Citation Nr: 18158614 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 13-19 224 DATE: December 17, 2018 ORDER A 70 percent disability rating is warranted for the Veteran’s service-connected posttraumatic stress disorder (PTSD) throughout the period on appeal prior to June 16, 2017. FINDING OF FACT Throughout the period on appeal prior to June 16, 2017, the Veteran’s service-connected PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; however; it has not been productive of total occupational and social impairment. CONCLUSION OF LAW Throughout the period on appeal prior to June 16, 2017, the criteria for a 70 percent rating, but not higher, for the Veteran’s service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.21, 4.130, Diagnostic Code (DC) 9411 (2017). INTRODUCTION The Veteran served on active duty from October 1994 to February 1999 and from June 2007 to May 2008. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. It was previously before the Board in September 2017, at which time the case was remanded for further development. In June 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the pendency of the appeal, in an April 2018 rating decision, the disability rating for the Veteran’s service-connected PTSD was increased to 100 percent, effective June 16, 2017. As this rating increase does not represent a full grant of the benefits sought, the matter remains on appeal. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on May 17, 2018. However, the appeal for the Veteran’s claim had already been activated at the Board and is therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran’s service-connected PTSD is rated under the General Rating Formula for Mental Disorders. Under this formula, in pertinent part, a 30 percent is warranted for 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). See 38 C.F.R. § 4.130, DC 9411. 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 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 inability to establish and maintain effective relationships. Id. Finally, a 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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; and memory loss for names of close relatives, own occupation, or own name. Id. Where there is a question as to which of two ratings shall be applied, the higher rating 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The symptoms considered in determining the level of impairment under the General Rating Formula for Mental Disorders are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran’s service-connected PTSD is currently rated as 30 percent disabling. The Board has carefully reviewed the medical and lay evidence of records and has determined the Veteran’s symptoms have more nearly approximated a 70 percent rating throughout the period on appeal prior to June 16, 2017. The Veteran was afforded a VA psychiatric examination in April 2009. On that occasion, the Veteran reported having intrusive thoughts with physiological reactivity; irritability; and problems being around other people, adjusting to new situations, concentrating, and expressing himself. He also stated that he had a good relationship with his sister and brother-in-law, as well as with other veterans. The examiner diagnosed PTSD. Further, the examiner opined the Veteran had mild symptoms of PTSD, which did not interfere with his ability to enjoy being around his friends or going to work. Subsequently, VA treatment notes dated June 2009 show that the Veteran was diagnosed with PTSD and alcohol dependence. The examiner noted the Veteran exhibited psychiatric symptoms including hypervigilance, poor sleep pattern, suicidal ideations, increased alcohol use, and reckless behavior, as well as difficulty with focus and memory. The record reflects the Veteran was arrested in October 2009 and charged with attempted felonious assault, failure to comply with a police officer, resisting arrest, and child endangerment. VA treatment notes dated February 2013 indicate the Veteran stated he had another confrontation with the police but was not arrested on that occasion. The February 2013 physician noted that the confrontation was led by an anger outburst, secondary to feeling out of control, helpless, and vulnerable. Moreover, the Board observes that the medical evidence throughout the period on appeal reflects that the Veteran is not an imminent risk to harm himself or others, but needs close monitoring due to his anger and verbally aggressive behavior. The Veteran underwent additional VA examination in August 2010 and June 2016. The August 2010 and June 2016 examiners noted that the Veteran exhibited depression, but opined that this symptom was unrelated to his PTSD. The examiners, unfortunately, did not provide an adequate rationale for their opinions. As such, the Board finds the August 2010 and June 2016 examiners’ opinions regarding the etiology of the Veteran’s depression symptomatology is insufficient for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to be considered adequate, a medical examination report must contain not only clear conclusions and supporting data, but also a reasoned medical explanation connecting the two). However, the Board notes that a December 2017 VA examination, obtained pursuant to the Board’s prior remand, found that the Veteran’s depressed mood was a symptom attributable to his service-connected PTSD. Further, the medical evidence of record, notably VA treatment notes dated June 2009 and October 2011, show reports of intermittent suicidal ideations with occasional thoughts about wanting the pain to end and hopelessness. In this regard, the Board notes that in a recent decision, the U.S. Court of Appeals for Veterans Claims (Court) held that suicidal ideation generally rises to the level of symptomatology 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”). Upon a careful consideration of the foregoing, the Board has determined that throughout the period on appeal prior to June 16, 2017, the Veteran’s service-connected PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that in addition to the frequent suicidal ideation demonstrated by the record, the Veteran’s other psychiatric symptoms, to include anxiety, anger, hypervigilance, difficulty concentrating, sleep disorder, irritability, suspiciousness, panic attacks, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, have clearly caused significant occupational and social impairment. Thus, the Board finds a 70 percent rating is warranted for the Veteran’s service-connected PTSD throughout the period of the claim prior to June 16, 2017. Based on a review of the record, however, there is no evidence of gross impairment in thought process or communication, persistent delusions or hallucinations, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, or own occupation, or own name. The record shows the Veteran has consistently denied self-harming behaviors, homicidal ideations, and thoughts of hurting himself or others. The medical evidence of record reflects that he has not exhibited gross impairment in thought process or content, auditory or visual hallucinations, delusions, or disorientation to time, place, person, and situation. Further, at his June 2017 hearing, the Veteran stated that has been working with VA since January 2014; first at the VA national call center, and then at VA support services. In sum, based on the foregoing evidence, and taking into consideration the benefit of the doubt rule, the Board finds that the Veteran’s social and occupational impairment have not both been “total” at any time during the period on appeal. Accordingly, the Board finds a rating higher than 70 percent is not warranted for the Veteran’s service-connected PTSD at any time during the period on appeal prior to June 16, 2017. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel