Citation Nr: 21002910 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 18-40 952 DATE: January 19, 2021 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) from March 16, 2017, is granted. FINDING OF FACT For the entire period on appeal, the Veteran’s PTSD manifested occupational and social impairment, with deficiencies in most areas including work, family relationships, thinking, and mood. The Veteran specifically exhibited symptoms of suicidal ideation. CONCLUSION OF LAW The criteria for a rating of 70 percent for PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to May 2006. He served in the Southwest Theater of Operations and was awarded the Combat Action Badge. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran filed an application for an increased evaluation for his PTSD, which was then evaluated at 30 percent. The application was incomplete, and so the Veteran refiled in September 2017. In January 2018 the RO granted an increased 50 percent rating for PTSD, effective September 27, 2017. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. (In most cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later.) The Veteran filed a Notice of Disagreement (NOD) in February 2018, seeking an earlier effective date in March 2017 (citing his first application) and a rating of 70 percent for his PTSD. In July 2018 the Decision Review Officer (DRO) granted an earlier effective date of March 16, 2017, but kept the evaluation of the Veteran’s PTSD at 50 percent. The appeal then went to the Board. In June 2019, the Board denied a rating in excess of 50 percent for the Veteran’s PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In October 2020 CAVC issued an Order that granted a Joint Motion for Partial Remand (JMPR). In the JMPR, the parties moved the court to vacate and remand the portion of the Board’s decision that denied the issues on appeal. (All other issues in the June 2019 decision were granted; the issue of an increased rating for PTSD is the only one remanded by CAVC.) The October 2020 JMPR found that the Board failed to address evidence favorable to the Veteran in its June 2019 denial. Specifically, the parties agreed that the Board erred in assigning a rating of 50 percent for PTSD, without addressing evidence suggesting that the Veteran experienced suicidal ideation, a symptom associated with a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The JPMR instructed the Board to “reassess the October 2017 PTSD examination and consider whether Appellant’s ‘what-if’ thoughts of suicide could be considered suicidal ideation.” During the pendency of this appeal, the RO granted a 70 percent evaluation for the Veteran’s PTSD, effective March 2, 2020. Entitlement to Increased Rating for PTSD Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. PTSD is evaluated pursuant to the General Rating Formula for Mental Disorders. A 50 percent evaluation is warranted when 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted when 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; 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 work like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if the Veteran has 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. Suicidal ideation is a unique symptom when it comes to evaluating mental disorders. It appears only at the 70 percent level, with no analogue at lower evaluations, and covers a wide range of thoughts and behaviors. “Suicidal ideation does not require suicidal intent, a plan, or prepatory behavior.” Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Even passive thoughts of one’s own death can result in occupational and social impairments in most areas. Id. The reference to “what if” thoughts of suicide comes from a note by a psychologist during the October 2017 VA Examination, which states in relevant part: [The Veteran] denied pervasive feelings of guilt, but he noted that he has some survivor’s guilt. He also denied pervasive feelings of worthlessness, but he noted that he still feels that way sometimes. He denied current suicidal ideation, intent, or plans. He related that he has had some “what if” thoughts, but he denied any active plans or intent to harm himself. He also denied current homicidal ideation, intent, or plans. He did not describe gross manic symptoms or hallucinations, but he noted that he sees things out of the corner of his eye. He did not describe gross delusions, but he noted that he tends to be very suspicious of others. The Board finds that the most straightforward interpretation of the Veteran’s statement that he has “‘what if’ thoughts” is that he has passive thoughts of his own death, without active planning. This would follow the pattern he shows when describing his other symptoms; he denies “pervasive” feelings of guilt or worthlessness, and “gross” hallucinations or delusions, but describes experiencing all these symptoms to at least some degree. (By contrast, the Veteran denies homicidal ideation without any caveats.) The October 2017 examination also includes a copy of a suicide risk screen conducted in July 2013. During this screen, the Veteran denied suicidal ideation and told the examiner that “[w]hen he first realized he had problems he decided he is here for his family and not himself.” While this comment is recorded positively as a protective factor against the Veteran’s suicide risk, the Board finds it telling that the Veteran felt the need to “decide” not to harm himself, and that he went on to cite external factors in that decision. It is true that the Veteran has denied “suicidal ideation” when presented to him in those words. However, “suicidal ideation” is an emotionally charged term that many reflexively associate with active consideration of suicide. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). When the Board examines statements the Veteran has made in his own words, it finds enough evidence to say that he has thoughts of his own death – not to the point of being a “persistent danger to himself,” as contemplated by the 100 percent rating, but enough to say he experiences “suicidal ideation” as defined by VA. Id at 19. In addition, the Veteran has demonstrably suffered occupational impairment due to impaired impulse control and difficulty in adapting to stressful circumstances. He reported to the October 2017 VA examiner that he was let go from a job in 2010 or 2011 due to a poor relationship with his manager. At his next job, he was suspended following a confrontation at work, and left to take a different job during the suspension. At the time of the October 2017 examination, he reported that while he was gainfully employed and generally doing well at his two jobs, he got into “about weekly” arguments with a co-worker and “d[id] not try to get along” with people at work. The Veteran’s tendency to “pop off quickly,” as he describes it, has also caused tension and lack of intimacy in his marriage. However, a higher, 100 percent rating is not appropriate at any time during the period on appeal, as there is no 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 mental and personal hygiene), or disorientation to time or place. In sum, the Board finds that a rating of 70 percent for PTSD, but no higher, is warranted for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. The effective date of entitlement is March 16, 2017, the date of the Veteran’s application for an increased rating, as it is not ascertainable that the increase in his disability occurred on a date within the prior year. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shermila Sundquist 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.