability to establish and maintain effective relationships. Importantly, occupational and social impairment with deficiencies in most areas has not been shown. As such, the Board finds that predominantly, the Veteran's PTSD is consistent with a 50 percent rating for the period on appeal. The claim is therefore denied.? Christopher Seppanen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh 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.