Citation Nr: 18140640 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 14-07 690 DATE: October 3, 2018 ORDER Entitlement to an initial rating of 70 percent for posttraumatic stress disorder (PTSD) from June 30, 2011 to March 20, 2016 is granted. Entitlement to a rating in excess of 70 percent for PTSD from March 21, 2016 to March 13, 2017 is denied. FINDINGS OF FACT 1. From June 30, 2011 to March 20, 2016, the Veteran’s PTSD was manifested by symptoms including deficiencies in most areas, such as trouble at work, failed marriages and trouble friendships, avoiding activities, difficulty sleeping, irritability, anger outbursts, difficulty concentrating, hypervigilance, and suicidal ideation; giving the Veteran the benefit of the doubt, these symptoms more nearly approximated the degree of occupational and social impairment contemplated by a 70 percent schedular rating. 2. From March 21, 2016 to March 13, 2017, the Veteran’s PTSD was manifested by symptoms including re-experiencing traumatic events, intrusive and upsetting memories, flashbacks, nightmares, feelings of intense distress, avoidance, loss of interest in activities, increased anxiety, irritability, and difficulty sleeping; these symptoms more nearly approximated the degree of occupational and social impairment contemplated by a 70 percent schedular rating. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for the Veteran’s PTSD from June 30, 2011 to March 20, 2016 have been met. 38 U.S.C. §§ 1110, 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for a disability rating in excess of 70 percent for the Veteran’s PTSD from March 21, 2016 to March 13, 2017 have not been met. 38 U.S.C. §§ 1110, 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to September 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from August 2012, April 2017, and July 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2015. A transcript of the hearing is associated with the electronic claims file. The Board notes that the Veteran requested another hearing before the undersigned VLJ by letter dated August 28, 2018. The Board denies this request as the issues currently on appeal were already addressed in the previous February 2015 hearing. The Board also notes that in its prior September 2015 remand, it directed the RO to issue a statement of the case (SOC) on the Veteran’s claim for an earlier effective date for service connection for PTSD. In this remand, the Board also instructed the Veteran to timely file a substantive appeal after the SOC was issued if he wished to further appeal this claim. The RO issued a January 2017 SOC denying the Veteran’s claim for an earlier effective date, however the Veteran did not file a Form 9 within 60 days of the issuance of the SOC. Accordingly, the claim for an earlier effective date for service connection for PTSD is not before the Board because a substantive appeal was not completed. In February 2018, the Board issued a second remand in this case. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that 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. PTSD is evaluated under 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula For Mental Disorders, to include PTSD, a 30 percent evaluation is warranted when there is there is 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 evaluation is warranted when there is 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 evaluation is warranted where 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; 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. An evaluation shall be assigned based on all the 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. See 38 C.F.R. § 4.126 (2017). Furthermore, when evaluating the level of disability arising 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. It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. The Federal Circuit held previously that a Veteran may only qualify for a given disability rating “by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (“Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the ‘frequency, severity, and duration’ of a Veteran’s symptoms must play an important role in determining his disability level.”). 1. Entitlement to an initial rating in excess of 30 percent for PTSD from June 30, 2011 to March 20, 2016. The Veteran first filed an application for service connection for PTSD in June 2011. At that time, he provided evidence from his social worker listing his many symptoms related to PTSD. The Veteran was granted service connection for PTSD in an August 2012 rating decision, evaluated at 30 percent, effective June 30, 2011. Despite appealing this evaluation, the Veteran remained evaluated at 30 percent for his PTSD from June 30, 2011 to March 20, 2016. A review of the Veteran’s medical records from June 2011 and thereafter support a higher initial rating. The Veteran provided emails from his social worker dated June 2011, wherein it was noted that the Veteran had difficulty falling and staying asleep, irritability, anger outbursts, difficulty concentrating, hypervigilance, and disturbances in social and occupational functioning. It was further noted that the Veteran had recurrent and intrusive distressing recollections of combat events, nightmares of being trapped or confined, flashbacks, and intense psychological distress in response to triggers such as aircrafts, armed officials, and news reports about war. In March 2012, the Veteran had his first VA examination regarding his PTSD. The examiner diagnosed him with PTSD, mild, but noted that the Veteran had experiences, witnessed, or was confronted with an event that involved actual threatened death or serious injury, or a threat to the physical integrity of others and his response involved intense fear, helplessness, or horror. The examiner further noted that the Veteran had recurrent and distressing recollections of the events, as well as distressing dreams and intense psychological distress to triggers. The examiner listed the Veteran’s additional symptoms as difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, depressed mood, anxiety, suspiciousness, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran had a second VA examination for his PTSD in November 2013. This examiner diagnosed the Veteran with PTSD and listed his symptoms as including a depressed mood and social isolation as well as feelings of guilt. The examiner also noted that the Veteran reported nightmares, trouble sleeping, difficulty in groups, anger outbursts, triggers when watching the news, and irritability. In March 2015, the Veteran presented to the emergency room for suicidal ideation and worsening PTSD symptoms due to multiple stressors, including a recent separation with his wife. He was admitted overnight but discharged the following day. By April 2015, the Veteran was again reporting marital problems with his third wife, indicating she wanted a divorce and noting that all three of his divorces have been related to his PTSD symptoms and the way he behaves around people. The Veteran denied suicidal ideation and depression, but the VA psychologist noted that his testing scores suggested moderate depression. Nevertheless, the Veteran was not interested in getting mental health treatment at the VA. Finally, following a third VA examination in March 2017, the RO increased the Veteran’s PTSD evaluation to 50 percent, effective March 14, 2017. However, following additional evidence, a Board remand, and another VA examination, the Veteran’s PTSD was evaluated at 70 percent effective March 21, 2016 and 100 percent as of March 14, 2017. It was during the Veteran’s fourth VA examination in June 2018, following the February 2018 Board remand directives, wherein the examiner provided an opinion as to the Veteran’s PTSD from 2011 to 2017. The examiner opined that “the Veteran’s impairment has progressively gotten worse” and “the Veteran’s impairment was most likely in the 50-70 percent range between 2011 and 2017, but is now total.” As the Veteran’s PTSD symptoms from June 2011 to March 2016 have been well documented and relatively consistent with some periods of deterioration, and a VA examiner has estimated the Veteran’s impairment during this time to be in the 50-70 percent range, resolving the benefit of the doubt in favor of the Veteran, the Board finds that his initial rating for PTSD should have been 70 percent. Accordingly, entitlement to an initial rating in excess of 30 percent for PTSD from June 30, 2011 to March 20, 2016 is granted and the Veteran’s evaluation is increased to 70 percent for that time period. 2. Entitlement to a rating in excess of 70 percent for PTSD from March 21, 2016 to March 13, 2017. For the reasons discussed above, the Board finds that the Veteran’s rating of 70 percent for his PTSD from March 21, 2016 to March 13, 2017 is appropriate. The Veteran had a third VA examination in March 2017. At this exam he was found to have total occupational and social impairment. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, disturbances in mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adopting to stressful circumstances, including work or a work like setting, and inability to establish and main relationships. At his fourth VA examination in June 2018, the examiner concurred with the March 2017 examiner finding the Veteran’s current level of impairment to be total occupational and social impairment. Accordingly, in a July 2018 rating decision, the RO granted the Veteran a 100 percent evaluation for his PTSD effective March 14, 2017, and increased the Veteran’s prior 50 percent rating to 70 percent effective March 21, 2016. The record supports these ratings. There is no persuasive evidence that the Veteran should have been rated at 100 percent prior to March 14, 2017. VA treatment records from March 2016 to February 2017 report PTSD symptoms which more closely align with those that the Veteran was experiencing between June 2011 to March 2016 including re-experiencing the traumatic event, intrusive, upsetting memories, flashbacks, nightmares, feelings of intense distress when reminded of the trauma, loss of interest in activities, irritability, hypervigilance, and difficulty sleeping. As such, these symptoms more nearly approximate the degree of occupational and social impairment contemplated by a 70 percent schedular rating. The record contained no medical opinion that the Veteran had total occupational and social impairment until March 2017, at which point the RO appropriately increased the Veteran’s PTSD evaluation to 100 percent. Since the Veteran’s PTSD symptoms more closely approximated the degree of occupational and social impairment contemplated by a 70 percent schedular rating from March 21, 2016 to March 13, 2017, the Board denies the Veteran’s request for an increased rating for this time period. (Continued on the next page)   Pursuant to the above conclusions, the Board finds that the Veteran’s PTSD should be rated at 70 percent from June 30, 2011 to March 13, 2017, and 100 percent thereafter. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel