Citation Nr: 18158621 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-29 107 DATE: December 18, 2018 ORDER Entitlement to an increased rating of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) from July 5, 2012, to October 4, 2012; and from January 1, 2013 to April 12, 2018, is granted. Entitlement to an increased rating higher than 70 for PTSD from July 5, 2012, is denied. FINDING OF FACT For the entirety of the appeal period, the symptoms and overall impairment caused by the Veteran’s psychiatric disability more nearly approximated occupational and social impairment with deficiency in most areas, but did not more nearly approximate total occupational and social impairment. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an increased rating of 70 percent, but no higher, for PTSD for the entirety of the appeal period, have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1977 to January 1985, and from February 1991 to March 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran properly appealed the denial of his claim for an increased rating. The Veteran originally filed a claim for increased rating for PTSD in February 2011, but withdrew his claim in March 2012. In a June 2012 rating decision, the RO continued the Veteran’s 30 percent disability rating for PTSD, which he appealed in July 2012. In the March 2013 rating decision, the RO granted a temporary total disability rating for PTSD from October 4, 2012, to January 1, 2013, and continued the Veteran’s 30 percent rating thereafter. In a September 2013, January 2016, and July 2016 rating decisions, the RO continued the Veteran’s 30 percent disability rating. In an October 2018 rating the decision, the RO awarded a 50 percent disability rating from July 5, 2012, to October 4, 2012, and from January 1, 2013, to April 12, 2018; and a rating of 70 percent from April 12, 2018. The Veteran did not indicate satisfaction with the grant of these ratings, and the issue therefore remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). The Board notes that the Veteran has a temporary total disability rating from October 4, 2012, to January 1, 2013, for a period of hospitalization over 21 days for his service-connected PTSD. Thus, the Board’s decision will only consider the Veteran’s disability rating for PTSD prior to and after the dates of his temporary total rating. 1. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) from July 5, 2012 to October 4, 2012, and from January 1, 2013 to April 12, 2018; and a rating higher than 70 percent from April 12, 2018 Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If two ratings are potentially applicable, 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. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 589. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his service-connected PTSD warrants a disability rating higher than 50 percent under 38 C.F.R. § 4.130, DC 9411, prior to April 12, 2018, and higher than 70 percent thereafter. The Veteran filed a claim for an increased rating on July 5, 2012. 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 a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely based on social impairment. 38 C.F.R. § 4.126(b). Under the General Rating Formula, a 50 percent disability 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 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent disability rating is warranted when 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; 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. A 100 percent disability 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Post-service VA treatment records in August 2011 reflect complaints of poor sleep with nightmares, depression, and hallucinations. The Veteran reported that his mood and judgment were “off,” and that he was having relationship problems. He stated that he almost shot his girlfriend by accident because there had been a lot of break-ins in the neighborhood, and he pointed a gun at her when he heard someone in the house and did not know it was her coming back from her overnight shift. He reported increased panic attacks since the incident, but stated that his nightmares had decreased in frequency. He denied command hallucinations, as well as suicidal and homicidal ideation. He was alert and oriented, and fairly groomed and dressed. His attention and concentration were appropriate, his speech was logical and goal-directed, his judgment and insight were intact, and he was mildly depressed. There was no active psychosis. In December 2011, the Veteran was admitted at the hospital for homicidal ideation. He had been yelling in his yard that he was going to “to kill those pedophiles” because “they shouldn’t be living.” The neighbors called the police, who requested an ambulance to transport the Veteran to the hospital. The Veteran had been off his medication for a week. The next day, the Veteran explained that his homicidal ideation the night before stemmed from his drinking. Lab testing was also positive for psychiatric medication. The physician found that the Veteran was alert and oriented, that his thinking and speech were normal, and his insight and judgment were fair. He was not an imminent threat to self or others, and he was discharged. VA treatment records in February 2012 document poor sleep with nightmares, depression, and hallucinations. He reported that he still saw shadows walking past him or behind him, which made him jumpy, but that his auditory hallucinations had decreased and he did not have command hallucinations. He endorsed panic attacks, to include when the police came to his house and he was taken to the hospital in December 2011. He stated his sleep was better and the nightmares less frequent and severe. He denied suicidal and homicidal ideation. He was alert and oriented, and fairly groomed and dressed. His attention and concentration were appropriate, his speech was logical and goal-directed, his judgment and insight were intact, and he was mildly depressed. There was no active psychosis. A February 2012 VA examination report documents that the Veteran lived with his girlfriend continuously since 2004 and they were doing “okay.” He enjoyed swimming and playing cards, and walked and played with his dog. He watched television, read, walked around the home, cut the grass, did laundry, and regularly bathed and groomed himself. He went to stores early, but he never went out to do things or see friends, although he sometimes talked on the phone with soldiers he served with in Korea. He saw his family and he enjoyed hosting his girlfriend’s family over Christmas. The Veteran experienced difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, depressed mood, suspiciousness, and mild memory loss. He reported no energy, hopelessness, worthlessness, and guilt. He did not feel good