POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, a U.S. Army veteran who served from December 1987 to July 1991, appeals the denial of an increased disability rating for posttraumatic stress disorder (PTSD) prior to December 10, 2018. The veteran initially filed a claim for PTSD on July 16, 2010, which was granted with a 50 percent rating. However, the veteran withdrew his appeal of that rating in October 2012. He subsequently filed an increased rating claim on November 14, 2017. The Board reviewed evidence including the veteran's testimony from a January 2022 hearing, treatment records, and a December 2018 VA examination. The VA examiner diagnosed PTSD, major depressive disorder, and alcohol use disorder, noting symptoms such as flattened affect, tangential speech, suicidal ideation, and difficulty adapting to stressful circumstances. The Board found that the evidence supported a 70 percent rating for PTSD, citing symptoms like speech intermittently illogical and difficulty adapting to stressful circumstances, which align with the criteria for that rating. However, the Board determined that a rating higher than 70 percent was not warranted for the period prior to December 10, 2018, as the veteran did not exhibit gross impairment in thought processes, persistent delusions, or total occupational and social impairment, and he maintained full-time employment as a housekeeper. The Board granted a 70 percent rating for PTSD from November 14, 2017, to December 10, 2018.

Rationale

Evidence supports 70 percent rating criteria; VA examiner opinion highly probative; Symptoms cause deficiencies, not total impairment

Full Decision Text

Citation Nr: 24025701
Decision Date: 07/10/24	Archive Date: 07/10/24

DOCKET NO. 20-08 819
DATE: July 10, 2024

ORDER

From November 14, 2017 (and no earlier), to December 10, 2018, a 70 percent disability rating (and no higher), for posttraumatic stress disorder (PTSD), chronic type, with major depression and alcohol and substance abuse in remission is granted.

FINDINGS OF FACT

1. In August 2011, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and awarded a 50 percent disability rating effective July 16, 2010.  The Veteran appealed the rating assigned in an August 2011 Notice of Disagreement, but he submitted a request to withdraw this appeal in October 2012.  

2. The Veteran filed an increased rating claim on November 14, 2017, and it is factually ascertainable that his PTSD more nearly approximated the criteria for a 70 percent disability rating with occupational and social impairment in most areas from November 14, 2017, to December 10, 2018.  

CONCLUSION OF LAW

From November 14, 2017 (and no earlier), to December 10, 2018, the criteria for the assignment of a 70 percent disability rating (and no higher), for PTSD have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.159, 3.400

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served in the U.S. Army from December 1987 to July 1991.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by the Department of Veterans Affairs (VA) AOJ which, in part, continued a 50 percent disability rating for service-connected PTSD.  The Veteran disagreed with this decision and perfected this appeal.

Thereafter, by rating decision dated in January 2020, the AOJ increased the Veteran's disability rating for PTSD from 50 to 100 percent disabling effective December 10, 2018.  As noted below, the Veteran's claim for a higher rating for his PTSD has been pending since November 2017.  As such, the issue of entitlement to a disability rating greater than 50 percent prior to December 10, 2018, remains on appeal.

The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge in January 2022.  A transcript of that proceeding is associated with the claims file.

Legal Criteria

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.? Separate diagnostic codes identify the various disabilities.? 38?U.S.C. §?1155; 38?C.F.R. §?4.1.?????? 

If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating.? Otherwise, the lower rating will be assigned.? 38?C.F.R. §?4.7.? Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.? 38?C.F.R. §?4.3.?????? 

A veteran's entire history is to be considered when assigning disability ratings.? 38?C.F.R. §?4.1; Schafrath v. Derwinski, 1?Vet. App.?589 (1995).? The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.? Fenderson v. West, 12?Vet. App.?119 (1999); Hart v. Mansfield, 21?Vet. App.?505 (2007).?? 

The Veteran's PTSD is rated under Diagnostic Code 9411, which is rated under the General Formula for evaluating disability from mental disorders.  Under the General Rating Formula, a 50 percent rating is assigned when a veteran's psychiatric disability causes 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-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract
 App.?119 (1999); Hart v. Mansfield, 21?Vet. App.?505 (2007).?? 

The Veteran's PTSD is rated under Diagnostic Code 9411, which is rated under the General Formula for evaluating disability from mental disorders.  Under the General Rating Formula, a 50 percent rating is assigned when a veteran's psychiatric disability causes 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-term 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.?38?C.F.R. §?4.130.??? 

A 70 percent evaluation is warranted when 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 work-like setting); and inability to establish and maintain effective relationships.?38?C.F.R. §?4.130.??? 

The maximum schedular rating of 100 percent is warranted when 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; and memory loss for names of close relatives, own occupation or own name.?38?C.F.R. §?4.130.??? 

In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths 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 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.  However, 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?on the basis of?social impairment.?38?C.F.R. §?4.126 (b).??? 

Symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects,?which?would justify a particular rating. Mauerhan v.?Principi, 16?Vet. App.?436, 442 (2002).  Accordingly, the evidence considered in determining the level of impairment under?38?C.F.R. §?4.130 is not restricted to the symptoms provided in the diagnostic code.  Id.  Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment.  Id.??

Analysis

The Veteran maintains that he is entitled to an increased rating for his PTSD prior to December 10, 2018.  He also maintains that he is entitled to an increased rating for his PTSD dating back to the date of his original claim, which is July 16, 2010.  Specifically, during the January 2022 Board hearing, he testified that the decision did not become final because he was never notified about it.  

While the claim on appeal has been developed as an increased rating claim, and not an earlier effective date claim, the assignment of a staged rating necessarily includes consideration of the law and regulations governing effective dates.  Whether addressed as a staged rating or an effective date, the result is the same.  The Board will first address the Veteran's contention that his claim has been pending since July 16, 2010.    

In assigning effective dates, the general rule is that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38?U.S.C. §?5110 (a); 38?
 a staged rating necessarily includes consideration of the law and regulations governing effective dates.  Whether addressed as a staged rating or an effective date, the result is the same.  The Board will first address the Veteran's contention that his claim has been pending since July 16, 2010.    

In assigning effective dates, the general rule is that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38?U.S.C. §?5110 (a); 38?C.F.R. §?3.400. 

For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date.? Otherwise, the effective date will be the date of receipt of claim.? 38?U.S.C. §?5110; 38?C.F.R. §?3.400 (o)(2).? In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation.? See Hazan v. Gober, 10?Vet. App.?511, 519 (1992).? Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires: (1) a determination of the date of the receipt of the claim and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521.

To determine the appropriate effective date, the Board must assess the date of claim and the date entitlement arose and select the later of those two dates. 

With respect to the date of claim, the Veteran filed a service connection claim for PTSD on July 16, 2010.  In August 2011, the AOJ granted service connection and assigned a 50 percent disability rating effective July 16, 2010.  The Veteran appealed this rating in an August 2011 Notice of Disagreement.  However, the Veteran submitted a request to withdraw his appeal for PTSD in an October 2012 Statement in Support of Claim.  

The Board notes that a written withdrawal of a claim must be in writing and include (1) the name of the Veteran or the name of the claimant or appellant if other than the Veteran, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. 38 C.F.R. §§ 19.55(b)(1).  The Veteran's written request satisfies all of these elements.  As such, the Board finds that his initial increased rating claim was effectively withdrawn and is no longer pending, and it cannot be the date of claim.  

Next, the Veteran filed an increased rating claim for PTSD on November 14, 2017.  In January 2018, the AOJ denied the Veteran's claim and continued his 50 percent rating for PTSD.  In June 2018, the Veteran filed a timely notice of disagreement.  In January 2020, the AOJ granted the Veteran's claim in part by assigning a 100 percent disability rating effective December 10, 2018.  The AOJ issued a statement of the case (SOC) for the period prior to December 10, 2018, and the Veteran filed a timely VA Form 9 in February 2020.  Based on the foregoing, the Board finds that the date of claim is November 14, 2017.

Next, the Board must determine when an increase in disability was factually ascertainable.  For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date.  Otherwise, the effective date will be the date of receipt of claim. 38?U.S.C. §?5110; 38?C.F.R. §?3.400 (o)(2).  In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10?Vet. App.?511, 519 (1992).  

In order for the effective date to be earlier than the date of claim, November 14, 2017, the Board increase in disability must have been factually ascertainable within the year prior, or between November 14, 2016, and November 
 the effective date will be the date of receipt of claim. 38?U.S.C. §?5110; 38?C.F.R. §?3.400 (o)(2).  In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10?Vet. App.?511, 519 (1992).  

In order for the effective date to be earlier than the date of claim, November 14, 2017, the Board increase in disability must have been factually ascertainable within the year prior, or between November 14, 2016, and November 14, 2017.  If the increase in disability was ascertainable prior to November 14, 2016, then the effective date is the date of claim. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (for an award of an effective date one year prior to the date of an increased rating claim, the claim must have been filed within one year of when the increase was factually ascertainable, if the claim was filed more than one year after that date, the provision for the one year earlier date does not apply).

