Citation Nr: 18144570 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-21 833 DATE: October 24, 2018 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to April 15, 2015, and 70 percent prior to June 14, 2016 is denied. A 100 percent rating for PTSD from April 29, 2017, is granted FINDINGS OF FACT 1. The evidence of record shows that for the period prior to June 14, 2016, the Veteran’s PTSD manifested with occupational and social impairment with reduced reliability and productivity. 2. The evidence of record shows that for the period prior to April 29, 2017, the Veteran’s PTSD manifested no greater than occupational and social impairment with deficiencies in most areas, but with no indication of total occupational and social impairment. 3. For the appeal period from February 24, 2017, the Veteran’s PTSD has been manifested by total occupational and social impairment, due to such symptoms of persistent danger of hurting self and others and grossly inappropriate behavior. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD prior to June 14, 2016 and 70 percent prior to April 29, 2017, have not been met. 38 U.S.C. § 1155;5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. For the period from April 29, 2017, the criteria for a 100 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to March 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). He died in October 2017. In October 2017, the Veteran’s surviving spouse filed an application for substitution as the claimant upon the death of the Veteran, including a claim granted dependency, indemnity and compensation (DIC) benefits on the basis of service connection for the cause of the Veteran’s death. In a November 2017 rating decision, the RO granted DIC benefits on the basis of service connection for the cause of the Veteran’s death. In his May 2016 substantive appeal (VA Form 9), the Veteran requested a hearing. He died before a hearing was scheduled. In April 2018, the appellant indicated that she did not wish to have a hearing. Therefore, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704(e). Increased Rating Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510(2007). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to April 15, 2015, and 70 percent prior to June 14, 2016. The Veteran seeks an initial rating in excess of 50 percent prior to June 14, 2016. An October 2016 rating decision increased the evaluation to 70 percent, effective June 14, 2016. The Board notes that from November 24, 2014 to April 14, 2015 the Veteran is in receipt of a 100 percent schedular rating. The periods of 100 percent will not be addressed as the Veteran is in receipt of the maximum schedular rating. A 50-percent evaluation will be assigned for a mental disorder which produces 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. 38 C.F.R. § 4.130, DC 9434, 9411. A 70-percent evaluation applies when a veteran’s occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100-percent rating is assigned 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. Id. The symptoms recited in the criteria in the General Rating Schedule for evaluating mental disorders 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, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nonetheless, the Court of Appeals for the Federal Circuit (Federal Circuit) acknowledged the “symptom-driven nature” of the General Rating Formula. The Federal Circuit observed that “a veteran may only qualify for a given disability rating under § 4.130 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) (emphasis added). The Federal Circuit explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, "VA must engage in a holistic analysis" of the severity, frequency, and duration of the signs and symptoms of the veteran's mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Veteran was afforded a VA examination in November 2011. His reported symptoms included anxiety, depression, low motivation, nightmares, moderate vigilance, irritability, and difficulty interacting with others. Upon examination, he was well groomed. He denied suicidal and homicidal ideation. He was able to complete his activities of daily living. He reported having a stable, adequate marriage. The examiner indicated that the overall impact of his psychiatric symptoms posed moderate to moderately severe difficulties in social and occupational interactions. An April 2015 VA examination had documented symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. At examination he was appropriately groomed and dressed, had tangential thought process, speech pattern was normal, his mood was irritable, and affect was flat. He was oriented and followed a three-step command. He performed serial 7s with difficultly and serial 3s with slight difficulty. He reported being married and endorsed it to be a good relationship. Socially, he had a few veteran friends and attended church. He also endorsed decreased interest in activities and socializing with others. He denied current suicidal and homicidal ideation. The VA examiner concluded the Veteran’s service-connected PTSD demonstrated occupational and social impairment with reduced reliability productivity. Medical treatment notes from 2015 also note that the Veteran was oriented in all spheres, friendly, and cooperative. He appeared engaged and motivated towards treatment. There was no evidence of thought disorder or dangerousness to others. He denied suicidal and homicidal ideation. An August 2015 VA treatment report reflects that he had been married 8 years and described the relationship as good overall and the “best/most stable he has been in.” An October 2015 VA treatment report reflect his mood within normal limits, a consistent affect, no evidence of suicidal/homicidal ideation, and no evidence of a thought disorder. In light of the above, the Board finds that the Veteran’s impairment due to the Veteran’s symptomatology more nearly approximated the assigned 50-percent rating for the period prior to June 14, 2016. 38 C.F.R. §§ 3.400, 4.1, 4.10, 4.130, DC 9411. Indeed, the Veteran reported a good relationship with his wife and continued to maintain relationships with some close friends. The Board finds that such evidence shows reduced reliability in occupational and social function, but not an inability to establish and maintain effective relationships. Additionally, VA treatment report show that could perform tasks requiring level of concentrations (e.g., serial 3s) and that clinical evidence did not reveal a thought disorder. The Board finds such symptomatology is more nearly approximated by reduced reliability in performing occupational functions. The Veteran underwent another VA examination in June 2016. Recorded symptoms were depressed mood, anxiety suspiciousness, panic attacks that occur weekly or less often, mild memory loss, flattened affect, circumstantial speech, speech intermittently illogical, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effect work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. He reported being married for six years and did not have contact with his children from previous marriages. He went to counseling on a weekly basis. His symptoms were assessed to be manifested in occupational and social impairment with deficiencies in most areas, such as work school, family relations, judgment, thinking and/or mood. Based on the totality of the relevant evidence above, between June 14, 2016 to April 29, 2017, the Veteran’s impairment from his PTSD more nearly approximated a 70-percent rating. 38 C.F.R. §§ 4.1, 4.10, 4.130, DC 9411. Specifically, the evidence showed that the Veteran’s disability picture was more nearly approximated by one of deficiencies in most areas including work, family, judgment, thinking, and mood, rather than total occupational and social impairment. During this period, the Veteran reported symptoms of depression, anxiety, impaired impulse control, speech intermittently illogical, obscure, or irrelevant, and difficulty in adapting to stressful circumstances. However, he continued to be married and described the relationship as being good. The Board finds this evidence weighs against total occupational impairment. Overall, his symptoms are contemplated and compensated by the now increased 70 percent evaluation. In sum, the Board finds that the totality of the evidence shows that the disability picture for the Veteran’s PTSD warrants a 50 percent rating for the period prior to June 14, 2016, and 70 percent, for the period between June 14, 2016 to April 29, 2017. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. From April 29, 2017, entitlement to a 100 percent rating for PTSD. The Board resolves all reasonable doubt in the Veteran’s favor and finds that during the appeal period from April 29, 2017, a 100 percent rating is warranted for his PTSD. The April 2017 VA examiner found the Veteran’s symptoms be chronic and severe. He was noted to have hyperarousal and reactivity. He was easily angered, could become violent, and scared his wife when he became threatening. He also had panic attacks most days of the week and was severely depressed with anxiety. Some of his other symptoms included disorientation to time and place, gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, persistent danger of hurting self or others, grossly inappropriate behavior, special disorientation, and impaired impulse control. The examiner determined that his PTSD symptoms manifested in total occupational and social impairment. Based on the foregoing, the Board finds that the overall disability picture of the Veteran’s PTSD symptomatology more nearly approximates total occupational and social impairment, warranting a 100 percent rating for his PTSD for the appeal period from April 29, 2017 as this is when the evidence shows an increase in the service-connected PTSD disability became ascertainable. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel