Citation Nr: 20038022 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 14-23 547 DATE: June 3, 2020 ORDER A 70 percent rating for the Veteran’s PTSD from August 22, 2012 is granted. For the entire appeal period, a disability rating in excess of 70 percent for PTSD is denied. FINDING OF FACT 1. From August 22, 2012, the preponderance of the evidence shows that the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in most areas; his PTSD is not more nearly manifested by disability analogous to total occupational and social impairment. 2. For the entire appeal period, the Veteran’s service-connected PTSD is not manifested by total occupational and social impairment. CONCLUSION OF LAW 1. From August 22, 2012, the criteria for a 70 percent disability evaluation in PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. For the appeal period, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1966 to October 1970. The Veteran presented sworn testimony at a hearing before the undersigned in September 2017. In June 2018, the Board granted a 50 percent rating for the Veteran’s PTSD and remanded entitlement to a rating in excess of 50 percent. In the March 2019 rating decision, the RO granted the 50 percent disability rating, effective August 22, 2012, the date of the receipt of the Veteran’s original claim for increased compensation. In an April 2020 rating decision, the RO increased the Veteran’s 50 percent disability to 70 percent, effective April 6, 2019. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating in excess of 50 percent for PTSD from August 22, 2012. The Veteran’s PTSD is currently rated at 50 percent, effective August 22, 2012 under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula), which provides a 50 percent rating is warranted when the evidence shows 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; difficulty in establishing and maintaining effective work and social relationships. 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 that 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in General Rating Formula for Mental Disorders 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. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. The Veteran PTSD is currently rated at 50 percent, effective August 22, 2012. He contends that his PTSD is more severe than the currently assigned rating and that he is entitled to a higher rating. See August 2012 VA Form 21- 526EZ, Fully Developed Claim; see also May 2020 Appellate Brief. The Veteran was afforded a VA examination in October 2012. The examiner summarized the Veteran’s impairment as occupational and social impairment with reduced reliability and productivity. The Veteran’s symptoms included: depressed mood; anxiety; suspiciousness; panic attacks more than one a week; near-continuous panic or depression affecting the ability to function independently , appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living, including maintenance of minimal hygiene. The VA examiner remarked, the Veteran was hypervigilant and had an exaggerated response. The Veteran reported difficulty falling asleep due to ruminating thoughts and tinnitus. He reported he was frequently awakened due to combat-related nightmares. He then secured the perimeter with guns that kept by his bed. He would awaken feeling lethargic. He reported impaired memory, difficulty maintaining focus and concentration. He had flashbacks, panic attacks, and auditory/visual/olfactory hallucinations. He was tearful and irritable with low frustration tolerance. He was able to nap for few minutes during the day but typically startles himself awake. He reported having no friends and had been withdrawing from his preferred leisure activities. See October 2012 PTSD DBQ. The Veteran’s treatment notes show the Veteran had chronic PTSD and depression. The Veteran described always being hyper with a history of panic. He reported poor concentration; more frequent arguments with his wife; irritability frequent worry and poor memory. He also reported, panic attacks, exaggerated startle response, nightmares, sleep problems with initial insomnia and frequent awakening, anxiety, can't focus social anxiety/avoidance/distrust; problems with kids, forgetful, hypervigilance, patrolling the perimeter, intrusive memories, triggers and isolating. He denied suicidal or homicidal ideation. See May 2013 Psychiatry Outpatient Note; see also June 2013 Mental Health Consult Report; February 2014 Social Work Risk Assessment Screening Note. At his September 2017 Board hearing, the Veteran testified, that he had panic attacks two or three times a week and had difficulty understanding complex commands. The Veteran also stated, he never contemplated suicide. See September 2017 Hr’g Tr. at 7. Additionally, the Veteran’s wife testified, that the Veteran did not socialize well and alienated from people. His children want nothing to do with him. He is only able to have friends for a short time. Id at 5. The evidence supports a finding that the Veteran’s disability picture for PTSD has more nearly approximated to occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood) for the appeal period. The frequency, severity, and duration of the Veteran’s impairment and assessing his disability picture, the Board finds that the evidence of record demonstrates that disability due to the Veteran’s psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent. See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Board finds that the preponderance of the evidence is against a finding that the Veteran’s PTSD shows total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not symptoms such 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. In light of the foregoing, the Board finds that a rating in excess of 70 percent is not warranted. 2. Entitlement to a rating in excess of 70 percent for PTSD. The Veteran asserts that he is entitled to a rating in excess of 70 percent for his service-connected PTSD. See May 2020 Appellate Brief. The Veteran’s PTSD is rated at 70 percent, effective April 6, 2019. The Veteran was afforded a VA examination in April 2019. The April 2019 examiner summarized the Veteran’s impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted, the Veteran’s symptoms included: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short-term and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; circumstantial, circumlocutory or stereotypes speech; speech intermittently illogical, obscure, or irrelevant; impaired judgment; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; obsessed rituals which interfere with routine activities and impaired impulse control, such as unprovoked irritability with periods of violence. The Board notes, the Veteran has a diagnosis of PTSD and obsessive-compulsive disorder with poor insight. However, the examiner reported, that the diagnoses are independent of each other and result from separate etiologies. The examiner described the Veteran’s PTSD as moderate and obsessive-compulsive disorder as severe. See April 2019 Review PTSD DBQ. Regarding the Veteran’s occupational impairment, the has been retired since 2006. The Veteran had difficulty getting along with others at work due to irritation and angry outbursts. However, he maintained his position despite being reprimanded on more than one occasion. Regarding social impairment, the Veteran’s history indicates a pattern of social distress included a prior divorce, distance from children and current marital strain due to Veteran's impulsive remarks, irritability and anger outbursts and inability to display positive emotions including chronic depression, mood instability and anxiety. The Veteran's wife also confirmed, that Veteran cannot maintain friendships, stating, "He makes friends but cannot keep them.” Additionally, the Veteran reported taking medication to treat his anxiety. He denied suicidal and homicidal ideation. He complained of anxiety in which his chest burned and his stomach quivered. He engages in repetitive motions (blinking eyes, tightening neck muscles) and engages in obsessions and compulsions such as feeling the urge to repetitively straighten objects on the table or repeatedly checking. The Veteran reported angry outbursts when he feels out of control, which has created marital tension. He reported numerous compulsions. HE reported being paranoid and suspicious that someone is outside his home and takes his gun and walk around the house. He is plagued with memory issues and forgetfulness. The Veteran was encouraged to seek psychiatric care in order to better manage his increasing OCD symptoms. Id. The examiner observed, that the Veteran had an odd presentation. He called at inappropriate times four times the following morning. He arrived 60 minutes early for his appointment and expected the examiner to meet him upon arrival. He was overly familiar and inappropriate (calling the examiner by first name), interrupted continuously and was unable to focus on tasks. His eye contact was poor. His speech was excessive and circumlocutory. His thought process was illogical and unclear. He had tics and obsessive behavior. Id. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s anxiety disorder shows total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not demonstrate symptoms such as persistent delusions or hallucinations, grossly inappropriate behavior, 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, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. The Board notes, the examiner indicated the Veteran had symptoms of gross impairment in thought processes or communication; however, the VA examiner indicated the Veteran’s PTSD was overall moderate in severity. In light of the foregoing, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 70 percent, effective April 6, 2019. As such, the appeal must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.