Citation Nr: 18152259
Decision Date: 11/21/18	Archive Date: 11/21/18

DOCKET NO. 15-00 068
DATE:	November 21, 2018
ORDER
An initial rating of 70 percent from September 12, 2012, to May 1, 2017, for posttraumatic stress disorder (PTSD) is granted.
An initial rating of more than 70 percent since May 2, 2017, for PTSD is denied.
FINDING OF FACT
Since September 12, 2012, the Veteran’s PTSD caused suicidal ideation with suicide attempts; violent outbursts during which he took actions he later had no recollection of; reclusiveness; chronic sleep impairment; avoidance of triggers of in-service trauma; weekly panic attacks; nightmares; exaggerated startle response; hypervigilance; recurrent and distressing recollections of in service trauma; feelings of detachment or estrangement from others; restricted range of affect; difficulty concentrating; depressed mood; anxiety; caused him to make irrational decisions; avoidance of crowds and social gatherings; avoidance of eye contact with others; persistent and exaggerated negative beliefs or expectations about himself, others, or the world; a persistent negative emotional state; difficulty adapting to stressful circumstances; impaired impulse control; mild anhedonia; flat mood; low energy; and feelings of hopelessness.
CONCLUSIONS OF LAW
1. The criteria for a rating of 70 percent, from September 12, 2012, to May 1, 2017, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411 (2017).
2. The criteria for a rating of more than 70 percent since May 2, 2017, for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
The Veteran served in the U.S. Marine Corps from February 2003 to March 2011. He served in Southwest Asia.
In April 2018, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the Roanoke, Virginia, Regional Office (RO). 
Entitlement to an initial rating of more than 30 percent from September 12, 2012, to May 1, 2017, and of more than 70 percent since May 2, 2017, for PTSD.
Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). A 30 percent evaluation is warranted for PTSD where 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, mild memory loss (such as forgetting names, directions, recent events).
A 50 percent evaluation requires 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 evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, 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), and an inability to establish and maintain effective relationships.  
A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).  
The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.  
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
Where, as here, the issue involves the assignment of an initial rating for a disability following the award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999).
In June 2013, the Veteran was afforded a VA examination. The Veteran reported relationship difficulties with his spouse due to his angry outbursts and financial stressors because he had trouble keeping a job. He had one or two friends with whom he spoke weekly. He had no contact with his mother, father, or brothers. In his free time, he watched television; he cooked daily, which he enjoyed. He participated in no other interests or activities, including sports and landscaping, which he previously enjoyed. He had been working full-time at a job in IT for approximately 6 months but stated that he took off significant amounts of time because he did not feel like going to work. His previous jobs were held for 5.5 months and 6 months, and he had been unemployed for 7 months before that. He reported that he had been taking prescription medication for his symptoms while in service but discontinued them when he separated from service. He had a history of alcohol use both in service and after separation. He reported avoiding talking about in-service traumatic events, that he thought about in-service traumatic events multiple times per week, had difficulty sleeping and only got 2 to 3 hours of sleep per night, had nightmares 3 to 4 times per week, was angry and irritable, avoided crowds, had emotional distress and physiological arousal when talking about his deployments, and had panic attacks approximately one time per month. The examiner indicated that the Veteran had symptoms of recurrent and distressing recollections of the in-service traumatic event; recurrent distressing dreams of the event; physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings, conversations, activities, places, and people associated with the traumatic event; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; restricted range of affect; difficulty falling or staying asleep; irritability or angry outbursts; difficulty concentrating; exaggerated startle response; depressed mood; anxiety; panic attacks occurring weekly or less often; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships.
An October 2013 statement from the Veteran’s spouse indicates that the Veteran was unable to rationally respond to stressful situations, which resulted in violent outbursts and irrational decisions. An October 2013 statement from the Veteran’s friend indicates that, over the previous 4 years, the Veteran seemed unsettled, kept his hands in constant motion, and avoided eye contact with others. He was angry and had anxiety attacks a few times per year that required others to keep their distance because speaking to him would cause his anger levels to increase. 
On his December 2014 VA Form 9, the Veteran reported suicidal ideation multiple times per month and weekly panic attacks. Stress and anxiety caused him to miss school or work and led to isolation of his spouse and close friends due to an inability to participate in social events. He reported outbursts and irrational acts that made it difficult for him to be around other people. He had difficulty focusing and performing daily activities and said that he constantly felt on-edge. He also wrote, “Loud noises or abrupt movements cause me to panic and freeze up. I also have problems driving. Aggres[s]ive acts make me speed to get away, or if I see debris I start to panic thinking it might be an IED.”
On May 2, 2017, the Veteran was afforded another VA examination. He reported an improved relationship with his spouse and fewer violent outbursts. He had few friends, none from childhood or his time in the military, and had not spoken with his family in 7 years. He spent his free time watching television, including sports, and cooking. He reported alcohol use approximately 3 days per week where he would have 5 to 6 drinks each day. On examination, he had symptoms of recurrent distressing dreams of in-service trauma; marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event; avoidance of distressing memories, thoughts, feelings, and external reminders of the traumatic event; persistent and exaggerated negative beliefs or expectations about himself, others, or the world; a persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; difficulty concentrating; chronic sleep impairment; depressed mood; anxiety; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; suicidal ideation; and impaired impulse control. 
The examiner noted that the Veteran avoided crowds, and was easily agitated and aggravated when shopping. He was not close with anyone besides his spouse and did not like flying or riding trains due to a feeling of lack of control. The examiner noted that the Veteran had mild anhedonia. The examiner also noted that the Veteran was easily startled by loud noises and would freeze or drop to the ground. He was hypervigilant and did not like to sit with his back to a wall or turn on too many lights. He had angry outbursts where he would break things but was not aggressive toward people or animals. He had physiological responses to triggering items where his chest would get tight and he would feel lightheaded, and he had nightmares 1 or 2 times per week. He got 4 to 5 hours of sleep per night. The Veteran reported a flat mood, low energy, and feelings of hopelessness related to employment and frequently changing jobs. He reported feeling that his spouse would be better off with him and a few months prior “he had a gun, he was holding it, and his wife came in after he threatened to shoot himself.” His spouse had since removed the weapons and he no longer had direct access to them.
At the Veteran’s April 2018 Board hearing, the Veteran testified that during the entire period on appeal, he had depression, anxiety, suicidal ideation, and panic attacks. His spouse testified that he was reclusive and had difficulty even going to the grocery store due too to many people which caused anxiety and panic attacks. She stated that he first had thoughts of hurting himself while he was still in service. He felt nervous in public, avoided crowds, avoided fireworks, and skipped his anniversary dinner the day before. He avoided any television related to the military. He reported being unemployed for 9 months after service despite submitting 134 job applications. He would become silent during interviews and avoid eye contact so had trouble getting hired. He had had 5 jobs since separating from service. He had been working at his current job in information technology (IT) for 2 years and supervised 5 other employees. He had been sent home from work for violent outbursts and anger a couple of times and had since tried to leave work early if he was getting angry. He reported not remembering what happened after the violent outbursts and someone else would have to tell him what happened. He reported that the first time after service separation that he tried to hurt himself, he drove his car into a tree and then reported the car stolen to avoid telling his spouse what happened. He most recently tried to hurt himself a couple of months ago.
Since September 12, 2012, the Veteran’s PTSD caused suicidal ideation with suicide attempts; violent outbursts during which he took actions he later had no recollection of; reclusiveness; chronic sleep impairment; avoidance of triggers of in-service trauma; weekly panic attacks; nightmares; exaggerated startle response; hypervigilance; recurrent and distressing recollections of in service trauma; feelings of detachment or estrangement from others; restricted range of affect; difficulty concentrating; depressed mood; anxiety; caused him to make irrational decisions; avoidance of crowds and social gatherings; avoidance of eye contact with others; persistent and exaggerated negative beliefs or expectations about himself, others, or the world; a persistent negative emotional state; difficulty adapting to stressful circumstances; impaired impulse control; mild anhedonia; flat mood; low energy; and feelings of hopelessness.
Given these facts, the Board finds that the Veteran’s symptoms most closely approximate a 70 percent rating during the entire period on appeal. 38 C.F.R. § 4.7. A 100 percent rating is not warranted at any point during the period on appeal as the Veteran has been able to maintain full time employment for over two years with the same employer, had a few friends, and had some hobbies which he participated in, including cooking and watching sports on television.
 
Vito A. Clementi
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. E. Miller, Associate Counsel