Citation Nr: 18160208 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 08-13 890 DATE: December 26, 2018 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted for the entire appeal period. FINDING OF FACT Throughout the appeal period, the Veteran’s PTSD manifestations have most closely approximated those contemplated by a 70 percent rating. CONCLUSION OF LAW Throughout the appeal period, the criteria for entitlement to a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.130, Diagnostic Code (DC) 9411, General Rating Formula for Mental Disorders (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from May 1970 to December 1971. Through an August 2014 Rating Decision, the agency of original jurisdiction (AOJ) granted entitlement to service connection for PTSD and assigned a 50 percent rating effective May 7, 2014; the Veteran subsequently appealed for an increased rating. In January 2016, the Board remanded for further development. In September 2017, the Board denied entitlement to a rating higher than 50 percent for PTSD. Through a July 2018 Joint Motion for Partial Remand, the U.S. Court of Appeals for Veterans Claims (the Court) vacated the part of the September 2017 Board decision that denied entitlement to a rating higher than 50 percent for PTSD and remanded for further development. Of note, although several other issues were denied by the Board in September 2017, the Veteran did not appeal them and the Court deemed them abandoned. Thus, the issue herein is the only remaining issue currently before the Board. 1. Increased Rating for PTSD In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. 1155; 38 C.F.R. 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. 4.7. Since the effective date of service connection (May 7, 2014), the Veteran has been rated at 50 percent, which contemplates 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/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9413, General Rating Formula for Mental Disorders; May 2016 Codesheet. A 70 percent rating contemplates 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 worklike setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating contemplates 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/or memory loss for names of close relatives, own occupation, or own name. Id. Omaha VAMC records show treatment for depressive disorder not otherwise specified. A January 2013 provider documented the Veteran’s reports of symptoms including: anger; irritability; depression; labile moods; negative emotions; and sleep disturbance. The January 2013 provider also noted that the Veteran: had no hospitalizations; had no suicide attempts; was guarded and confrontational; had an angry mood; had a labile affect; had pressured speech; had concrete thought processes, but that thought content and behavior showed impoverishment; denied wishes to harm self and others; had impaired fund of knowledge; had poor insight and judgment; had psychomotor activity within normal limits; was of average intelligence; did not feel hopeless about the present or future; did not have suicidal thoughts in the past week; and was experiencing a moderate to severe level of stress due to anger and irritability about the Republic of Vietnam (RVN). A February 2013 provider also documented the Veteran’s reports of symptoms including: irritability; anger; depression; labile moods; negative thinking; and sleep disturbance. In a May 2014 Statement, the Veteran reported that he had been having thoughts of suicide and difficulty getting along with people. A May 2014 Omaha VAMC record shows treatment for unspecified depressive disorder. The provider documented the Veteran’s reports of symptoms including: irritable and angry moods; feeling that people are unreliable and unhelpful; negative view of the world; and many suicidal thoughts in the past. The provider also noted that the Veteran: was cooperative and pleasant, but confrontational; had an angry mood; had full range of affect; had spontaneous speech; had goal-directed and logical thought process; had normal thought content and behavior with no psychosis noted; denied wishes to harm self and others; had impaired fund of knowledge (not formally tested, but showed no signs of changing since January 2013 testing); had fair judgment and insight; had psychomotor activity within normal limits (no change from January 2013 visit); was of average intelligence; did not feel hopeless about the present or future; did not have suicidal thoughts in the past week; did not use or abuse drugs or alcohol in the past week; and was experiencing a moderate to severe level of stress due to financial concerns and medical problems. A June 2014 Omaha VAMC record shows treatment for unspecified depressive disorder. The Veteran reported increased anxiety and dizziness since his lawyer pushed him to recall and write down memories about the RVN and reported that he could not go to church for the past three weeks because of them; the provider noted that the increased anxiety and dizziness may be due to his fluoxetine medication. The provider also noted that the Veteran: was cooperative and pleasant; had a neutral mood; had full range of affect; had spontaneous speech; had goal-directed and logical thought processes; had normal thought content and behavior with no psychosis noted; denied wishes to harm self and others; had impaired fund of knowledge (not formally tested, but showed no signs of change); had fair judgment and insight; had psychomotor activity within normal limits; was of average intelligence; did not feel hopeless about the present or future; did not have suicidal thoughts in the past week; did not use or abuse drugs or alcohol in the past week; and was experiencing a moderate to severe level of stress due to interpersonal, financial, and health problems. A July 2014 VA examiner diagnosed PTSD and noted symptoms including: recurrent distressing dreams related to his trauma; avoidance of or efforts to avoid distressing memories, distressing thoughts, distressing feelings, people, places, conversations, activities, objects, and situations related to his trauma; dissociative amnesia regarding important aspects of the trauma; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts with little or no provocation, typically expressed as verbal or physical aggression toward people or objects; exaggerated startle response; problems concentrating; sleep disturbance; clinically significant distress or impairment in social, occupational, or other important areas of functioning; depressed mood; anxiety; suspiciousness; panic attacks occurring weekly or less often; impaired judgment; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. The examiner observed that the Veteran: was cooperative, but rather talkative; had good eye contact; was almost in tears describing events and his medical history; had irritated and depressed mood; had irritable affect; had spontaneous, but sometimes tangential, responses; had no psychosis; had fair insight and judgment; and denied current suicidal ideation. The examiner ultimately assessed occupational and social impairment with reduced reliability and productivity. An August 2014 VA examiner diagnosed major depressive disorder and PTSD and opined that it was impossible to differentiate symptoms because they overlap and are intertwined; the examiner also noted that a neurocognitive disorder was possible, but that it was not ruled in or out based on the records. The examiner noted symptoms including: depressed mood with bad downswings; anxiety; suspiciousness; panic attacks occurring weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment with dreams of bombings and rockets; disturbances of motivation and mood; irritability; dizzy spells from depression medication; some suicidal thoughts; avoidance (avoids Army movies); intermittent inability to maintain minimal personal hygiene (the Veteran reported that he bathed and showered that day for the first time in one week, does not care about his appearance, and does not want to face the day); feelings of worthlessness; and feelings of detachment (the Veteran reported that he felt like he did not belong). The examiner observed that the Veteran: was alert; was verbal, but sometimes hyperverbal with pressured speech and difficulty staying on topic; had labile affect; had depressed mood; was anxious; and had no evidence of psychosis, violence, or acute suicidality. The examiner ultimately assessed occupational and social impairment with reduced reliability and productivity. A September 2014 Omaha VAMC record shows treatment for unspecified depressive disorder. The Veteran reported that his fluoxetine medication seemed to be losing its effectiveness. The provider noted that the Veteran: was cooperative and pleasant, but confrontational; had a depressed and neutral mood; had full range of affect; had spontaneous speech; had goal-directed and logical thought processes; had normal thought content and behavior with no psychosis noted; denied wishes to harm self and others; had impaired fund of knowledge (not formally tested, but showed no signs of change); had fair judgment and insight; had psychomotor activity within normal limits; was of average intelligence; did not feel hopeless about the present or future; did not have suicidal thoughts in the past week; did not use or abuse drugs or alcohol in the past week; and was experiencing a moderate to severe level of stress due to interpersonal and financial problems. In an October 2014 Notice of Disagreement, the Veteran reported that he: has suicidal ideation; is prone to going into rages; has had multiple violent outbursts; has memory problems; and has difficulty adapting to stressful circumstances. In a July 2015 Correspondence, the Veteran contended that: he had suicidal ideation and that records indicate a long history of such ideation; his PTSD medications cause violent nightmares; he cannot handle stressful circumstances and is unable to work; he does not socialize; he neglects personal appearance and hygiene; and he often feels disoriented and dizzy. An April 2016 VA examiner diagnosed paranoid personality disorder, chronic PTSD, and mild cognitive disorder; the examiner opined that it was possible to distinguish symptoms among the diagnoses and that the paranoid personality disorder diagnosis was unrelated to the PTSD diagnosis. However, the examiner provided no rationale for that opinion and described some symptoms that overlapped both the PTSD and paranoid personality disorder diagnoses. As this examiner’s and prior examiners’ opinions are at least in equipoise as to whether symptoms can be distinguished among the mental health diagnoses, the Board resolves all doubt in the Veteran’s favor to attribute all psychiatric symptoms to his service-connected PTSD. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected disability from a non-service connected condition, such signs and symptoms must be attributed to the service-connected disability). Accordingly, the examiner noted symptoms including: recurrent distressing dreams related to his trauma; avoidance of or efforts to avoid people, places, conversations, activities, objects, and situations related to his trauma; persistent and exaggerated negative beliefs or expectations about self, others, or the world; persistent negative emotional state; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outbursts with little or no provocation, typically expressed as verbal or physical aggression toward people or objects; sleep disturbance; clinically significant distress or impairment in social, occupational, or other important areas of functioning; anxiety; suspiciousness; chronic sleep impairment; impairment of short and long-term memory; impaired judgment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; incompetent to manage financial affairs (often loses money and is unable to handle bills effectively); suicidal thoughts particularly at night; mood swings; dizziness with medication; pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent; suspects, without sufficient basis, that others are exploiting, harming, or deceiving him; preoccupied with unjustified doubts about the loyalty or trustworthiness of friends or associates; reads hidden demeaning or threatening meanings into benign remarks or events; persistently bears grudges; and hyperarousal. The examiner observed that the Veteran: was dressed neatly and was well kept; had logical and goal-oriented speech; was cooperative with the evaluation process and answering questions; was oriented to person, place, situation, and time; had fair concentration and attention; had fair judgment and insight; had a slightly agitated affect; had a mood described as downhill; was somatically oriented and often discussed physical complaints, despite being told multiple times that they were not being addressed during this examination; presented as extremely paranoid about others’ intentions and actions (he thought people are only out to steal from him, recounted numerous stories of times he felt insulted or slighted by others, and frequently stated people were untrustworthy). The examiner ultimately assessed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood (although the examiner attributed the “overwhelming majority” of occupational and social impairment solely to the personality disorder, the Board again notes that the examiner provided no rational for that assumption and that the Board has resolved all doubt in the Veteran’s favor to attribute all psychiatric symptoms to his service-connected PTSD). (Continued on the next page)   Based on the evidence above, the preponderance of the evidence weighs in favor of finding that, throughout the appeal period, the Veteran’s PTSD manifestations have most closely approximated those contemplated by a 70 percent rating. Specifically, the evidence above documents several of the 70 percent criteria, including: suicidal ideation; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. However, a higher rating of 100 percent is not warranted because, although the Veteran experiences inability to maintain minimal personal hygiene and handle finances, the evidence does not indicate gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. In addition, total social impairment is not shown, because the Veteran is shown to have been married for many years to his wife and described their relationship as “very good.” While he had what appears to be a strained relationship with his children, he had hobbies and indicated that he had support from not only his wife but also other church members. Thus, total social impairment is not shown, and a 70 percent rating, but no higher, is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel