Citation Nr: 18154620
Decision Date: 12/03/18	Archive Date: 11/30/18

DOCKET NO. 16-59 815
DATE:	December 3, 2018
ORDER
A disability rating of 100 percent for PTSD is granted.
FINDING OF FACT
Throughout the pendency of the appeal, the Veteran’s PTSD has been productive of total occupational and social impairment.
CONCLUSION OF LAW
Throughout the pendency of the appeal, the criteria for a 100 percent rating for PTSD have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.130, DC 9411.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from March 2007 to March 2011.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Portland, Oregon. Specifically, the October 2015 rating decision continued a 10 percent disability rating for the Veteran’s PTSD (also claimed as sleep problems; anxiety; and memory loss).  The Veteran disagreed with this decision and perfected this appeal.
Subsequently, by rating decision dated in November 2016, the RO increased the Veteran’s disability rating for his PTSD from 10 percent to 30 percent disabling effective March 5, 2011, the date of his initial claim for service connection.  Thereafter, by rating decision dated in January 2017, the RO increased the Veteran’s disability rating for his PTSD from 30 percent to 50 percent effective August 10, 2015.  As these increases did not represent a full grant of the benefits sought, the Veteran’s appeal has not been abrogated and the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993).
Legal Criteria
Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.
The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411. Under that code, a 30 percent disability rating is in order 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, mild memory loss (such as forgetting names, directions, recent events). 
A 50 percent rating is warranted when there is 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 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 rating is warranted where 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; 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. 
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. 
The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated 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.”  The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.”  Id.  Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118.
As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted.
Analysis
Initially, the Board notes that, beginning November 2014, the Veteran has been incarcerated in the Washington State Penitentiary.  As this appeal has only been pending since the Veteran’s October 2014 claim for increase, VA has been unable to afford the Veteran a VA psychiatric examination.  As such, the Board will consider all available evidence, to include evidence dated several years prior to the appeal period beginning October 2014.  
An October 2011 VA treatment record indicates the Veteran suffered from anxiety, depression, irritability, and anger.  In November 2011, the Veteran attended a VA contract psychiatric examination. At that time, it was noted that the Veteran was a full-time student at the Los Angeles Film Institute, where he had enrolled after separating from service in March 2011.  He reported that he had a 3.5 grade point average.  At the time of this examination, the Veteran reported that he was not then nor had he ever been in mental health treatment. Further, he complained of anxiety, tension, irritability, quick temper, jumpiness, easily startled, hyper alertness, occasional recurrent intrusive thoughts of combat, heighted anxiety, rare flashbacks of combat, insomnia with perimeter checks, and a nightmare occurring once. He denied auditory or visual hallucinations or being a danger to himself or others. On mental status examination, the Veteran was appropriately dressed/groomed, polite, cooperative, and reliable.  He exhibited a serious, somewhat tense and dysphoric mood.  His focus was appropriate.  He did not exhibit panic attacks or obsessive rituals.  His thought content and spontaneity were appropriate.  Thought content was somewhat anxious and depressive consistent with mood and circumstances.  There were no issues with memory and the Veteran was oriented to time, place, person, and purpose.  Intelligence was estimated to be in the normal range.  Judgment and insight were intact.  Significantly, the examiner indicated that the Veteran had “mild mental symptoms which are not severe enough to interfere with occupational or social functioning or to require continuous medication.”
In the Veteran’s October 2014 claim for an increased rating, he wrote that he was being charged for attempted murder due to an event which occurred in February 2014.  The Veteran wrote that a few years after starting at Los Angeles Film School, his mental health problems began to spiral out of control and he found himself getting into trouble with the law which landed him at halfway home.  The Veteran wrote that he began to regress back into “combat mode” as he felt like he was under attack and that these feelings led him to the February 2014 altercation.  
A February 2016 Washington State Department of Corrections (DOC) Involuntary Antipsychotic Report indicates that on August 10, 2015, the Veteran exhibited disorientation, delusional thoughts, increased agitation after destroying his television and other personal items. The following day he was approved for emergency involuntary medication after being assessed by a staff psychiatrist. He continued to be psychotic, agitated, and potentially assaultive. Nine days later the Veteran indicated he would refuse medication going forward and expressed concerns about side effects. 
In February 2016, the Veteran became agitated and started to throw himself against his cell and make threatening statements to staff. He subsequently attempted to head-butt and kick staff and refused to be assessed by medical staff. 
In a March 2016 Involuntary Antipsychotic Hearing, D.M., the primary therapist, Dr. Z., the primary psychologist, and Dr. V all noted the due to the Veteran’s mental illness, he was a danger to himself, others, property, and is was highly likely to again present such risk without treatment. It was noted that treatment less intrusive than involuntary antipsychotics were not expected to adequately treat his mental illness. During this same hearing, the Veteran stated “I really am the Son of God, the Lord Jesus Christ.” 
In September 2016, the Veteran was restrained after “kicking his door with such force that self-harm became an issue” and stating that he was going to “kill all the pigs that work here.” During the restraint, he spat on a staff member. 
An October 2016 Washington State DOC Involuntary Antipsychotic Report indicates that the Veteran had grandiose delusions that improved. He further stated that needs a break from medication to “clear his mind” for the purpose of continuing his work as the brother of the Messiah “Johnny.” The examiner noted that his mood was labile, fluctuating from being so irritable that he refuses to speak with [the examiner] or his counselor, to another day being extremely talkative with tangential speech. He also has demonstrated a decline in his hygiene, wearing his hair down and uncombed.
In a subsequent November 2016 Involuntary Antipsychotic hearing, J.H. and Dr. Z both noted that due to the Veteran’s mental illness, he was a danger to himself, others, property, and is was highly likely to again present such risk without treatment. It was noted that treatment less intrusive than involuntary antipsychotics were not expected to adequately treat his mental illness. During this same hearing, the Veteran noted that he does not believe he is above anyone else, it’s just that they confuse him and that he is past those delusions. Further, the Veteran wanted the committee to know that he was very stressed out during the time frame that he had his break. 
In February 2017, the Veteran assaulted another inmate via choking. In a subsequent April 2017 Involuntary Antipsychotic hearing, S.N., J.L., and Dr. Z all noted that due to the Veteran’s mental illness, he was a danger to himself, others, property, and is was highly likely to again present such risk without treatment. It was noted that treatment less intrusive than involuntary antipsychotics were not expected to adequately treat his mental illness. The Veteran did not attend the hearing and did not have anything to relay to the committee.
Based on the foregoing evidence of record, the Board finds that a 100 percent disability rating is warranted for the entirety of the appeal beginning in October 2014.  The evidence of record indicates that, as early as the October 2014 claim for an increased rating, the Veteran has been a constant danger to himself and others as exhibited by his November 2014 incarceration following a February 2014 altercation as well as the altercations he has been involved in since his incarceration.  Further, throughout this appeal period the Veteran has exhibited gross impairment in thought processes, all contemplated in a maximum 100 percent rating. 

 
APRIL MADDOX
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R.A. Elliott II, Associate Counsel