Citation Nr: 18146338 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 11-27 848 DATE: October 31, 2018 ORDER An initial disability rating of 100 percent for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the appeal, the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas including work, family relations, thinking and mood. The Veteran has also expressed a history of suicide attempt and hospitalization for suicidal ideation. Resolving all reasonable doubt in the Veteran’s favor, the severity of his symptoms, and particularly his persistent danger of hurting himself or others, is found to more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 100 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.126, 4.130 Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1966 to September 1969, with combat service in the Republic of Vietnam. The issue of an increased rating for the Veteran’s coronary artery disease remains on appeal, but the evidentiary development requested by the Board’s July 2017 remand but has not yet been completed. A separate opinion will be issued when that matter has returned to the Board and is ripe for adjudication. Entitlement to an initial 100 percent rating for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from service-connected 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. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, the higher evaluation 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. The Veteran currently seeks a rating in excess of 30 percent for PTSD. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent rating is assigned 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Use of the term “such as” in the criteria for a rating under § 4.130 indicates that the list of symptoms that follows is “non-exhaustive,” meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a given rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because all nonzero disability levels in the General Rating Formula for Mental Disorders are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that a veteran’s impairment must be due to those symptoms, “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, 713 F.3d at 116-17. In other words, when evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of all psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during any periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. It is the responsibility of any reviewing authority to interpret examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2, 4.126. A review of the VA outpatient treatment records throughout the period covered by this claim shows consistent reports of significant symptoms of nightmare and sleep disturbance, hypervigilance, feeling detached from others, and diminished interest in participating in activities. These symptoms are described as occurring with moderate severity, but high frequency and long duration. See, e.g., VA examination, August 2009. The Veteran has had one prior psychiatric hospitalization from July 9 to July 15, 2009 due to expressing suicidal thoughts of seeking “death by cop.” Upon arrival at the time of his admission, the Veteran was reportedly embarrassed by his outburst and had no intention on following through on such a plan. Id. When questioned further during his August 2009 VA examination, however, the Veteran indicated that the thoughts remained, would probably be there until he died and that there was noting that the examiner could say or do to stop it. The Veteran also reported a prior suicide attempt by putting a loaded pistol to his temple in or around 2007. Although subsequent examiners have not found the Veteran to be at acute risk of suicide, the Veteran has reported persistent suicidal thoughts throughout the present appeals period. Veteran’s statement, June 2018. Also, upon most recent assessment in a July 2018 clinical interview with a private psychologist, the Veteran was found to have recurrent thoughts of death without current suicidal ideation or intent, as well as passive homicidal ideation without current intent. This psychologist found the Veteran to be a danger to himself due to these thoughts. Although the Veteran does not meet the level of severity contemplated by many of the other criteria listed at the 100 percent disability level in the General Rating Formula for Mental Disorders, the Board finds that in this circumstance, the severity of his persistent danger of hurting himself or others most nearly contemplates a level of severity so significant as to warrant a 100 percent rating throughout the period on appeal. To this end, the Board expresses great concern for the continued health and safety of the Veteran. The Veteran is encouraged to contact the Veterans Crisis Hotline at 1-800-273-8255 at any time that free, confidential support is needed or desired. Online chat and text options are also available. K. J. Alibrando Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald