Citation Nr: 18151633 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 09-22 093 DATE: November 20, 2018 ORDER Entitlement to a disability rating of 50 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) prior to February 1, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a disability rating in excess of 50 percent for service-connected PTSD from February 1, 2011, is remanded. FINDING OF FACT Prior to February 1, 2011, the Veteran’s service-connected PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity CONCLUSION OF LAW Prior to February 1, 2011, the criteria for a rating of 50 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1950 to July 1951 in the United States Marine Corps. These matters were previously before the Board in September 2016 and were denied. The Veteran timely appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC) which granted a Joint Motion for Partial Remand (JMPR) vacating the Board’s decision and remanding the issues for further consideration. 1. Entitlement to a disability rating of 50 percent, but no higher, for service-connected posttraumatic stress disorder prior to February 1, 2011 is granted. Disability evaluations are determined by comparing a Veteran’s present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Depressive disorders are evaluated under the general rating criteria for mental disorders found at 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 50 percent disability rating is warranted when a claimant’s mental disorder results in 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 disability rating is warranted when a claimant’s mental disorder results in 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. A 100 percent rating is assigned when there is total occupational or 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. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.3. The Veteran’s depressive disorder is currently rated in stages; 30 percent disabling and then 50 percent disabling effective February 1, 2011. The periods have been bifurcated into separate claims. The claim for an increased rating for the period since February 1, 2011, is remanded below. Therefore, the Board’s analysis will only concentrate on the initial period prior to February 1, 2011. Treatment records from Vet Center dated October 2007 to January 2008 indicate that the Veteran participated regularly in PTSD group therapy sessions. The Veteran indicated that he had resisted receiving treatment from Vet Center in the past and clinical evaluation described the Veteran’s PTSD as severe and chronic. The Veteran underwent a VA psychiatric examination in January 2008, the examination that provided the basis for the original determination of service connection for PTSD. With regard to reporting his medical history the VA examiner described the Veteran as circumstantial and a perfectionist, with the tendency to become argumentative if not allowed to answer questions in his own manner. With regard to his psychiatric symptoms at the time of the examination and in the year that preceded it, the examiner indicates that the Veteran had great difficulty putting his emotions into words. His primary symptom was “sadness” described as guilt and remorse with depression rated as a five on a scale of one to ten. He denied outward “crying spells” but maintained that such incidents manifested “internally.” Suicidal attempts or ideations were denied due to the Veteran’s feelings of having “too much to do in this world.” Flashbacks were noted and the Veteran described them as occurring on roughly a weekly basis of the death of his squad leader. Symptoms of reexperiencing combat are also triggered by war movies and the coverage of the Iraq and Afghanistan wars. These intrusive memories were also noted to contribute to nightmares that cause the Veteran to thrash and physically strike his wife at times. A frequency was unable to be determined due to the Veteran’s inability to remember such nightmares after they occur. The Veteran engages in behavior such as constantly keeping a weapon in his car and closet, checking the locks on his doors and windows three to four times per night, double bolting his door, an inability to sit in a restaurant in a seat he is uncomfortable with, over caution, hypervigilance, exaggerated startle response and grinding his teeth as a result of these symptoms. Outbursts of verbal anger one to two times per day at home were endorsed, although not at work, and the Veteran was confrontational at some points of the examination. The Veteran does not leave his house much to avoid further anger outbursts. The overall impact of his psychiatric symptoms, as described by the Veteran is “mild” but it is noted that this is due to the Veteran’s ability to compartmentalize. The VA examiner’s objective psychiatric examination reveals that the Veteran has a strong relationship with his wife but almost no friends or relationships outside his wife. A single other couple was identified as a relationship, people whom the Veteran and his wife visit once or twice a year. Any other friends had died to moved away at the time of the examination and the Veteran makes no effort to foster new friendships. The Veteran did not demonstrate a physically violent or assaultive nature and only one isolated episode of road rage was identified. The VA examiner specifically noted the Veteran’s argumentative and avoidant behavior during the examination with respect to emotional questions. The VA examiner also described the Veteran as spontaneous, over productive, and almost rambling at times, but with no apparent looseness in thought process or associations with general relevant answers. The only impediment to his thought process is described as occasional circumstantiality and preservation. The VA examiner confirmed obsessive and ritualistic behavior, and impaired impulse control, and provided conflicting statements about nightmares but indicated sleep impairments due to nightmares. Ultimately the VA examiner described the impact of the Veteran’s PTSD symptoms as causing occasional decrease in work efficiency or intermittent inability to perform occupational tasks. Ongoing records from Vet Center dated through May 2008 described the Veteran’s PTSD symptoms included depressed mood, blunted affect nightmares, sleep impairment, and anger characterized as severe. Suicidal and homicidal ideations were denied. The Veteran was actively attempting to reduce these symptoms through group therapy participation. In a May 2009 statement the Veteran’s son, a registered nurse, opined that the Veteran’s PTSD manifested as severe with symptoms of anger, irritability, guilt, insomnia, hypervigilance, impaired concentration, pathological anxiety, and low stress tolerance. The Veteran’s son also disputed the sufficiency of the characterization of the impact of the Veteran’s PTSD on the January 2008 VA examination. Vet Center records through December 2009 continued to describe the Veteran’s PTSD as severe and chronic primarily manifesting with depression and “sad effect.” The Veteran’s sleep impairments, stress, anger, remorse, and recollection of vivid memories and re-experiencing of combat trauma were regularly discussed during Vet Center therapy. The Board finds that the Veteran’s PTSD symptoms prior to February 1, 2011 more closely approximate the criteria for a 50 percent disability rating. The Veteran’s disability picture manifested primarily with symptoms of depression, intrusive thoughts and nightmares, hypervigilance, anxiety, sleep impairment, and outbursts of anger and irritation. The Veteran also demonstrated obsessive rituals and impaired impulse control as demonstrated by his daily outbursts of anger. The Veteran’s January 2008 VA examination’s objective psychiatric evaluation indicates a degree of circumstantial speech and thought processes as well as rambling and a confrontational manner. Concurrent Vet Center records and competent statements from the Veteran’s son also demonstrate evidence of blunted affect, impairments to concentration, low tolerance to stress and anxiety issues. Furthermore, while the evidence during this time period does not explicitly demonstrate a substantial impact of this symptomatology on the Veteran’s occupational ability, the Board finds it highly probative that the VA examiner noted the Veteran to be quite compartmentalized with his symptoms. This is further demonstrated by the evidence of the symptoms’ impact on the social aspects of the Veteran’s life. While the Veteran appears to have a stable long-term relationship with his wife, he has made no efforts to establish other relationships or friendships apart from one. The fact that the Veteran refrains from leaving the house to avoid exacerbating his symptoms further supports his tendency to compartmentalize. Taking the impact of these symptoms on the occupational and social aspects of the Veteran’s life together, and affording the Veteran the benefit of the doubt, the Board finds that his service-connected PTSD more closely approximates a 50 percent disability rating for the period prior to February 1, 2011. The Board finds that the criteria for a rating in excess of 50 percent for this initial period are not met or more closely approximated. While the Board acknowledges that there are certain symptoms the Veteran experiences that are enumerated in the rating criteria for 70 percent, namely obsessive rituals and impaired impulse control, they do not warrant an increase. With respect to the obsessive rituals the Board finds that the evidence does not show that they interfere with the Veteran’s routine activities. Rather, they appear to be a part of the Veteran’s routine activities. The daily outbursts of anger, apparent manifestations of impaired impulse control, were characterized as verbal in nature only with no aspect of physical violence. The Veteran did not demonstrate any assaultive or physically violent nature for the period prior to February 1, 2011. The Veteran also consistently rejected suicidal and/or homicidal ideations. Although the Veteran also demonstrated symptoms of panic and depression the clinical medical evidence does not demonstrate that prior to February 1, 2011 that these symptoms were near continuous and affected the Veteran’s ability to act independently, appropriately, or effectively in his day to day life. Therefore, the preponderance of evidence is against a finding that the Veteran is entitled to a 70 percent disability rating for the period prior to February 1, 2011. Finally, the competent and credible evidence of record does not demonstrate that prior to February 1, 2011, the Veteran’s service-connected PTSD caused total occupational or 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. REASONS FOR REMAND Entitlement to a disability rating in excess of 50 percent for service-connected PTSD from February 1, 2011 is remanded. The parties to the JMPR agreed that the Board’s reasons and bases for assigning a 50 percent disability rating for service-connected PTSD were insufficient. The Veteran was last examined by the VA for PTSD in March 2014. The substance of the JMPR also indicates that Veteran’s service-connected PTSD disability has increased in severity since the Veteran was last examined by VA. Therefore, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of service-connected PTSD disability. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. (Continued on the next page)   A complete rationale must be provided for all opinions offered. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod