Citation Nr: 18149321 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 12-06 010 DATE: November 9, 2018 ORDER Entitlement to an initial rating of 70 percent, but no higher, prior to April 23, 2013 for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, prior to April 23, 2013, his PTSD was manifested by occupational and social impairment with deficiencies in most areas due to such symptoms as: disturbances of mood and motivation, inability in establishing and maintaining effective social relationships, impaired impulse control, suicidal ideation, impairment of short and long-term memory, chronic sleep impairment, and hypervigilance. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD prior to April 23, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1980 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in a September 2017 decision, the Board denied entitlement to an initial rating in excess of 10 percent for PTSD prior to April 23, 2013; and in excess of 50 percent from April 23, 2013 to March 8, 2016. The Board also denied an effective date earlier than May 13, 2010, for the award of service connection for PTSD. However, the Board granted an increased rating of 70 percent for PTSD after March 8, 2016. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2018 Order, the Court vacated only the portion of the Board decision regarding entitlement to an initial rating in excess of 10 percent for PTSD prior to April 23, 2013, pursuant to a Joint Motion for Partial Remand (JMPR). The Court remanded the matter for action consistent with the terms of the JMPR. 1. Entitlement to an initial rating in excess of 10 percent prior to April 23, 2013 for PTSD. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress or symptoms controlled by continuous medication. Id. A 30 percent rating is warranted when 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; and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted 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. Id. A 70 percent rating is warranted when 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; 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. Id. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. Id. The rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder’s primary focus in determining the level of occupational and social impairment. Vazquez-Claudio, 713 F.3d at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Vazquez-Claudio, 713 F.3d at 117. Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio, 713 F.3d at 115; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the Board finds that the Veteran suffers from symptoms of similar severity, frequency, and duration that cause occupational and social impairment equivalent to that which would be produced by the specific symptoms enumerated in the rating criteria, then the appropriate equivalent rating will be assigned. 38 C.F.R. 4.21; Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. The Veteran seeks an initial rating in excess of 10 percent for his PTSD prior to April 23, 2013. The Veteran initially was diagnosed with PTSD in March 2009. At that time his symptoms were noted as minimal and he declined any intervention. The Veteran underwent a VA examination for his PTSD in August 2010. During the examination, the Veteran reported having recurrent distressing dreams approximately five nights a week. He had markedly diminished interest in significant activities and had feelings of detachment from others. The examiner reported he had a restricted range of affect. The Veteran also reported chronic sleep impairment and explained that he had difficulty staying asleep approximately five nights per week. The Veteran was irritable, hypervigilant, and had difficulty concentrating. At the time, the Veteran worked full time, out of his office or his home, and reported getting along well with his supervisor. The Veteran also was attending graduate courses and earning A’s and B’s. The Veteran reported that he had regular contact with his sons, mother, and sisters, but he did not feel close to them. The Veteran also reported that he had one close friend. The Veteran described his leisurely activities as running, going to the gym, and riding bicycles. When the Veteran was not working or doing school work, he reported that he watched television and went out to eat with his wife occasionally. The Veteran experienced occasional panic attacks, six or seven per year, impaired impulse control, particularly in controlling his temper. However, he had not engaged in any violent or assaultive behavior. The Veteran also reported daily suicidal thoughts with no plans or intent. He denied delusions, hallucinations, inappropriate behavior, and homicidal thoughts. Objectively, the examiner noted that the Veteran did not have impairment of thought processes or communication. The Veteran was oriented to person, place, and time. The examiner also noted that the Veteran had difficulty in developing and maintaining close interpersonal relationships. The examiner opined that the Veteran’s PTSD signs and symptoms decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner described the Veteran’s social functioning as moderate. In his September 2011 notice of disagreement, the Veteran reported that he had issues remembering names of friends or relative or other events, particularly academic or historical events. The Veteran also explained that he worked in his home and was only successful with his job because he was permitted to work alone. The Veteran also reported that he was unable to engage people and his wife was his only friend. The Veteran also received psychiatric treatment from the VA. An April 2010 suicide risk assessment found the Veteran to have a low risk of suicide. The Veteran reported no current suicidal ideations, though he did report having thoughts of suicide several months prior. The Veteran reported nightmares, flashbacks, insomnia, anxiety, panic attacks, social phobia, irritability and danger problems, feeling on edge, and hypervigilance. A July 2010 VA treatment record shows that the Veteran reported depression, anxiety, nightmares, and poor sleep. On mental status examination, his speech was noted as normal, affect was restrictive, and mood was depressed and anxious. His thought process was coherent and organized. He denied suicidal or homicidal ideations. An October 2010 mental status examination showed the Veteran’s speech was normal. He was oriented and alert with restricted affect. His mood was mildly anxious. His thought process was noted as coherent and organized. The Veteran denied suicidal ideations. July 2011 VA treatment records show that the Veteran reported intermittent suicidal ideation. The Veteran reported that he refused to travel to his agency’s main office in Virginia to train an employee because he was afraid he could hurt his chief. The Veteran also reported having no friends and had difficulty socializing. Based on a review of the evidence, and resolving reasonable doubt in the Veteran’s favor, his PTSD has more nearly approximated the criteria corresponding to a 70 percent rating prior to April 23, 2013. The evaluation of mental health disorders is ultimately based on the degree of occupational and social impairment; however, this determination is symptom-driven. In that regard, the Veteran’s PTSD has manifested with symptoms that fall within the 30 percent to 70 percent rating criteria range. Consistent with the lower end of that range, the Veteran endorsed symptoms of depressed mood, anxiety, panic attacks weekly or less often, hypervigilance, and chronic sleep impairment. The symptoms he endorsed which would approximate a 50 percent rating include: disturbance of motivation and mood and impairment of short and long-term memory. The symptoms he endorsed which would approximate a 70 percent rating include: impaired impulse control, suicidal ideation, and inability to establish and maintain effective relationships. In terms of occupational impairment, the effects of PTSD are relatively mild to moderate. The Veteran reported working full time at a Federal agency and reported having a good relationship with his direct supervisor. However, the Veteran also explained that his ability to do is job is due to the fact that he is able to work alone. The Veteran also reported that he refused to travel to Virginia to train an employee due to concerns that he would harm his chief. In terms of social functioning, the effects of PTSD are more severe. The Veteran isolates himself from others and appears to avoid socializing outside the home. At his August 2010 VA examination, he reported engaging in solitary activities such as running, going to the gym, riding a bicycle, and watching tv. The only activity he reported engaging in outside of the home was going to dinner with his wife, which he reported occurred only occasionally. While the Veteran reported having one close friend at his August 2010 VA examination, he later reported that he had no friends and that his only friend was his wife. Additionally, while the Veteran reported speaking with his sons, mother, and sisters, he also reported that he did not feel they had a close relationship. Moreover, the Veteran reported intermittent suicidal ideation, albeit without plan or intention. See April 2010, June 2010, and July 2011 VA treatment records. Significantly, he reported having them on a daily basis during his August 2010 VA examination. The Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that 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 in most areas.”). In light of the Veteran’s symptoms of impaired impulse control, suicidal ideation, and inability to establish and maintain effective relationships, the Board resolves all reasonable doubt in his favor to finds that a 70 percent rating, but no higher, is warranted throughout the appeal period. An even greater increase to 100 percent is not warranted. The Veteran does not experience gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. VA treatment records generally show that he has been oriented to time and place. Gross impairment in thought processes or communication and grossly inappropriate behavior, have not been noted. In fact, VA treatment records have consistently noted his thought processes as coherent. The Veteran also has consistently denied delusions and hallucinations. Based on this evidence, the Veteran’s symptoms do not more nearly approximate total social or occupational impairment and thus, the assignment of a 100 percent rating is not warranted. In sum, a 70 percent rating for PTSD, but no higher, is warranted for the entire period on appeal. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel