Citation Nr: 21004972 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-63 441 DATE: January 28, 2021 ORDER An initial rating in of 70 percent, but no more, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The competent and probative evidence shows that the Veteran’s PTSD, is manifested as occupational and social impairment with deficiencies in most areas, but no higher, throughout the rating period on appeal. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no more, for PTSD are met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, DC 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to August 1995, and from January 2009 to December 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).   In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The undersigned left the record open for 30 days. Within 30 days of the hearing, the Veteran submitted new evidence, such as a lay statement from the Veteran’s wife and private mental health note from September 2020 and explicitly waived RO consideration of such evidence. The Board has considered this evidence in this decision. The Board notes that in the April 2016 NOD, the Veteran also disagreed with the April 2016 rating decision’s denial of the claim for service connection for sarcoidosis (claimed as lung condition). However, a November 2016 rating decision granted service connection for sarcoidosis; therefore, the claim for service connection for sarcoidosis is no longer on appeal. In November 2018, the Veteran filed his RAMP Opt-in election form. See 11/20/2018 RAMP Opt-in Election. However, his request could not be processed because he did not have a pending appeal that qualified for processing under RAMP. See 11/29/2018 Correspondence. As such, it is processed under the legacy appeals system. An initial rating in excess of 50 percent for PTSD. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 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. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). In pertinent part, under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 50 percent rating is warranted if the disability is productive of 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. 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 work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The record showed that the Veteran was assigned an initial disability rating of 50 percent in a December 2015 rating decision that granted service connection, effective May 29, 2015. As noted above, in order to warrant a higher rating, the Veteran’s disability would have to be manifested by occupational and social impairment with deficiencies in most areas. The Veteran contends that he is entitled to a 70 percent disability rating because he experiences suicidal ideation and difficulty at work and with family relationships. See 4/19/2016 NOD. Additionally, his wife stated that they are having marital problems and that the Veteran has threatened to take his life on multiple occasions. Additionally, the Veteran forgets to eat and bathe, acts out with violence, and is socially withdrawn, unpredictable, and impulsive. See 9/12/2020 Buddy / Lay Statement. Further, the Veteran testified that he experiences nightmares, night sweats, violent outbursts, social withdrawal, constant stress, hypervigilance, paranoia, memory loss, and suicidal ideation 2 or 3 times per month. In addition, the Veteran testified that he has overdosed on several occasions. See 9/3/2020 Hearing Transcript, at pages 2-6, 8. After review of the relevant medical and lay evidence, the Board finds that a rating in excess of 50 percent for PTSD, is warranted. An April 2016 private Disability Benefits Questionnaire (DBQ), noted that the Veteran was diagnosed with PTSD and exhibited suicidal ideation, difficulty working with people, family issues, and relationship problems. The DBQ also noted an occupational and social impairment manifested as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, the Board notes that this questionnaire is not complete, nor is it signed or dated. Without knowing the author, it is difficult to know if the author had any knowledge, training, or experience in treating and/or assess mental health disorder. Therefore, it lacks competence and has no probative value. However, other pieces of probative, competent evidence of record allow the Board to assemble the Veteran’s disability picture. A January 2017 private DBQ from Dr. J.L., Ph.D., diagnosed the Veteran with PTSD and other specified depression disorder. The Veteran’s symptoms were noted to include a depressed mood, anxiety, a flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and suicidal ideation. Additionally, it was noted that the Veteran had ongoing divorce battles. Finally, Dr. J.L. opined that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See 1/24/2017 Disability Benefits Questionnaire (DBQ) – Veteran Provided. A more recent August 2020 private DBQ from Dr. J.L., Ph.D., diagnosed the Veteran with PTSD, severe alcohol use disorder, and moderate major depressive disorder. The Veteran’s symptoms were noted to include a depressed mood, anxiety, a chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty establishing effective work and social relationships. Additionally, he had an impaired judgment and abstract thinking, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, and suicidal ideation. Further, he had an impaired impulse control, persistent danger of hurting himself or others, and an intermittent inability to perform activities of daily living. Finally, Dr. J.L. opined that the Veteran had an occupational and social impairment with deficiencies in most areas. See 8/21/2020 VA examination. A September 2020 private treatment note showed that the Veteran made a suicide attempt by oxycodone overdose. Additionally, a mental status examination noted that the Veteran was hypervigilant, had a depressed mood and a mildly dysphoric affect, and his passive suicidal ideation persisted. Furthermore, the Veteran stated that he was fired from his job due to problems with coworkers due to his PTSD irritability symptoms. However, the examination also noted that the Veteran’s speech had a normal rate, volume, and tone. Additionally, his thoughts were logical, linear, and goal directed with no delusions or auditory or visual hallucinations. See 9/23/2020 Medical Treatment Record – Non-Government Facility, at pages 1 and 2. Based on the totality of the evidence above, the Board finds that the Veteran’s condition most nearly approximates the criteria for a rating of 70 percent for the appeal period. In this regard, the record generally showed that the Veteran had a depressed mood, anxiety, a flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and suicidal ideation. After reviewing the relevant lay and medical evidence, the Board finds that the competent and probative evidence tends to support a finding of an occupational and social impairment with deficiencies in most areas. The Board finds that the preponderance of the evidence weighs against a higher, 100 percent, rating. The August 2020 DBQ report did not mark the Veteran has having total occupational and social impairment. See also January 2017 DBQ (noting occupational and social impairment with occasional decrease in work efficiency). The 2020 DBQ noted that the Veteran has mild marital discord. The Board finds such evidence tends to weigh against total social impairment. The Board recognizes the Veteran’s and his wife’s contentions regarding his worsening PTSD symptoms. See 4/19/2016 NOD; see also 9/12/2020 Buddy/Lay Statement; 9/3/2020 Hearing Transcript, at pages 2-6, 8. They are competent to make those assertions based on their observable symptomatology and the Board finds them credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has consider these statements, finds them competent and credible to describe the Veteran’s observable symptomatology, and has considered them as part of the increase to a 70 percent rating. The Board also acknowledges that the Veteran exhibited some symptomatology, provided as examples for the 100 percent rating, such as persistent danger of hurting self or others. However, the weight of the competent, probative evidence shows the Veteran’s overall symptomatology reflects a frequency, severity, and duration commensurate with the criteria for a rating of 70 percent disabling. In sum, after review of all the relevant competent medical and lay evidence of record, the Board finds that the preponderance of the evidence reflects that the Veteran’s disability was manifested as occupational and social impairment with deficiencies in most areas, warranting an increase to a 70 percent rating for the whole period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.