Citation Nr: 21003482 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-22 349 DATE: January 21, 2021 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) throughout the entire appeal period is granted. FINDING OF FACT For the entire appeal period, the Veteran’s service-connected PTSD symptoms more nearly approximate occupational and social impairment with deficiencies in most areas, but have not resulted in total social and occupational impairment. CONCLUSION OF LAW The criteria for a rating of 70 percent for PTSD have been met throughout the appeal period. 38 U.S.C. § 1155; 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 Army from March 1970 to January 1976 and from January 1991 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was previously before the Board in August 2019, when entitlement to a rating in excess of 30 percent for PTSD was denied. The Veteran appealed the denial of the claim to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Partial Remand (JMPR). In July 2020, the Court granted the JMPR, vacating the portion of the Board decision denying entitlement to a rating in excess of 30 percent for PTSD, and remanded the case for further proceedings. The case has been returned to Board at this time for appellate review. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, which is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In regards the psychiatric disorders, the United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, “serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas;” that is, “the regulation . . . requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vasquez-Claudio, 713 F.3d at 117-18. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission.” 38 C.F.R. § 4.126(a). The Board must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination.” Id. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 Entitlement to a rating in excess of 30 percent for PTSD. The Veteran asserts that his PTSD symptoms are more severe than what the current rating reflects. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under this code, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and, memory loss for names of close relatives, own occupation, or own name. Id. In this case, the Veteran submitted a thorough evaluation provided by his private psychologist in November 2020. The psychologist noted findings of severe depression and anxiety, which the Veteran reported feeling most of the day nearly every day. The Veteran also reported a diminished interest/pleasure in daily activities, frequent insomnia, daily fatigue, diminished ability to think or concentrate, feelings of worthlessness and self-loathing, and displayed deficits in short-term memory. As supported by incidents noted in the record, the Veteran is frequently irritable and has angry, sometimes violent, outbursts with little provocation. The Veteran has also consistently reported hating crowds, feeling hypervigilant and socially withdrawn. The psychologist stated that these symptoms have had a significant and negative impact on his daily functioning, especially on his ability to establish and maintain social relationships. Moreover, the Veteran stated that he gets emotionally disturbed on a regular basis due to the frequent flashbacks, intrusive memories, and nightmares, which interfere with his daily activities and cause avoidant behaviors. Lay statements from the Veteran’s wife attested to the changes in the Veteran’s mood and behavior upon his return from Vietnam, including being constantly depressed and angry. The Veteran also reported an inability to experience positive emotions, feeling detached and estranged from others, as well as neglecting his personal hygiene ever since his return from Vietnam. The Veteran also reported suicidal ideation, stating he “is not afraid to die” and “believes he will commit suicide someday.” The Board notes that the Veteran has reported recurrent suicidal ideation in VA treatment records throughout the appeal period, including during his December 2014 VA examination, when he noted experiencing suicidal ideation two weeks prior, and during his March 2018 examination, when he stated “I’m ready to leave this life.” Furthermore, the Veteran stated he had two panic attacks in the last two weeks in an October 2015 VA treatment record, in addition to multiple reports in the record of experiencing panic/anxiety attacks in the past. The Board finds the thorough evaluation report submitted by the Veteran’s private psychologist to be the most probative regarding the severity of the Veteran’s symptoms throughout the appeal period. The Veteran’s symptoms have been characterized by his treating psychologist as chronic and severe, manifested by suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, near-continuous panic or depression, and inability to establish and maintain effective relationships. Based on the foregoing evidence, the Board finds that the Veteran’s symptomatology more nearly approximates the criteria for a 70 percent evaluation for the entire appeal period. The Veteran consistently reported having a depressed and angry mood, anxiety, panic attacks, sleeping only 2/3 hours a night due to nightmares and flashbacks, impairment of short/long-term memory and concentration, periods of suicidal ideation, and hypervigilance. The Board finds that these symptoms more nearly approximate a level of occupational and social impairment with deficiencies in most areas such as work, school, family and social relationships. A 100 percent evaluation, however, is not warranted at any point during the appeal period because the evidence of record does not show that the Veteran’s PTSD manifested in total occupational and social impairment. For instance, the record does not show the Veteran’s symptoms were manifested by gross impairment of thought processes, persistent danger to self and others, grossly inappropriate behavior, inability to remember names of close relatives, occupation or own name, or other symptoms of similar severity which would warrant a 100 percent rating. Throughout the record, the Veteran’s appearance was indicated to be appropriate, speech was within normal limits, his attention and concentration were intact, his thought processes were logical/goal-directed/linear, he was oriented as to all spheres, his memory was generally intact, and he was shown to be able to manage his financial affairs and continue working delivering recreational vehicle parts locally. Therefore, the Board finds that the Veteran is entitled to a 70 rating, but not higher, for PTSD, throughout the entire appeal period. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.