Citation Nr: 21062698 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-11 648 DATE: October 12, 2021 ORDER Entitlement to a 100 percent disability rating for posttraumatic stress disorder (PTSD) prior to May 28, 2021, is granted. FINDING OF FACT Resolving reasonable doubt in his favor, and considering his competent and credible reports and testimony of symptoms, the Board finds that the evidence is at least evenly balanced for and against (in "relative equipoise") a 100 percent rating for PTSD throughout the appeal period. CONCLUSION OF LAW The criteria for a 100 percent rating for PTSD prior to May 28, 2021, have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2003 to April 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that increased the Veteran's disability rating for PTSD to 50 percent, effective October 8, 2015 (date of the Veteran's intent to file). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In March 2021, the Board granted a 70 percent disability rating for PTSD and remanded entitlement to a 100 percent rating and entitlement to a total disability rating based on individual unemployability (TDIU). In a March 2021 rating decision, the RO granted entitlement to TDIU for the entire appeal period. In a June 2021 rating decision, the RO granted a 100 percent disability rating for PTSD effective May 28, 2021. Accordingly, the only issue on appeal is entitlement to a 100 percent rating prior to May 28, 2021. Entitlement to a 100 percent disability rating for PTSD prior to May 28, 2021, is granted. The Veteran contends that he is entitled to a higher rating for his PTSD. He has been assigned a staged rating and is currently rated as 70 percent disabling for the period prior to May 28, 2021. As will be discussed in detail below, the Board finds that a 100 percent rating is warranted. 38 C.F.R. §§ 4.7, 4.130, DC 9411. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability's severity, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As mentioned above, a staged rating has already been assigned. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency, and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran has been rated under DC 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, the criteria for a 70 percent rating are 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 of 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. 38 C.F.R. § 4.130, DC 9411. In an increased rating claim, if it is factually ascertainable that an increase in disability occurred within the one-year period prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400(o)(2). "[A]n increase in a veteran's service-connected disability must have occurred during the one-year period prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This is the so-called one-year "look-back" period. Because the Veteran filed his increased rating claim on October 8, 2015, the Board will determine if it is factually ascertainable that the Veteran's PTSD increased at any point between October 8, 2014, and May 27, 2021. During May 2015 VA treatment (through the Vet Center), the Veteran reported being able to stay calm and not get mad while driving; he managed to keep his road rage under control and denied any suicidal or homicidal ideation. During February 2016 VA treatment, he denied suicidal ideation but admitted to being willing to hurt others if he is mad enough. In December 2014, the Veteran lost his dwelling place and lived out of a hotel. See September 2016 personal statement. His schoolwork became more of a nuisance than a passion and dealing with other students became a headache. He would have two to three drinks with his lunch before dealing with students. He had a lack of real desire to socialize with anyone. His hobbies were reduced to television, videogames, and books, since those did not require his interaction with others. He described driving as a "massive contention" since he follows traffic laws and regulations and expects the same from other drivers; when they do not follow the laws and regulations, they often receive "multiple gestures and screaming." It is not unheard of for him to wake up and find out that he was throwing something in his sleep. He described "momentary lapses" in his self-control but enough self-control to hit inanimate objects rather than a living being. It is not uncommon for him to get frustrated and be unable to coherently convey his thoughts, resulting in "nonsensical gibberish" to other people. The Veteran's mother stated that you could expect to receive "an unexpected hit on an arm or leg" because of something that was in the Veteran's personal space. See September 2016 statement in support of claim. Because of his long reach and physical strength, this requires a "bubble" of personal space for the safety of everyone. Many things set off his anxiety and depression, and his anxiety manifests in many ways: anger, cursing, ranting on the same subject for an extended period of time (up to several hours or days at a time). His mother described him as becoming "more and more of a hermit" and spending less time with friends. During his November 2016 VA examination, the Veteran denied having much contact with people other than his mother and a close friend. He stated that he "detest[s] people" and prefers to keep to himself. He goes grocery shopping around 1 AM in order to avoid people. He spends his days playing video games, reading books, and watching movies. Although he attended a Magic the Gathering event in Portland, he described that event as stressful and paid extra money to have a table to himself in a secluded area "to cope with the stress of the amount of people." The Veteran was asked to leave the place he was renting because he was "too negative." He reported that there was one time he returned home and felt triggered by marijuana smoke and fireworks and grabbed a knife to hold for comfort; he almost accidentally stabbed a roommate when the roommate approached him. He began drinking more frequently before teaching classes in order to be able to interact with the students. The Veteran had persistent, distorted cognitions about the cause or consequences of a traumatic event, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement, and persistent inability to experience positive emotions. The examiner noted self-destructive/reckless behavior and irritable behavior/angry outbursts typically expressed as verbal or physical aggression toward people or objects. In August 2017, the Veteran reported being socially withdrawn, except for one close friend who lives nearby. He lived a sedentary lifestyle, spending a majority of his time gaming and occasionally reading. He was primarily raised by his mother after his parents divorced and reported being close to her; he is not close to his father or his half-siblings (whom he did not meet until he was in his 20s). During November 2017 VA treatment, the Veteran denied an onset or worsening of depression or anxiety but did report having thoughts of hurting "stupid drivers," especially after sometimes following them home. Although he had plans to hurt them, he had no actual intention of doing so unless they got too close and then "it is their fault." During December 2017 VA treatment, he reported problems with panic symptoms and increased stress at home, specifically with an attention-seeking uncle who was visiting. He continued to complain of anger with road rage. During his February 2021 Board hearing, the Veteran reported intermittent suicidal ideation. He generally tries to redirect the anger he feels towards people from homicidal ideation to suicidal ideation. He throws rocks at the windows of cars when drivers do not obey the rules of the road. His mom helps him diffuse situations and restricts him from acting on things, but generally the slightest provocation can result in him throwing an object or a punch "at almost anyone." He has swung at his mother, uncle, and grandmother and his thrown a knife at the wall during his sleep. The Board has concluded that it is not factually ascertainable that a 100 percent disability rating is warranted during the one-year period prior to filing the claim (October 8, 2015). Although there is evidence that the Veteran lost his dwelling place and lived out of hotel in December 2014, a May 2015 VA treatment record included his report that he was able to stay calm and not get mad while driving; he managed to keep his road rage under control and denied any suicidal or homicidal ideation. However, beginning with the date of the appeal, the Board finds the severity, frequency, and duration of the Veteran's symptoms more nearly approximate the symptoms contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. He has a consistent history of severe symptoms, including social isolation and thoughts of harming others. VA treatment records throughout the appeal document frequent homicidal ideation coupled with road rage. While the Veteran does not exhibit symptoms such as illogical speech, disorientation, or memory loss for names of close relatives or own name, the Board notes that the symptoms list in the general rating formula is non-exhaustive and finds that the overall severity of the Veteran's symptoms, particularly his history of outbursts of anger and homicidal ideation warrant a 100 percent rating. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.