Citation Nr: 20062001 Decision Date: 09/21/20 Archive Date: 09/21/20 DOCKET NO. 17-43 148 DATE: September 21, 2020 ORDER Entitlement to a 70 percent disability rating for posttraumatic stress disorder (PTSD), effective August 15, 2017, is granted. FINDINGS OF FACT 1. Prior to August 15, 2017, the Veteran’s service-connected PTSD was manifest by occupational and social impairment with reduced reliability and productivity. 2. Since August 15, 2017, the Veteran’s service-connected PTSD was manifest by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW Prior to August 15, 2017, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. Since August 15, 2017, the criteria for a 70 percent disability rating, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from June 1959 to May 1962 and January 1967 to August 1973, and August 1980 to December 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision of the Regional Office (RO) in Togus, Maine. In December 2017, the Veteran testified before the undersigned Veterans Law Judge at a Central Office hearing; a transcript is of record. In a March 2020 statement, the Veteran reasserted that his PTSD symptoms impact his ability to work. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a total disability rating based on individual unemployability is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). However, after initially making this claim in October 2016, the RO adjudicated the issue and denied it in an August 2017 rating decision. The Veteran did not appeal that decision to the Board. In March 2018, the Board remanded the Veteran’s claim of entitlement to a rating in excess of 50 percent for PTSD for a new VA examination. VA requested the examination in October 2018, and a completed examination was associated with the record that same month. The Board finds substantial compliance with its March 2018 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a 70 percent disability rating for PTSD, effective August 15, 2017 Since August 15, 2017, the Board finds that the preponderance of the evidence is in favor of granting a 70 percent rating, but not higher, for PTSD. The Veteran essentially contends that his symptoms more closely approximate at least a 70 percent disability rating for the entire appeal period. However, the evidence shows instead that as of August 15, 2017, the Veteran’s service-connected PTSD more closely approximates a 70 percent rating. The Veteran’s PTSD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under such code, 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 judgement; 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 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Use of the term “such as” in the criteria for a rating under § 4.130 indicates that the list of symptoms that follows is “non-exhaustive,” meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign to a rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively 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 rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. Prior to August 15, 2017, the evidence of record more closely approximated a 50 percent disability rating. Since then, the evidence of record more closely approximates a 70 percent rating, but no higher. The Veteran underwent VA examination in March 2015. The Veteran reported being withdrawn and isolated. He reported troubles sleeping and crying spells. The VA examiner found that the Veteran’s PTSD caused occupational and social behavior with reduced reliability and productivity. The examiner noted the Veteran experienced hypervigilance, persistent inability to experience positive emotions, depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was oriented to time, place, person, and purpose of the interview, and he did not endorse experiencing hallucinations, delusions, obsessive compulsive features, or mania. The Veteran underwent VA examination again in October 2018. The Veteran reported irritability, no intimate relationships, and only occasionally getting coffee with a friend. The Veteran reported social avoidance, nightmares, hypervigilance, insomnia, and irritability. The VA examiner concluded that the Veteran’s PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examiner noted the Veteran experienced recurrent distressing dreams, irritable behavior and angry outburst, sleep disturbances, anxiety, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work relationships. The Veteran was alert and oriented, and did not endorse experiencing audiovisual hallucinations, delusions, or paranoia. The examiner noted the Veteran’s impulse control as fair. The Veteran’s VA treatment records are of record. As the Veteran testified, he does not receive mental health treatment or care. However, in a January 2015 treatment note, the Veteran denied suicidal or homicidal ideations. Throughout his treatment records, the Veteran reported nightmares to his physicians. Specifically, the Veteran reported that his nightmares used to contain guns, but now contain snakes. In a March 2015 Notice of Disagreement (NOD), the Veteran reported daily and nightly anxiety/ panic attacks. He contended that this information was not included in the initial rating. In an August 2017 VA Form 9, the Veteran reported numerous anxiety and panic attacks daily. He reported losing joy most of the time and finds himself in states of depression wondering why he should continue living. He reported getting upset without reason and choosing to be alone because he doesn’t trust anyone. The Veteran reported major problems with concentration, focus, short- and long-term memory. He reported being impulsive. During his hearing, the Veteran testified that he had daily and nightly panic attacks. He explained that the panic attacks at night would occur, often times, after a nightmare. He testified that watching movies or tv shows sometimes results in flashbacks and he cannot finish the film or show. Furthermore, the Veteran reported he had suicidal ideation. He testified that he has thought about ending his own life. In a March 2020 statement, the Veteran explained his symptomatology. Specifically, the Veteran reported having major difficulty in adapting to work or work-like settings. He reported having suicidal ideations for years. He reported disturbances of motivation and mood, difficulty establishing and maintaining effective relationships, and chronic sleep impairment. He reiterated that he experiences daily and nightly panic attacks, including following nightmares. The Veteran reported being in a depressed mood, and that his entire life is a waste. The Board finds that the Veteran first endorsed passive suicidal ideation in his August 2017 Form 9, when he wrote that he questioned why he should continue living. As such, the date of this statement is the date the Veteran became entitled to a 70 percent disability rating. The Board finds that prior to the Veteran’s Form 9, his symptoms more closely approximated a 50 percent rating. While the Board acknowledges that he had some symptoms that are contemplated in the 70 percent rating criteria, such as near continuous panic and difficulty in adapting to stressful environments, the totality of the evidence more closely followed a 50 percent rating. Specifically, the Board notes that the Veteran’s credible and consistent reports of having daily and nightly panic attacks is consistent with being in near continuous panic. The Board also acknowledges the Veteran’s hypervigilance as a manifestation of his panic and anxiety. The Board finds that the Veteran became entitled to a 70 percent rating on August 15, 2017. The day he first endorsed passive suicidal ideations. These ideations in conjunction with near continuous panic warrants a 70 percent rating because the Veteran’s symptomatology caused occupational and social impairment in most areas, including work, school, social, judgment, thinking, and mood. A 100 percent rating is not warranted because evidence of the Veteran’s symptomatology does not show total occupational and social impairment. There is no evidence of, and the Veteran does not report, hallucinations or delusions. Further, there is no evidence that the Veteran is persistent danger to himself or others. Finally, there is no evidence that the Veteran’s behavior is grossly inappropriate nor disoriented to time or place. (Continued on the next page)   Accordingly, the Board finds that entitlement to a 70 percent disability rating, and no higher, is warranted, effective August 15, 2017. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.