Citation Nr: 18159075 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 12-29 215 DATE: December 19, 2018 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) for the period prior to December 2, 2015 is granted. FINDING OF FACT Prior to December 2, 2015, the Veteran’s PTSD symptoms more nearly approximated occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 70 percent rating, but no higher, for PTSD for the period prior to December 2, 2015 were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1964 to September 1966. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In April 2011, the RO granted service connection for PTSD and assigned an initial rating of 50 percent, effective March 11, 2009. In June 2014 and in November 2015, the Board remanded this matter for further development. In a December 2015 rating decision, the RO granted a higher 70 percent rating, effective December 2, 2015. In an August 2017 decision, the Board denied an initial rating higher than 50 percent for the period prior to December 2, 2015 and a rating in excess of 70 percent for the period beginning on December 2, 2015. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Order, the Court granted a Joint Motion for Partial Remand, and remanded the issue of entitlement to an initial rating in excess of 50 percent for PTSD for the period prior to December 2, 2015 for action consistent with the terms of the Joint Motion. The appeal as to the remaining issue was dismissed. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran seeks a higher initial rating for his service-connected PTSD. The Veteran contends that his PTSD symptoms for the period prior to December 2, 2015 more closely reflect the 70 percent rating criteria. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 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 to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert at 53. The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, under which a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation 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; 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A general rating formula for evaluating psychiatric impairment contains the actual rating criteria for evaluating the Veteran’s disability. It is designed as a practical guide to compensating Veterans based on the average impairment in earning capacity from service-connected disabilities. VA looks to the impact of the service-connected disability on the ordinary conditions of daily life, including employment. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.10. The Veteran has been receiving mental health services through a VA clinic since 2004. In a November 2009 mental health note, the Veteran disclosed his difficulty in completing documentation pertaining to his application for his service-connected disability. The Veteran stated that he thinks about specific events in Vietnam, that he is confronted with intrusive and unwanted memories. This causes the Veteran to become increasingly anxious, with further sleep disturbances. In a March 2010 note, the Veteran’s private physician, Dr. D. B. stated that the Veteran suffers from debilitating social impairment. During a January 2011 PTSD VA examination, the Veteran reported that he has been married to his second spouse for over 20 years and they have a 16-year-old daughter. The Veteran stated that he continued to have ongoing flashbacks, and vivid memories of his experiences in Vietnam, a sleep disorder, a heightened startle response, and extreme hypervigilance. The Veteran expressed that he avoided cues, triggers, and situations reminiscent of Vietnam. The Veteran described himself as relatively isolative with no close friends. The Veteran stated that he rarely goes out, although occasionally he will with his spouse. The Veteran’s spouse stated that the Veteran had given up his hobbies and he no longer had an interest in positive things. The Veteran’s spouse also stated the Veteran had mood swings, was very volatile, frequently went off, and then became numb. On mental status examination, the Veteran was on time, alert, cooperative, dressed appropriately, with an appropriate mood and affect, and normal speech. The Veteran’s memory, concentration, abstract reasoning, judgment, impulse control, and insight were intact. The Veteran reported a positive relationship with his spouse and daughter, but there was some conflict with his spouse due to his mood swings. The Veteran reported being estranged from his sibling and giving up his hobbies. The VA examiner stated that the Veteran is clearly isolative which is secondary to his PTSD. The diagnosis was chronic PTSD of moderate severity. The Veteran was found to exhibit impaired sleep, isolation, avoidance of recreation and leisure activities, heightened arousal, flashbacks, and mood swings. In an October 2011 letter, B. Dueker, LCSW stated that the Veteran had been meeting with the therapist for individual sessions since January 2008. He stated that the Veteran experiences sleep disturbances, nightmares, has vivid and intrusive recollections of the war, is hypervigilant and anxious at times, and reports difficulty in concentrating. In a November 2014 VA examination, the Veteran endorsed intrusive memories of his deployment, avoidance of conversations and feelings associated with his Vietnam experience, hypervigilance, exaggerated startle response, anxiety (especially in large, crowded, and noisy areas), chronic sleep impairment (due to intermittent waking), nightmares, and irritability. The Veteran denied suicidal and homicidal ideation. The Veteran reported recurrent, involuntary, and intrusive distressing memories and dreams of the traumatic events he experienced, with avoidance of the distressing memories and external reminders (people, places, conversations, activities, objects, situations) that aroused the distressing memories. The Veteran also reported irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, and sleep disturbance. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's PTSD, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that an initial rating of 70 percent, but no higher, is warranted for the period prior to December 2, 2015. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). Collectively, the pertinent evidence shows that the Veteran's PTSD symptomatology included impaired sleep, sleep disturbance, nightmares, flashbacks, hypervigilance, irritability and mood swings with frequent anger or outbursts, anxiety, depression, exaggerated startle response, and social isolation. The Board finds that those symptoms are indicative of occupational and social impairment with deficiencies in most areas. In particular, the Veteran demonstrates social impairment with deficiencies in most areas, particular in the area of mood, with symptoms of irritability and mood swings, with forms of verbal or physical aggression toward people or objects demonstrating difficulty in adapting to stressful circumstances. He further has an inability to establish and maintain effective relationships outside of his spouse and daughter. Even with his spouse there is conflict due to his mood swings. He has no close friends. While the records do not show that the Veteran exhibited suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, spatial disorientation, or neglect of personal appearance and hygiene, the symptoms that he has experienced during this period in combination with the severity, duration and frequency are indicative of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and, thus, an initial 70 percent disability rating is warranted. This is particularly so when resolving reasonable doubt in the Veteran's favor. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102 , 4.3. However, the Board finds that the symptoms associated with the Veteran's PTSD do not meet the criteria for an initial 100 percent rating. A 100 percent rating requires total occupational and social impairment due to symptoms. However, the Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's PTSD. The evidence of record does not indicate that the Veteran has exhibited persistent delusions; grossly inappropriate behavior; 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. While the Veteran was shown to be having difficulties in many areas, and that his symptoms were of such a severity to warrant a higher 70 percent rating, there is no indication that PTSD symptoms were shown to result in total occupational and social impairment at any time. (Continued on the next page)   Accordingly, the Board finds that the criteria for an initial 70 percent rating, but not higher, for PTSD are met for the period prior to December 2, 2015. 38 U.S.C. § 5107 (b) (2012); Gilbert. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel