Citation Nr: 18151015 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-43 267 DATE: November 16, 2018 ORDER An initial rating for post-traumatic stress disorder (PTSD) of 70 percent for the period prior to February 1, 2017 is granted. FINDING OF FACT Prior to February 1, 2017, the Veteran’s PTSD was characterized by occupational and social impairment with deficiencies in most areas including work, family relationships, judgment, thinking, and mood and inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for an initial rating of 70 percent rating for PTSD prior to February 1, 2017, have been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from June 2005 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s rating was increased to 100 percent effective February 1, 2017, therefore any discussion of the severity of the Veteran’s disability beyond that point is moot. 1. Increased rating for post-traumatic stress disorder (PTSD) Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). It was rated 30 percent from January 23, 2015 and 100 percent as of February 1, 2017. Under the General Formula, 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), is rated 30 percent disabling. 38 C.F.R. § 4.130. 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, is rated 50 percent disabling. Id. 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 worklike setting); inability to establish and maintain effective relationships, is rated 70 percent disabling. Id. 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, is rated 100 percent disabling. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability 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. 38 C.F.R. § 4.126. In his own lay statement, the Veteran reports that he suffers from constant depression, which he deals with by self-medicating, and violent outbursts. He also reports impulse control issues and reckless behavior. In support of his appeal, the Veteran submitted a statement from his wife dated March 2015. In the statement, she reports that his drinking had increased and his health had declined. She also reports that he has had a short temper which has had a negative effect on his business and friendships. She also includes that he had one episode of violence upon waking from a nightmare approximately one week after returning from his deployment. While the Board considers this incident, the statement affirms that this was a one-time event, and there have not been persistent incidents of violence. In fact, the statement makes it clear that things had improved since they had begun going to counseling and that the Veteran had been recently making efforts to exercise, drink less, and become more active in his relationships. This statement is competent and credible. Behavioral observations at the Veteran’s 2015 examination included that he demonstrated adequate grooming and personal hygiene. He presented as markedly guarded, irritable and anxious throughout the appointment. The Veteran spoke at normal volume, pace, and tone. His speech was linear and goal-directed and he maintained adequate eye contact. He had no symptoms of psychosis or abnormal motor movements and the examiner reported no significant problems with thinking or communication during the interview, nor were significant problems with attention, concentration, or memory observed during the interview. He denied suicidal/homicidal ideations. He was judged capable of managing his own financial affairs. The Board recognizes the statements that the Veteran and his wife submitted as credible lay evidence, but also assigns significant probative weight to the assessment of the VA examiner on this matter. The Veteran has demonstrated occupational and social impairment, with deficiencies in most areas, most importantly work and family relations, judgment, and mood. His symptoms include impaired impulse control, with one instance of violence reported. The Veteran claims to have had further violent outburst, but none are contained in the record. He has demonstrated difficulty in adapting to stressful circumstances, including work, and some inability to maintain effective relationships. The Veteran showed normal spatial orientation, personal appearance, and hygiene. He did not report suicidal ideation or obsessional rituals which interfere with routine activities and his speech was normal. The Veteran reports depression which affected the ability to function independently, appropriately and effectively, but it did not rise to the level near-continuous panic. Based on a review of the totality of the examination and treatment record, considering the aforementioned credible testimony of the Veteran and his wife, the Board concludes that PTSD symptoms most closely approximate a 70 percent disability during the time period on appeal. 38 U.S.C. 5107; 38 C.F.R. § 4.3. Based on the record, while severe impairment is demonstrated, a 100 percent rating for this period involving total occupational and social impairment due to PTSD has not been shown or approximated. The Veteran reported that he had regular work as a bricklayer, and although he reported missing work deadlines, the employment was ongoing at the time of the March 2015 examination. While the Veteran and his wife reported one instance of violence shortly after his return, there is no evidence that there was persistent danger of the Veteran hurting himself or others. There is no indication of symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; intermittent inability to perform activities of daily living (including minimal personal hygiene);   disorientation to time or place; memory loss for names of close relatives, his own occupation, or his own name. None of the Veteran’s actions during his examinations suggest the severity, frequency, and duration of his PTSD symptoms reached the level of total occupational and social impairment. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.W. Strike, Associate Counsel