Citation Nr: 21000257 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-40 509 DATE: January 4, 2021 ORDER Entitlement to an initial 70 percent disability rating for posttraumatic stress disorder (PTSD) with depressive disorder not otherwise specified (NOS) and anxiety disorder NOS is granted. FINDING OF FACT The Veteran’s PTSD with depressive disorder NOS and anxiety disorder NOS more nearly approximated occupational and social impairment with deficiencies in most areas; the preponderance of the evidence does not show the Veteran suffered 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. CONCLUSION OF LAW The criteria to an initial disability rating of 70 percent for PTSD with depressive disorder and anxiety disorder not otherwise specified have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Codes 9411, 9413, 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1990 to February 1992. The Veteran also served in support of Operation Desert Storm from February 1991 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA). In an October 2014 rating decision, the Regional Office (RO) granted TDIU beginning January 30, 2013.The Veteran appealed to the Court. In an August 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the Board’s decision denying the issue of entitlement to an initial disability rating in excess of 50 percent for a service-connected psychiatric disability. The Court further noted that the issue of entitlement to a TDIU for the period prior to January 30, 2013 was not addressed by the Board and should be remanded as raised by the record. The Court remanded the issues back to the Board for readjudication in compliance with directives specified. In an April 2020 decision, the Board granted TDIU from February 2, 2012 through January 29, 2013. The increased rating issue was remanded in order to obtain additional medical records. A review of the file shows the RO obtained the Veteran’s current medical records and she underwent a VA examination. There has been compliance with the prior remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). These matters are properly before the Board for adjudication. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to a disability rating greater than 50 percent prior to May 8, 2020 and greater than 70 percent thereafter for PTSD with depressive disorder and anxiety disorder not otherwise specified. The Veteran contends her service-connected disability warrants an increased initial disability rating. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 v. Derwinski, 1 Vet. App. 589 (1991). The medical and 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. 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. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130 under the General Rating Formula for Mental Disorders. A 50 percent rating is assigned 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned when symptoms such 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent evaluation 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. Id. The Veteran was provided with a VA examination in November 2012. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, and sleep impairment. The examiner reported that the Veteran suffers from both occupational and social impairment with an occasional decease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner remarked that the Veteran’s occupational functioning was impacted, in part, by interpersonal difficulties. The Veteran reported she maintained a good relationship with her mother and aunt until the aunt’s death in 2007. She reported that she made friends at church, attending services three times per week, and lived with a male friend who provided her with care. The Veteran enjoyed reading, watching TV, sewing, and browsing social media. The Veteran arrived at the examination on time and appeared alert, oriented, coherent, and logical. She exhibited noticeable memory problems since her first heart attack in 2004. The Veteran’s speech was fluent, within normal limits, and there was no evidence of psychotic processes, psychomotor agitation, violent ideation, or suicidal ideation. The Veteran was cooperative, and her judgment appeared intact. The Veteran underwent an October 2013 VA examination. The examiner reported symptoms of anxiety, panic, hypervigilance, depressed mood, lack of motivation, and fleeting suicidal thinking. The examiner opined that the Veteran’s condition produced occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that she lived alone in Paris, KY. She was divorced four times; the last time was in 2005. She reported she was not dating anyone at the time of the examination. The Veteran reported that she has two sons and only communicates with the oldest one. Her youngest son refuses to speak to her. The Veteran reported she had a few friends and enjoyed spending time with them. She was active in her church, enjoyed sewing and making dresses to send to third world countries. The Veteran noted that she had a lot of interests, however, she was limited by physical ailments. The examiner opined that the frequency, severity, and totality of symptom endorsement did not warrant a PTSD diagnosis. Although, the Veteran’s symptoms may have met the criteria of PTSD during her initial C&P Exam, that was no longer the case. The examiner explained that it was not unusual for symptoms of mood and anxiety disorders (of which PTSD is one) to improve over time. Her symptoms do, however, appear to result in mild distress and impairment, more consistent with anxiety disorder NOS, depressive disorder NOS and personality disorder NOS. Most recently, the Veteran underwent a May 2020 VA examination. There, the examiner reported symptoms of 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 and long term memory, impaired judgment, 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, and neglect of personal appearance and hygiene. The examiner opined that the Veteran’s condition produced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran stated she purchased a new home in 2018 but due to physical and medical issues (injured right wrist, additional stent in her heart), she was unable to “keep up with it” and abandoned her home six months later. She had very limited social support, did not receive the help she needed and thinks she may declare bankruptcy as a result. The Veteran was homeless from March 2020 to May 2020, staying with her sister. Recently, she moved into a trailer with her husband and a relative who pays the rent. The Veteran is her relative’s caregiver during the day when her husband is at work. The Veteran stated that she was recently discharged from a VA facility for drug rehab (crack cocaine). She was under the care of a VA provider but no longer receives psychotherapy because her psychotherapist left in 2019. Veteran stated her medical/physical condition has deteriorated. She can no longer attend to most of her activities of daily living and that these limitations or restrictions contribute to her aggravation, frustration, anxiety, and depression when “my body does not function the way I want it to.” She obtained a caregiver 2 weeks ago after her release from the hospital where she was tested for COVID. The Veteran has panic attacks no more than three or four times per week, especially when she is out shopping or amongst crowds. The Veteran stated she stopped tobacco four years ago but resumed in 2010, smoking one pack a day. She sometimes drinks a case of beer per month, avoids hard liquor, and uses cannabis to facilitate sleep and reduce anxiety. She resumed crack cocaine in August 2019, about a gram a month. Her last reported use was one week before the examination. The Veteran was cooperative, anxious, coherent, goal-directed, and of average intelligence. She showed fair insight, average intelligence, and her ability to abstract thought was intact. The examiner noted the Veteran’s impulse control was within normal limits, but her judgment and memory were impaired. There was no evidence perceptual disturbances, suicidal ideation, or homicidal ideation. The Board finds that the Veteran’s psychiatric disability warrants an initial 70 percent disability rating but no higher as the Veteran’s PTSD with depressive disorder NOS and anxiety disorder NOS more nearly approximated occupational and social impairment with deficiencies in most areas. In this regard, the evidence does not demonstrate the level of impairment more nearly approximating a 100 percent rating. Specifically, the evidence of record does not show symptoms such as gross impairment in thought processes or communication, persistent delusions of 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 relative, own occupation or own name. Instead, the evidence clearly reflects that the Veteran maintained a supportive relationship with her sister and other family members. The Veteran lives with her husband and cares for a family member in the home they share together. Furthermore, neither VA medical records nor the VA examination reports found evidence of 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Accordingly, based on the totality of the record, the Board finds that total social and occupational impairment have not been shown. Therefore, based on a complete review of the record and on the totality of the evidence, the Board finds that the Veteran’s service-connected PTSD with depressive disorder NOS and anxiety disorder NOS does not more nearly approximate a higher 100 percent disability rating. Accordingly, the preponderance of the evidence is against the assignment of a rating in excess of 70 percent. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.