Citation Nr: 21003027 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-35 179 DATE: January 19, 2021 ORDER Entitlement to an initial increased rating of 50 percent for post-traumatic stress disorder (PTSD), effective from November 15, 2012, to March 12, 2020, is granted. Entitlement to a rating of 70 percent for PTSD is granted beginning March 12, 2020. FINDINGS OF FACT 1. From November 15, 2012, to March 12, 2020, the Veteran’s service-connected PTSD was manifested by symptoms demonstrating occupational and social impairment with reduced reliability and productivity. 2. From March 12, 2020 onward, the Veteran’s service-connected PTSD was marked by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to March 12, 2020, the criteria for an initial rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130 Diagnostic Code 9411. 2. Since March 12, 2020, the criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130 Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1965 to July 1967, including foreign service. For his meritorious service, he was awarded the Vietnam Campaign Medal, the Vietnam Service Medal, and one Overseas Service Bar, among other decorations. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to PTSD at a 30 percent disability rating, effective November 15, 2012. The Veteran appealed seeking a higher rating, and in December 2019 the Board remanded the issue for further development. In June 2020, after obtaining a new examination of the Veteran in compliance with the Board’s remand instructions, the RO issued a Supplemental Statement of the Case (SSOC). In the SSOC the RO granted the Veteran a 50 percent rating for PTSD effective March 12, 2020, but preserved the initial rating of 30 percent from November 15, 2012, to March 12, 2020. Evaluation of PTSD generally Disability evaluations are determined by comparing the manifestations of a disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be determined, the level of occupational and social impairment resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If a Veteran’s level of impairment has changed, separate ratings may be assigned for separate periods of time, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). PTSD is rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of the Veteran’s symptoms; however, VA must consider all symptoms of a claimant’s disability that affect his level of impairment, including those not specifically listed. The criteria for 30 percent, 50 percent, 70 percent, and 100 percent ratings for PTSD are: 30 percent: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 50 percent: 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 establishing effective work and social relationships. 70 percent: 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); inability to establish and maintain effective relationships. 100 percent: Total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Evaluation for PTSD from November 15, 2012, to March 12, 2020 After a longitudinal review of the entire record, the Board concludes that the severity, frequency, and duration of the Veteran’s PTSD symptoms most nearly approximate the criteria contemplated by the 50 percent rating prior to March 12, 2020. 38 C.F.R. § 4.7. The Veteran was afforded a VA psychiatric examination in June 2013. During this examination, the Veteran reported that he had been married for 45 years, and had three children and eight grandchildren. The Veteran said that he “maintains regular contact with his family and spends time with his children and grandchildren.” He also said that he belongs to the American Legion and regularly socialized with other veterans, “playing golf,” “smoking cigars,” and “having a glass of wine.” (The Veteran denied excessive drinking.) The Veteran reported getting angry “a lot,” and said his family relationships had been strained because of his frequent verbal outbursts. The Veteran denied getting physical during any of these outbursts. The Veteran reported frequent nightmares, difficulty falling asleep, and “constant waking up in the middle of the night and talking in his sleep.” The June 2013 examiner said these sleep disturbances caused the Veteran to be tired and irritable during the day, which interfered with his ability to function normally and his potential employability. In addition, the Veteran had to sleep separately from his wife, to avoid waking her up in the night; he reported this had caused strain in their marriage. The Veteran experienced recurrent flashbacks and vivid memories of traumatic events in Vietnam. The June 2013 examiner reported that the Veteran “got visibly upset and tearful” during the examination interview, and said “it appeared that the Veteran dissociated from what was happening in the exam room for a few moments and was taken to the battlefield.” However, the Veteran was unable to recall some specific details of traumatic events; the examiner found that the Veteran “tends to suppress certain memories of Vietnam as they are too painful for him to recall.” The examiner noted that the Veteran avoided activities and places that reminded him of his trauma, and that his range of activities was limited as a result. The Veteran was particularly uncomfortable with crowds and enclosed spaces; shortly before the June 2013 examination, he had to leave his grandson’s graduation early. The Veteran was easily startled by loud noises, such as neighbors mowing the lawn, and was noted by the examiner as having an exaggerated startle response. At a second examination in April 2015, the Veteran gave a similar account of his daily life. He said that he felt “some social withdrawal,” and had turned down invitations to family reunions and dinners. The Veteran continued to socialize at the American Legion post, and said he felt more comfortable around other Vietnam Veterans. The examiner noted that the Veteran experienced symptoms including “constant” intrusive memories of his deployment; “multiple cognitive distortions regarding trust, safety, and politics;” markedly diminished interest or participation in significant activities; feelings of detachment and estrangement from others; irritable behavior and angry outbursts with little to no provocation; hypervigilance; exaggerated startle response; sleep disturbance; depressed mood; and anxiety. The Veteran presented at the April 2015 examination with an “anxious and depressed” mood and a “slightly restricted” affect. The examiner determined that the Veteran’s psychiatric symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms that are controlled by medication. The Board finds that, prior to March 12, 2020, the Veteran experienced occupational and social impairment with reduced reliability and productivity due to such symptoms as limited affect, disturbances in motivation and mood, flashbacks, and difficulty establishing and maintaining social and work relationships. While the April 2015 examiner opined characterized the Veteran’s symptoms as mild or transient, the objective evidence and lay statements indicate that his symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. Thus, based on the forgoing, the Board finds that a 50 percent disability rating provides the criteria that best describe the level of social and occupational impairment observed by the June 2013 and April 2015 VA examiners during the appeal period prior to March 12, 2020. Conversely, the Board also concludes that a disability evaluation in excess of 50 percent is not warranted for the Veteran’s service-connected PTSD, prior to March 12, 2020. 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria for the increased rating of 70 percent requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. While the Veteran’s symptoms have caused him to feel distant from others and put strain on his family relationships, he has maintained meaningful social connections; he reported visiting his children once per week, and socializing at the American Legion post or cigar shop nearly every day. The Veteran has difficulty controlling verbal outbursts, but he has never been physically violent, nor has he had any trouble with the law. The April 2015 examiner reported that the Veteran arrived at his appointment on time, was fully alert and oriented, and was a reliable medical historian. The June 2013 and April 2015 examinations both reported that the Veteran was capable of managing his own financial affairs. The Veteran denied suicidal ideation at both examinations, and at a depression screening conducted at a VA Medical Center in October 2019. The June 2013 and April 2015 examiners’ findings, and the Veteran’s own reports, are inconsistent with a 70 percent rating for this period. Additionally, a rating of 100 percent is not warranted as the evidence does not reflect the Veteran exhibited 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, or memory loss for names of close relatives, own occupation, or own name causing a total occupational and social impairment. While there may have been day-to-day fluctuations in the manifestations of the Veteran’s service-connected PTSD, the evidence shows no distinct period of time, prior to March 12, 2020, during which the Veteran’s service-connected PTSD varied to such an extent that a rating other than 50 percent would be warranted. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluation for PTSD from March 12, 2020 to present The Veteran had another VA examination in March 2020. The Veteran said he was still married, but that he and his wife do not communicate much and still sleep apart. The Veteran reported a good relationship with his children, and said he visited one of his daughters once every two weeks. The Veteran reported spending “almost every day going to a cigar club in town where he socializes with friends, some of whom are fellow veterans.” The Veteran continued to experience symptoms noted in past exams, but the examiner also listed new symptoms: difficulty understanding complex commands, and suicidal ideation. Suicidal ideation is a uniquely significant symptom when evaluating mental disorders such as PTSD. Unlike many symptoms listed in Diagnostic Code 9411, it does not have a “less severe” analogue at the 10 percent, 30 percent, and 50 percent ratings; thoughts of suicide are specifically associated with the 70 percent and 100 percent ratings for PTSD. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Thoughts of suicide can cause impairments in most areas of functioning, even if – as here – the Veteran’s suicidal ideation is “passive.” Id. The Board therefore finds that the Veteran is entitled to a rating of 70 percent for his PTSD since March 12, 2020. Although an increased 70 percent rating is warranted, the preponderance of the evidence is against a finding of entitlement to an evaluation exceeding 70 percent at any time throughout the duration of the appeal. While the Veteran need not have all or even most of the listed symptoms in order to warrant a 100 percent evaluation, his psychiatric symptomatology does not demonstrate total social and occupational impairment. See Mauerhan v. Principi, 16 Vet. App. 436. The evidence of record does not indicate that the Veteran’s PTSD has been manifested by such symptoms as gross impairment in thought processes or communication, disorientation to time or place, or memory loss for names of close relatives or his own name. In the March 2020 VA examination, the Veteran denied hallucinations and homicidal ideation. The Veteran once again presented to the examination as alert and oriented, his thoughts were described as “linear and goal directed,” and his affect was “congruent with content.” The Veteran continues to maintain good relationships with his children and with Vietnam Veterans in his community. The evidence indicates that the Veteran remains able to function independently, perform activities of daily living, and manage his own finances. Therefore, the Board finds that the Veteran’s PTSD since March 12, 2020 more closely corresponds to the requirements for a 70 percent evaluation, and does not more nearly approximate a 100 percent rating. 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.