Citation Nr: 1745518 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 11-05 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1969 to September 1972, including combat service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In September 2016, following an August 2015 remand, the Board denied a rating in excess of 50 percent for the Veteran's PTSD. The Veteran appealed the Board's September 2016 decision to the United States Court of Appeals for Veterans Claims (Court), which, in a June 2017 order, granted the parties' Joint Motion for Remand (Joint Motion), vacating the Board's decision and remanding the case for compliance with the terms of the Joint Motion. FINDING OF FACT Throughout the appeal period the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for PTSD are met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.10, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks a rating in excess of 50 percent for PTSD. A. Applicable Law Disability evaluations are determined by application of a schedule of ratings based on the average impairment of earning capacity resulting from a service-connected disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran's PTSD is evaluated under diagnostic code 9411, which provides the following ratings for psychiatric disabilities: 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; difficulty in establishing and maintaining effective work and social relationships, is given a 50 percent rating. 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); inability to establish and maintain effective relationships, is assigned a 70 percent rating. 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; memory loss for names of close relatives, own occupation, or own name, is assigned a 100 percent rating. 38 C.F.R. § 4.130. When evaluating mental disorders the Board considers the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission and assigns an evaluation based on all the evidence of record that bears on the Veteran's occupational and social impairment. 38 C.F.R. § 4.126. While the Board will consider the extent of social impairment, it shall not assign an evaluation solely based on social impairment. Id. B. Analysis and Findings In the June 2017 Joint Motion, the parties determined only that the Board erred by not addressing the April 2010 VA examination report in its decision. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). Here, the Veteran underwent a VA examination in April 2010, reporting difficulties with bosses and coworkers that led to losing previous jobs. The Veteran stated that his social interactions were frequently inappropriate, but noted a few positive relationships and friends. He stated that he did not socialize, as he was busy taking care of his mother. He reported being previously married for thirteen years, and having three children but only maintaining contact with two. He reported no romantic relationships since the late 1990s and having no hobbies. Mental status examination revealed unimpaired communication, no evidence of delusions or hallucinations, goal-directed thought processes, and no suicidal or homicidal ideation. The examiner assigned a Global Assessment of Function (GAF) score of 65, reflective of mild symptoms. However, poor impulse control, poor insight, and moderately impaired judgment were endorsed at that time. Moreover, VA treatment records dated during the appeal period demonstrate the presence of "chronic passive suicidal ideation" and an isolated notation of homicidal thoughts. See April 2010, May 2013, June 2013 VA treatment records. The Court recently held "the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). In light of Bankhead and the other evidence of record, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's psychiatric symptoms have resulted in occupational and social impairment with deficiencies in most areas, warranting a 70 percent rating for the entire appeal period. The Veteran's symptoms do no result in total occupational and social impairment necessary for assignment of a 100 percent rating. In this regard, the Veteran's danger of hurting himself or others is not persistent, as it has only been noted three times during the seven-year appeal period. Nor is there any evidence in the record of gross impairment in thought processes or communication; persistent hallucinations or delusions; grossly inappropriate behavior; disorientation to time or place; memory loss for own occupation, or own name, or other symptoms of similar severity, frequency and duration, and the parties to the Joint Motion do not assert otherwise. See Harris, supra. ORDER An initial rating of 70 percent for PTSD is granted for the entire appeal period. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs