Citation Nr: 18146474 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-31 342 DATE: November 1, 2018 ORDER Entitlement to an initial rating of 70 percent for posttraumatic stress disorder (PTSD) prior to January 20, 2016, is granted. FINDING OF FACT Prior to January 20, 2016, the occupational and social impairment from the Veteran’s PTSD has been manifested by deficiencies in most areas. CONCLUSION OF LAW Prior to January 20, 2016, the criteria for a rating of 70 percent, but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 2000 to July 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Disability Evaluation – PTSD, Prior to January 20, 2016 The Veteran has asserted that he should have a higher rating for his PTSD, prior to January 20, 2016, as his symptoms are worse than those contemplated by the currently assigned rating. The medical evidence of record reflects that the Veteran endorsed psychiatric symptomatology that included significant personal relationship issues; anxiety; chronic sleep disturbances; irritability; isolation; disturbances of mood and motivation; aggression; flashbacks; anger; paranoia; isolation; hypervigilance; physical violence; difficulty concentrating; memory impairment; suspiciousness; restlessness; worthlessness; hopelessness; and impaired judgment. Of record is a February 2010 VA treatment record indicating the Veteran reported the following PTSD symptomatology: irritability; marital difficulty; avoidance of people; avoidance of crowds; nightmares; poor sleep; flashbacks; hypervigilance; headaches; lack of leisure activities; stress; feelings of being overwhelmed; feelings of being withdrawn; having no friends; depression; hopelessness; worthlessness; financial struggles; guilty; anhedonia; startle response; and detachment from emotions. He denied suicidal or homicidal ideation and reported he wanted to preserve his marriage. Of record is a March 2010 VA treatment record indicating the Veteran was experiencing significant marital discord. Of record is a March 2010 statement from the Veteran’s wife. In that statement, the Veteran’s wife reported that the Veteran was mean, had a horrible attitude, was a “ticking time bomb,” that he had changed since separation from active service, that he experienced headaches causing light sensitivity, had mood swings, and that he took his anger out on her or the children. She attributed 100% of their marital issues to his PTSD. In November 2010 the Veteran was afforded a VA psychological examination. At that time, the Veteran endorsed the following symptoms: nervous stomach; feelings of going crazy; trouble sleeping; flashbacks; nightmares; difficulty controlling aggression; difficulty controlling anger; paranoia; self-isolation; avoidance of situations that remind him of deployment; irritability; significant marital distress resulting in an ultimatum from his wife; mood disturbance; blowups nearly every day; and “supersensitivity.” He reported he was married, and had 3 children. Two of his children lived with him and his wife in Georgia. He stated he was deployed to Iraq during active service. Post-service employment included work with training soldiers in simulations of combat and equipment use for war. He reported he tried mostly not to “deal with people,” as that was the “best way to get along.” He reported that his PTSD symptoms were causing him to “ruin his marriage,” because they were “getting the best of [him].” He stated he felt ashamed to seek help but that he was “at the end of [his] rope,” and that he had to get mental health help or that he would lose his family. He denied any suicide attempts. The examiner found his thought processes and communication were not impaired. He denied delusions or hallucinations. The examiner noted the Veteran had appropriate eye contact and interaction throughout the session. The Veteran denied suicidal ideation or homicidal ideation. He was shown to have positive personal hygiene. He was orientated to person, place, time, situation, and purpose. No memory loss or obsessive ritualistic behavior was reported. The Veteran had normal speech, sensorium, and cognition. He denied panic attacks. He endorsed depression, mood disturbances, and anxiety. The examiner diagnosed PTSD that was chronic and moderate to moderately severe on occasion. The examiner noted the Veteran’s severity of psychosocial stressor was moderate, due to the Veteran’s recognition of the problem, medication, and willingness to repair his marriage. Of record is a December 2010 VA treatment record indicating the Veteran had previously pushed his wife. Of record is a May 2011 VA treatment record indicating continued significant marital distress. Of record is a June 2011 VA treatment record indicating the Veteran brandished an unloaded gun at his wife during a disagreement, and reports that he had thoughts of hurting others. At this time, the Veteran endorsed panic attacks, memory problems, and difficulty concentrating. Of record is an August 2011 VA treatment record indicating the Veteran experienced anger, yelling, and arguing with his wife who no longer wanted to be married to the Veteran. Of record is a November 2012 VA treatment record indicating the Veteran reported his PTSD symptoms continued to be severe. He reported feelings of isolation, distance, irritability, jumpiness, suspiciousness, restlessness, and the inability to relax. A November 2015 PTSD questionnaire indicates the Veteran endorsed the following symptomatology: depressed mood; anxiety; suspiciousness; panic attacks occurring more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; short term and long term memory loss; memory loss for names of close relatives, own occupation, or own name; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintain effective work and social relationships; difficulty adapting to stressful circumstances including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; obsessive rituals which interfere with routine activities; impaired impulse control; special disorientation; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and the inability to manage his financial affairs. For the entire appeal period, the Veteran has been shown to have symptoms of anxiety, significant interpersonal relationship issues; physical aggression or violence, and homicidal ideation or behavior. Specifically, the Veteran’s psychiatric symptomatology has consistently been shown to have major effects within his marriage, affecting relationships with his wife and children. Further, the Veteran’s symptoms have been relatively consistent throughout the entire period on appeal. Therefore, the Board finds that entitlement to a 70 percent rating is warranted for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning a higher rating for the appeal period. However, there is no indication from the record that the Veteran’s PTSD results in total social and occupational impairment. The Veteran has not exhibited hallucinations, delusions, or significant cognitive impairment. The Veteran generally did not exhibit delusions or hallucinations. He did not present with impairment in speech, thought content, orientation, hygiene, or upkeep of appearance. Moreover, the medical evidence of record indicates the Veteran actively participated in mental health treatment and marriage counseling. The United States Court of Appeals for the Federal Circuit (Federal Circuit) in Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013), 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. Although Vazquez-Claudio confirms that symptomatology will be the primary focus in cases for higher ratings for psychiatric impairment, it did not hold that the Board may treat the symptoms listed in General Rating Formula as a checklist from which the criteria are mechanically applied. Each list of symptoms associated with the 30 percent, 50 percent, 70 percent and 100 percent ratings in the General Rating Formula is preceded by the words “such as,” confirming that the listed symptoms are simply examples. Instead, the Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating. See 713 F.3d at 118. Thus, when making such an assessment, the Board is mindful of how the frequency, severity, and duration of those symptoms affect occupational and social impairment. In this case, the frequency, severity, and duration of the Veteran’s symptoms are most compatible with a 70 percent rating. Accordingly, there is no indication from the record that the Veteran’s symptoms were so severe as to cause total occupational and social impairment. Therefore, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board also acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports, and the mental health treatment records do not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating for PTSD for the entire period on appeal. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment with deficiencies in most areas sufficient to warrant a 70 percent rating for the entire period on appeal even though all the specific symptoms listed for that rating are not manifested. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel