Citation Nr: 21062780 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-35 277 DATE: October 12, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for service-connected post-traumatic stress disorder (PTSD) is granted beginning September 13, 2013. FINDING OF FACT The Veteran's PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2019, the Board remanded the claim with a directive to schedule an updated VA examination to determine the current nature and severity of the Veteran's PTSD. In December 2019, a VA examination was held. In his August 2021 appellate brief, the Veteran's representative stated that "the board failed to provide an adequate basis for its decision herein" but did not cite specific alleged deficiencies or details. Additionally, this appears to be referring to the November 2019 remand. The December 2019 VA examination was a comprehensive, in-person examination by a licensed mental health professional. The opinion was extensive and included a detailed rationale summarizing the medical treatment records and describing the Veteran's diagnoses, symptoms, severity, and occupational and social function impairments. The Board finds that there was substantial compliance with the Board's November 2019 remand instructions. Increased rating for PTSD The Veteran asserts that he is entitled to higher ratings during his period of appeal due to his chronic PTSD. The Veteran's PTSD is rated as 50 percent disabling as of March 13, 2013 and 70 percent disabling as of December 17, 2019, under DC 9411. 38 C.F.R. § 4.130. The Board finds that a 70 percent rating, but no higher, is warranted for the entire appeal period, beginning September 13, 2013. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The term "total" is defined as "whole, not divided; full; complete," and "utter, absolute." See Black's Law Dictionary, 1498 (7th ed. 1999). The April 2013 VAMC records note that the Veteran had visual hallucinations described as "shadows" which were getting worse. He reported poor sleep, hypervigilance, "jumpiness," low mood, high anxiety, and said he felt he was not under control. Guarded, irritable mood was noted. There was no indication of suicidal ideation or previous suicide attempts. A March 2014 VA examination record noted that the Veteran avoided loud noises and small places. His wife reported that he was "jumpy" and had been so since Vietnam service, but his intense mood was less severe/manageable when he was employed. She said she noticed that it was much more severe in the past year or so. The Veteran saw "shadows" when awake and it happened 2-3 times a week. He swung at the shadows because he feared they would hurt him. The Veteran once hid under the bed at a VA facility on July 4th in response to fireworks outdoors. His light sensitivity began in 1995 after a head injury but no loss of consciousness. The examiner stated that the Veteran's thoughts are logical, coherent but also that some suspiciousness/paranoia seems evident. The examiner also noted the Veteran's extreme caution and hypervigilance, that he was startled when first greeted, and that his hands were shaking during the examination, he would look toward door and swing that way in response to hallucinations. The Veteran reported visual dissociation/distortion, reaching out at a door because he felt it was coming out at him, not sure what was there when he walked out of a room. He denied suicidal ideation or depression. His attention/concentration, abstract reasoning, and memory are all normal, and his insight was rated as "fair". The Veteran reported good relationships with his wife and family. He had been married to his wife for decades and they had children, grandchildren, and great grandchildren. He stated that his family life was "good." He visited his grandchildren once or twice a week, stayed home, cleaned the house, and did jigsaw puzzles. He says no friends visit him at home, but he did have friends at work before retirement. The examiner noted occupational and social impairment with reduced productivity. Suicidal ideation was denied and no past history of suicide attempts. An August 2016 VA PTSD screen was positive, but the depression screen was negative. The Veteran reported "episodes of PTSD," including one at a fair two weeks ago. He said bright lights were a trigger of high anxiety symptoms. His PTSD was listed as uncontrolled. He denied suicidal ideation or previous suicide attempts. June 2017 VAMC records show the Veteran's reports that he could not stand to be around people or loud noises. July 2017 VAMC records show that the Veteran avoided public settings, his depression occurred often, and that he reported that counseling and medication only helped to a certain limit. He still struggled with constant sleep problems and visual hallucinations he described as shadows. September 2018 VAMC records show the Veteran wanted to try medication for "jumpiness" and that he did not feel well. He reported that he has gotten worse in last few months, heard things, was more anxious, and felt like he needs to "swing at things." He had a panic attack during his report for jury duty that was so severe he had to leave the courtroom and a relative had to be called to come pick him up. Anxiety also happened at night in response to dreams. His wife reported that he had taken swings at her in his sleep. The records indicate a diagnosis of major depression, and show exaggerated startle response, avoidance of things that remind him of trauma, recurrent memories of trauma, marked physiological reactions to trauma memories (heart pounding, trouble breathing, sweating), weight loss (12 pounds since April 2018), insomnia/hypersomnia (most nights he will "wake up swinging"). He had marked alterations in arousal and reactivity, irritable behavior, angry outbursts expressed as verbal/physical aggression, hypervigilance, exaggerated startle response, and sleep disturbance. October 2018 VAMC records notes that the Veteran was still having a startle reflex to normal stimuli. With treatment he felt like "the edge is off" but it "probably could be a little better." He was not seeing as many shadows. He kept busy working on his car, drawing, doing woodwork and puzzles. His thoughts were rational, nonlinear. No indications of suicidal or homicidal thoughts. December 2018 VAMC records show the Veteran described his marriage and relationships with his children as "good." August 2019 VA treatment records note the Veteran's comment that he was doing okay. His anxiety "flares up every once in a while, usually only when around people." He says that happens about 40 percent of the time when going out. He reported anxiety/panic attacks occurred after visits to the Elkhart County Fair, post-surgery, and during grocery shopping. He said he slept well, but his nightmares still persisted. He was married to the same person since 1974, had three children, and was retired from a manufacturing job. A December 2019 VA examination report noted PTSD with panic attack specifier. The report indicated that the Veteran remained married to his wife, and he spoke about their relationship "in very positive terms." He visited extended family every weekend, enjoyed playing with his grandchildren and those visits lasted two hours. If a child was crying or screaming, he left the room for a few minutes. He enjoyed working in his garage on a car, gardening, and doing embroidery. He socialized with three neighbors and went to a tractor pull event with one of them. He visited public places early in the morning to avoid crowds and noise. He was able to shop with his wife most weekends despite feeling anxious. Unexpected noise and bright lights cause him to "lose it." He was able to maintain employment with same company for 26 years. He stated that he retired earlier than he wanted to because he was caught shaking after seeing a bright light and his supervisor stated that he was concerned the Veteran would fall and get hurt. The Veteran and his wife both described his mood as "jumpy" and noted that lights, noise, crowds, and seeing shadows triggered and intensified his anxiety. The Veteran stated he must sit down and try to calm down when that happened and that he held his arms close to his body to avoid the urge to hit people. He reported three previous anxiety attacks in public (during grocery shopping, at a county fair, and during jury selection at a courthouse). He stated he saw shadows which made him draw back and make a fist. The MSE noted that the Veteran's attention, concentration, and memory were adequate and intact. The examiner reported normal speech, volume. He denied delusions, OCD behavior, mania, or suicidal or homicidal ideation. At the beginning of the examination the Veteran initially said he was in a good mood. But later on, the examiner observed him become startled, angry, and making a fist in response to unexpected noises (a chair moving, a person walking by an open door). Then the startled Veteran staggered back into his chair, appeared highly anxious, distressed, and began to cry. The examiner reported that the Veteran does not pose a threat to himself or others and that he has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. This is contemplated by the 70 percent criteria. February 2020 VAMC records note that the Veteran has been feeling more "jumpy" and seeing more shadows again. June 2020 VAMC records show the Veteran stated he is doing pretty well, responsive to treatment. However, he still is seeing shadows although not as often and still has a startle response but not as frequently. He reports keeping busy during Covid isolation, sewing masks for Veterans at a homeless center. Overall, the record shows that the Veteran has extreme anxiety, panic attacks, visual hallucinations, hypervigilance, social isolation and avoidance, inability to control his emotions, intense anger, occasional physical violence against his wife in his sleep, swinging at shadows he perceived as threats, and a fear of future violent outbursts despite his ongoing treatment. Although the Veteran is still able to maintain close relationships with his wife, children, and grandchildren and enjoy hobbies at home as well as venture out into public to go grocery shopping and visit public venues, he consistently, closely restricts these activities because he fears panic attacks which are unpredictable and loss of control if that happens. Although his concentration and memory are rated intact and adequate in the records, he often reports inability to recall, or attempts to suppress memory of, any details of his military service or trauma. The records also show that he has never been free of heightened startle response or hypervigilance at any time; these symptoms still linger despite treatment and improvement and reduction of other symptoms such as insomnia and irritability. The Veteran's statements, as well as those of his wife to his doctors are credible and highly probative because they are consistent with the medical treatment records and statements about his symptoms and PTSD severity made by his VA doctors, his spouse, and the VA examiner reports and opinions. The record supports a finding that for the entire appeal period, his PTSD has caused occupational and social impairment with deficiencies in most areas. Therefore, an initial 70 percent rating is granted, effective September 13, 2013. The Veteran has had persistent hallucinations, described as shadows, during most of the appeal period. Hallucinations are contemplated by the 100 percent criteria. However, the 100 percent criteria have not been met during the appeal period because the Veteran does not have both total occupational and total social impairment. As described above, the Veteran maintains positive relationships with his wife, children, and grandchildren. He is able to socialize with his neighbors. This shows that his social impairment is not total. A 100 percent rating for PTSD is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.