Citation Nr: 18160468
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 17-00 351
DATE:	December 27, 2018
ORDER
Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to August 4, 2017 is denied.
Entitlement to a disability rating in excess of 70 percent for PTSD from August 4, 2017 is denied.
FINDINGS OF FACT
1. For the period prior to August 4, 2017, the Veteran’s PTSD more nearly approximates occupational and social impairment consistent with a 30 percent disability rating.
2. For the period from August 4, 2017, the Veteran’s PTSD more nearly approximates occupational and social impairment consistent with a 70 percent disability rating.  
CONCLUSIONS OF LAW
1. Prior to August 4, 2017, the criteria for an initial rating in excess of 30 percent for PTSD had not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018).
2. From August 4, 2017, the criteria for a disability rating in excess of 70 percent have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1968 to February 1970, November 1990 to August 1991, from June 2004 to August 2005.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a U.S. Department of Veterans Affairs (VA) regional office.
The claim for a higher initial rating
The Veteran filed an original claim of service connection for PTSD on July 21, 2015.  In the January 2016 rating decision on appeal, the RO granted the claim and assigned a 30 percent disability rating.  The Veteran appealed the assigned rating to the Board.  During the pendency of the appeal, the RO increased the assigned rating to 70 percent, effective August 4, 2017.  In the decision below, the Board will address whether a rating in excess of 30 percent was warranted from July 21, 2015 to August 4, 2017, and whether a rating in excess of 70 percent was warranted afterward.  See Fenderson v. West, 12 Vet. App. 119 (1999).
Law and Regulations 
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.   Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018).  Where there is a question as to which of the 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.  See 38 C.F.R. § 4.7. 
PTSD is rated under the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130, Diagnostic Code 9411.  
A 30 percent disability rating is warranted under DC 9411 for 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, mild memory loss (such as forgetting names, directions, recent events). 
A 50 percent disability rating is warranted 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 (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 disability rating is warranted 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 worklike setting); and inability to establish and maintain effective relationships. 
Finally, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must weigh against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54).
Analysis
At a VA examination In October 2015, the Veteran reported that he was currently married for 44 years and that he enjoyed watching football on TV with his friends. The Veteran stated that he retired from the Railroad after 30 years of gainful employment.  The examiner noted that the Veteran was diagnosed with PTSD and his symptoms were: depressed mood; anxiety; chronic sleep impairment; and mild memory loss, such as forgetting names, directions, or recent events.  The examiner also noted that the Veteran was friendly, cooperative during the examination, and maintained good eye contact with the examiner.
At an August 2017 VA examination the Veteran reported sleeping fairly well, taking good care of himself, and stepping out for a short time if he feels tension between him and his spouse.  He had been married for 46 years; reported playing cards once a week with friends; denied hypervigilance, being jumpy, depression, and suicidal ideation.  The Veteran’s spouse reported that the Veteran may have had disturbing dreams.  The examiner noted that the Veteran’s mood was euthymic, that the Veteran had a full range affect, and that the Veteran was pleasant and friendly.  Additionally, the examiner noted that the Veteran denied suicidal and homicidal ideations and that the examiner ensured the Veteran agreed to, and knew how to, seek help if he began to experience thoughts of self-harm or harm to others.  The examiner noted that the Veteran’s insights and judgment were intact.  The Veteran’s symptoms that were present at this exam were: anxiety, chronic sleep impairment, 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, and impaired impulse control, such as unprovoked irritability with periods of violence.
The VA treatment records dated throughout the appeal show stable mood, continued treatment for PTSD symptoms, a full range of affect, logical thought processes, clean appearance, no hallucinations, and normal judgment.  Throughout the Veteran’s treatment history he denied any suicidal ideation, or thoughts of self-harm or harming others.
In July 2018 the Veteran’s Veteran Service Organization (VSO) submitted a brief where they state that the Veteran told the August 2017 examiner that he has homicidal ideations as well as difficulty establishing and maintaining effective work and social relationships.  As noted above, the August 2017 VA examiner specifically noted that the Veteran denied homicidal ideation, and that the examiner specifically made sure the Veteran knew to seek help if he ever began to feel suicidal/homicidal ideation.  Additionally, as noted above, throughout the entire record there is no evidence that the Veteran reported homicidal ideation at any point.  There is no evidence that the Veteran exhibited homicidal ideation, no evidence that he has acted on such impulses, and no evidence that he has been determined to be a persistent danger to himself or others.
The evidence indicates that the Veteran’s level of occupational and social impairment caused by PTSD has differed during the period of this appeal.  Thus, a staged rating is appropriate for this claim.  See Fenderson, supra.  The Board has carefully reviewed the entire record and determined that for the initial period from the award of service connection through August 4, 2017, a disability rating in excess of 30 percent is not warranted.  Further, since August 4, 2017 a rating in excess of 70 percent has been unwarranted.    
A disability rating in excess of 30 percent is not warranted prior to August 4, 2017.  During this period the Veteran reported difficulties with sleeping, memory, and anxiety, but these symptoms were not severe enough to significantly interfere with the Veteran’s occupational and social functioning.  A 50 percent rating is not warranted for this period because the Veteran did not experience symptoms such as: flattened affect; circumstantial, circulatory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.  Neither did the Veteran’s symptoms cause occupational and social impairment with reduced reliability.  Accordingly, for the period prior to August 4, 2017, a rating in excess of 30 percent is denied.
From August 4, 2017, a 100 percent rating has been unwarranted.  The August 2017 VA report shows the Veteran had worsening symptoms of anxiety, chronic sleep impairment, 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, and impaired impulse control, such as unprovoked irritability with periods of violence.  As such, from August 4, 2017, the 70 percent rating had been warranted.  However, the report did not indicate total impairment caused by PTSD.  As discussed above, there is no evidence of delusions, hallucinations, grossly inappropriate behavior, or suicidal or homicidal ideations.  Further, the Veteran’s mental status examinations indicated that he has been fully oriented to person, place and time throughout the period of the claim.  The evidence has generally shown that he has had impaired but intact memory, intact judgment, and the capacity for insight.  In short, despite the Veteran’s symptoms, he has not exhibited the type of emotional and cognitive impairment reserved for a total rating.  38 C.F.R. § 4.130, DC 9411.  Moreover, the August 2017 VA examiner did not conclude that the Veteran’s PTSD symptoms were productive of total occupational and social impairment.  
Based on the foregoing, the Board determines that a “staged” disability rating for the Veteran’s PTSD has been warranted.  For the period prior to August 4, 2017, a 30 percent rating was warranted.  Starting August 4, 2017, a 70 percent rating has been warranted.  However, the preponderance of the evidence is against the assignment of a higher rating here.  38 C.F.R. § 3.102.  
 
CHRISTOPHER MCENTEE
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Gresham 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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