Here, the Board finds that an increased rating was not factually ascertainable from November 14, 2016 to November 14, 2017.  In reaching this conclusion, the Board notes that the Veteran did not engage in any mental health treatment during this period.  There is also no evidence on record that his PTSD symptoms rose to the level of severity contemplated in the criteria for a 70 or 100 percent rating during this period.  

However, the Board finds that a higher rating was ascertainable as of the date that the Veteran filed his claim, as it is reasonable to conclude that the Veteran did so due to worsening symptoms.  Furthermore, medical records and the Veteran's testimony support a finding that a 70 percent rating, but no higher, is warranted for the period from November 14, 2017, to December 10, 2018.  

In reaching this conclusion, the Board notes that the Veteran did not engage in much treatment during this period.  However, he did report for care in January 2018.  At this time, he reported increased levels of distress from difficulties at work and a long-standing pattern of interpersonal relationship problems.  With respect to his mental status, the Veteran exhibited emotional lability, a dysthymic and irritable mood, and argumentative demeanor.  His thought process and content were tangential, illogical, and overinclusive of detail.  Otherwise, reality testing was intact, and no perceptual disturbances were reported.  He was able to recount personal history and respond appropriately to questions asked.  He did not exhibit any memory difficulty.  He denied having suicidal or homicidal ideation.  He was oriented in all spheres, and he displayed appropriate eye contact.  

There is no other mental health treatment on record in 2018.  However, the Veteran was provided a VA examination in December 2018 to assess the nature and severity of his PTSD.  The examiner provided diagnoses of PTSD, major depressive disorder, and alcohol use disorder.  Symptoms noted at this time included the following:  depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect., circumstantial, circular locomotory, or stereotyped speech, speech intermittently illogical, obscure, or relevant, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, persistent delusions or hallucinations, grossly inappropriate behavior, neglect of personal experience and hygiene, and disorientation to time or place.  Ultimately, the examiner concluded that the Veteran has occupational and social impairment in most areas.

With respect to his social functioning, the Veteran reported that he has very little interaction with others.  However, he indicated that he was living with his stepmother and a younger sister.  He further reported that the situation is stressful as they are all supposed to contribute to household expenses.  With respect to his occupational functioning, the Veteran reported that he has worked fulltime for VA in the housekeeping department for the past five years.  With respect to his mental status, the Veteran was disheveled with body odor.  He was agitated and confrontational.  He exhibited a flat affect, and he endorsed suicidal ideation.  

In addition to this evidence, the Veteran testified at his hearing in January 2022 that he has been working fulltime for the past 7 years as a housekeeper for VA.  However
.  However, he indicated that he was living with his stepmother and a younger sister.  He further reported that the situation is stressful as they are all supposed to contribute to household expenses.  With respect to his occupational functioning, the Veteran reported that he has worked fulltime for VA in the housekeeping department for the past five years.  With respect to his mental status, the Veteran was disheveled with body odor.  He was agitated and confrontational.  He exhibited a flat affect, and he endorsed suicidal ideation.  

In addition to this evidence, the Veteran testified at his hearing in January 2022 that he has been working fulltime for the past 7 years as a housekeeper for VA.  However, he indicated that working to maintain employment has been overwhelming at times.  He also reported that he does not socialize with other people outside of his family.  

Based on this evidence, it is reasonable to conclude that the Veteran experienced speech intermittently illogical, obscure, or irrelevant, difficulty in adapting to stressful circumstances (including work or a worklike setting), and inability to establish and maintain effective relationships, which are symptoms contemplated in the 70 percent rating criteria.  As such, the December 2018 VA examiner's opinion that the Veteran has occupational and social impairment in most areas is highly probative.  

However, the Board also finds that a rating greater than?70 percent is not warranted for the period prior to December 10, 2018.?  Prior to the VA examination, there is no evidence on record that the Veteran experienced?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, or disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name.? In fact, the Veteran's mental status was normal with respect to orientation and memory during the January 2018 treatment visit, and he did not endorse any perceptual disturbances.  

Additionally, the Veteran's symptoms do not equate in severity, frequency, and duration to cause total social and occupational impairment.  In reaching this conclusion, the Board notes that the Veteran has worked on a fulltime basis throughout the entire appeal period.  Thus, while the Veteran's symptoms cause deficiencies, they do not cause total social and occupational impairment.  Accordingly, the Board finds that a rating in excess of 70 percent for the period prior to December 10, 2018, is not warranted.  

In sum, the Board finds that from November 14, 2017 (and no earlier), to December 10, 2018, the criteria for the assignment of a 70 percent disability rating (and no higher), for PTSD have been met.

 

APRIL MADDOX

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Beech, Tara M. (she/her/hers)

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.