about himself and was unsure about his future. He was forgetful about picking up people for medical appointments and he misplaced things. He had nightmares about once a week about his time in Korea. He had suicidal thoughts about three times per week without a plan or intent, and while he did not actively think about harming himself he thought he might not care if he died. The VA examiner tested the Veteran’s urine and found that it was negative for psychiatric medication. She found that “this strongly suggested that he had not taking them regularly, strongly suggesting that he was not as distressed as he claimed.” She also opined that the Veteran was vague and reported atypical, and unusual or improbable symptoms of hallucinations and flashbacks, which “made the true symptom picture very difficult to judge, especially given the clear non-compliance with at least one his medications.” He was oriented to time, situation, and place; well groomed; his speech was normal; his affect was broad and consistent; and his memory testing was inconsistent. She found that there were “clear indications of significant exaggeration or malingering” that “brought into question his reports.” A March 2012 VA treatment record indicated complaints of poor sleep with nightmares, depression, and hallucinations. The Veteran reported that he was very upset about the February 2012 VA examination, and he had become paranoid about everyone, especially the VA examiner. He explained that he took his medication every day. He reported that he continued to see shadows walking past or behind him, but that he had not heard voices. He stated that sometimes he saw his old barracks when he looked out the window and that he became jumpy when someone walked by him. He denied command hallucinations, but endorsed increased panic attacks and worsening sleep since the VA examination. An April 2012 private psychologist evaluation documented that the Veteran was cooperative, alert, and fully oriented. His mood was anxious and edgy, and he exhibited a broad range of affect. His speech was clear, quick, and loud. He admitted to experiencing hallucinations associated with his PTSD, but denied any other forms of auditory or visual hallucinations. He denied experiencing true delusions, although he admitted to some distrustfulness and suspicious ideation. He endorsed significant dysphoria and anhedonia, and stated that he was unable to enjoy anything. He had satisfactory sleep but had unexplained fatigue. He was irritable, he felt worthless, often wished he could die, and denied homicidal thoughts. He experienced panic attacks once a week with palpitations, sweating, shortness of breath, dizziness, and chills. He experienced both flashbacks and nightmares, he had persistent anxiety, and he had an exaggerated startle response. He reported that he had difficulty sustaining attention and was easily distracted, and he was forgetful in daily activities and frequently lost things. The psychologist found that the Veteran’s problems with attention and concentration were likely associated with his PTSD. VA treatment records in 2013 reflect complaints of poor sleep with nightmares, depression, and hallucinations. The Veteran reported that he still thought about death a lot and “what it would be like if [he were] not here.” He stated that he was still depressed. He endorsed continued hallucinations and that he heard gunshots and saw someone at the door and window. He stated that he slept about six hours per night. His anger was better but he was still irritable, although he did not show his irritability. He suffered deaths in the family and tried to stay busy, but did not talk to his daughter about what he was going through. He endorsed three or four panic attacks since the death of his aunts and friends, although his sleep was still good and his nightmares less frequent. He was alert and oriented, and fairly groomed and dressed. His attention and concentration were appropriate, his speech was logical and goal-directed, his judgment and insight were intact, and he was mildly depressed. There was no active psychosis. A September 2013 VA examination report reflects markedly diminished interest or participation in significant activities, and feeling of detachment or estrangement from others. The Veteran reported that he had difficulty falling and staying asleep, difficulty concentrating, hypervigilance, depressed mood, anxiety, mild memory loss, and difficulty establishing and maintaining effective work and social relationships. VA treatment records in 2014 document continued complaints of nightmares, depression, and hallucinations. The Veteran stated that he was in a slump and he was worried about his wife and mother, both of whom were sick. He slept for approximately six hours and his nightmares had decreased. He still heard people talking during the night, as well as music and “white noise,” but his visual hallucinations had decreased. He denied homicidal and suicidal thoughts, as well as command hallucinations. He was alert and oriented, and fairly groomed and dressed. His attention and concentration were appropriate, his speech was logical and goal-directed, his judgment and insight were intact, and he was mildly depressed. There was no active psychosis. A July 2015 VA examination report indicates diagnoses of PTSD and major depression. The examiner opined that Veteran had mild social and occupational impairment due to his PTSD and depression. He noted that the Veteran’s psychiatrist found that his PTSD was stable and he was doing well. His current symptoms included markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, problems with concentration, sleep disturbance, depressed mood, and mild memory loss. The Veteran was friendly, pleasant, and cooperative during the interview. He was casually attired and maintained good eye contact with the examiner. He smiled freely and often, and he appeared very relaxed. He was alert and oriented, and fairly groomed and dressed. His attention and concentration were appropriate, his speech was logical and goal-directed, his judgment and insight were intact, and he was mildly depressed. There was no active psychosis. VA treatment records in October 2015 document that things had been “rough,” and that he experienced increased flashbacks. He scared his wife by saying he “ought to end it all,” but he stated that he had no plans or intent to hurt himself or others. He was only sleeping about three to four hours per night, and nightmare woke him up. A May 2016 VA examination report reflects diagnoses of PTSD and major depressive disorder (MDD), and that he had mild social and occupational impairment due to PTSD and MDD. The veteran remained married. His symptoms included markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response, problems with concentration, sleep disturbance, anxiety, and mild memory loss. VA treatment records in 2016 document that the Veteran did not want to go anywhere, do anything, or have sex with his wife. He got up early and went to bed early, and he continued to have nightmares. He did not want to be in crowds; and he had been forgetful, such as losing two phones and a pair of glasses. He called the suicide hotline in August 2016, although he did not have thoughts of hurting himself now. He also continued to experience flashbacks and nightmares, although he slept about six hours per night. He explained that he and his wife got into an argument during Halloween because he was worried that someone might try to rob them, and he kept his gun on himself the entire night. He continued to hear people and music, but the visual hallucinations had stopped. He was alert and oriented, and fairly groomed and dressed. His attention and concentration were appropriate, his speech was logical and goal-directed, his judgment and insight were intact, and he was mildly depressed. There was no active psychosis. VA treatment records in 2017 indicate complaints of depression, poor sleep, and hallucinations. The Veteran reported increased flashbacks due to weather siren exercises, and that he could not sleep because he kept thinking about his in-service stressors. He also heard sounds at night, like someone shaking the door. He was alert and oriented, and fairly groomed and dressed. His attention and concentration were appropriate, his speech was logical and goal-directed, his judgment and insight were intact, and he was mildly depressed. There was no active psychosis. In a July 2017 statement, the Veteran endorsed suicidal thoughts. An April 2018 VA examination report reflects that the Veteran had been married to his girlfriend for 3 years, and he lived with her. He had lost track of his son and he had not seen his teenage daughter in three years because he did “not want her to see him this way.” He supported her financially and talked to her on the phone twice a month. The Veteran also supported his mother who lived independently, and he had not seen his half-sister in three or four years. He did not have any friends and he did not want to be around people. He enjoyed watching sports on television and walking on the track. He admitted a history of intermittent passive suicidal ideation without plans. His symptoms consisted of persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior and angry outbursts, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, sleep disturbance, depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbance of mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, persistent delusions or hallucinations, and neglect of personal appearance and hygiene. His appearance was clean and he was cooperative. His speech was normal, his mood depressed, and his affect congruent with his mood. He was alert and oriented, his judgment and insight were fair, and his thought process linear. There was no overt psychosis, but he experienced auditory disturbances. He had nightmares two to three times per week. As previously noted, the Veteran has a 50 percent disability rating from July 5, 2012, to October 4, 2012, and from January 1, 2013, to April 12, 2018; and a 70 percent rating thereafter. For the following reasons, a disability rating of 70 percent, but no higher, for PTSD is warranted for the entirety of the appeal period. The evidence shows that the Veteran was hypervigilant, depressed, and anxious. He experienced chronic sleep impairment, irritability and anger outbursts, and isolationism. He continuously stated that he did not like crowds and did not have friends, and he specifically stated in April 2018 that he had not seen his daughter in three years because he did not want her to see him “likes this.” He had chronic sleep impairment and nightmares, and reported that he could only fall sleep with medication. In addition, he endorsed continuous panic attacks and hallucinations that included seeing shadows and hearing people and music. He had a good relationship with his wife and mother, but he did not have a good relationship with his son, daughter, or half-sister. Further, the evidence reflects difficulty with concentration and focus, as well as worsening short and long-term memory. The Veteran also experienced exaggerated startle responses, estrangement from others, and markedly diminished interest in activities. He also had difficulty adapting to stressful circumstances, suspiciousness, and disturbances of mood. In addition, the Veteran endorsed intermittent suicidal ideations. While the February 2012 VA examiner found that the Veteran was not credible in his reports, the Board notes that the Veteran’s statements to the February 2012 VA examiner are corroborated by his medical records. Thus, the evidence reflects that, for the entirety of the appeal period, the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected PTSD. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (the language of the general rating formula 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 with deficiencies in most areas). However, neither the symptoms nor overall impairment more nearly approximate total occupational and social impairment required for a 100 percent rating. The evidence shows that the Veteran has difficulty in establishing and maintaining social relationships, as evidenced by his lack of friendships. Nevertheless, the Veteran reported that he had a good relationship with his wife and mother, and he enjoyed socializing with them. This reflects that the overall level of impairment did not more nearly approximate the total social impairment listed in the criteria for a 100 percent rating. In addition, while the Veteran experiences anger outbursts and irritability, he was not in persistent danger of hurting himself or others. While the Veteran was hospitalized for one day in December 2011 for shouting that he was going to “kill the pedophiles,” he explained the next day that his outburst was due to alcohol, and that he did not actually have homicidal thoughts or plans. He was also oriented to time, place, and person; he maintained good personal hygiene; there was no evidence of gross impairment in thought processes, communication or their equivalents; his speech was normal, clear, and goal-oriented; and his insight and judgment fair. Thus, an initial rating higher than 70 percent for his service-connected PTSD is not warranted because neither the symptoms nor overall impairment more nearly approximated the total occupational and social impairment required for a 70 percent rating. The above determinations are based on consideration of the applicable provisions of VA’s rating schedule. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page)   . Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel