Citation Nr: 21064958 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 13-29 475 DATE: October 22, 2021 ORDER Entitlement to an initial 70 percent disability rating, but no higher, for posttraumatic stress disorder (PTSD) prior to June 3, 2011 is granted. FINDING OF FACT Prior to June 3, 2011, the Veteran's symptoms and overall impairment caused by his service-connected PTSD more nearly approximated occupational and social impairment with deficiency in most areas, but total occupational and social impairment was not shown. CONCLUSION OF LAW The criteria for entitlement to an initial 70 percent disability rating, but no higher, for PTSD prior to June 3, 2011 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1985 to August 2010. The Board of Veterans' Appeals (Board) most recently issued a decision denying the Veteran's claim of entitlement to an initial disability rating in excess of 50 percent for his service-connected PTSD prior to June 3, 2011 in July 2020. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2021, the Court issued an Order which vacated and remanded the Board's July 2020 decision pursuant to the terms of a Joint Motion for Remand. Entitlement to an initial 70 percent disability rating, but no higher, for PTSD prior to June 3, 2011 is granted. The Veteran maintains entitlement to an initial disability rating in excess of 50 percent for his service-connected PTSD prior to June 3, 2011. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a Veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation should be applied to the veteran's disability, 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. The Veteran's PTSD is rated under Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty understanding complex commands, impairment of short and long term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned 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 that is 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned 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, or for the veteran's own occupation or name. 38 C.F.R. § 4.130. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Turning to the evidence of record, the Veteran attended a VA examination in October 2010. There, the Veteran arrived on time and was appropriately dressed and groomed. No remarkable affect, cognitions, or behaviors were observed. He was socially appropriate and oriented to time, date, and place. He was pleasant and cooperative and answered questions without difficulty. His speech was within normal parameters. His cognitions were linear and logical. He reported that he had undergone treatment for PTSD during his active duty service from January 2008 to May 2010. The Veteran reported that during service he was exposed to combat situations, including multiple IEDs, multiple mortar attacks, and small arms fighting. He stated that he witnessed other soldiers being wounded, killed, and blown apart. He also noted that he was involved in digging up and documenting mass graves following massacres. The Veteran discussed having reexperiencing symptoms, including intrusive, distressing memories, thoughts, and dreams when he saw things that reminded him of in-service events. He indicated that he also had flashbacks and delusions of these events, and experienced distress and physiological reactivity at exposure to internal or external cues that symbolized them. The Veteran also reported that he actively attempted to avoid certain thoughts, activities, or places that reminded him of his in-service experiences. He stated that he had diminished interest in activities and felt detached from others. The Veteran also endorsed symptoms including sleep problems, irritability/anger outbursts, difficulty concentrating, hypervigilance, an exaggerated startle response, depression, and sadness, fatigue/low energy, feelings of worthlessness, the diminished ability to think or concentrate, daily indecisiveness, and distraction. Since exiting the service, the Veteran denied having had any legal problems. He reported that he worked as a consultant with a contractor. He stated that he got along with his co-workers and supervisors but did have some issues with irritability and anger. He also noted that he had a wife and children, but that these relationships were also difficult due to these same symptoms. He denied any past or current substance abuse and denied assaultiveness. He further denied any impairment of thought process or communication. He endorsed experiencing some visual hallucinations at night. He did not present with inappropriate behavior. He denied suicidal or homicidal thoughts, ideations, plans, or intent. He was able to maintain minimal personal hygiene. He did not display issues with memory loss. He had no obsessive or ritualistic behaviors. He stated that he did have panic attacks that were triggered by loud noises. He did not have impaired impulse control. The examiner concluded that the Veteran's symptoms caused an occasional decrease in his work efficiency with the intermittent inability to perform occupational tasks, but that he had generally satisfactory functioning. Less than a year later, in July 2011, the Veteran underwent another VA examination. While the Board acknowledges that this examination was performed after the period on appeal, it finds that this examination report contains information that is relevant to determining the severity of the Veteran's disability prior to June 3, 2011. There, the Veteran arrived at the interview on time, was cooperative, and was oriented to time, place, and person. He denied delusions or hallucinations, as well as suicidal or homicidal ideation. His speech was within the normal range. His affect was sad and was congruent with a depressed mood. The Veteran's insight and judgment were within normal limits. His long- and short-term memories were within normal range. The Veteran described having nightmares two to three times a week, primarily of the explosion of an IED followed by two suicide bombers resulting in the killing or wounding of 120 civilians. He dreamt of a young, injured girl who he had to take to the aid station. He indicated that his wife divorced him in June 2011 for many reasons related to his PTSD, including his nightmares because they caused her to be afraid of him. He endorsed daily intrusive thoughts concerning his deployments, including the mass graves, picking up body parts, and the aforementioned explosion. He no longer ate spaghetti because it reminded him of human blood and flesh. The Veteran also indicated that he often had flashbacks that were triggered by loud sounds, smells (burning reminded him of the dead or wounded post-explosion), or visual stimuli (potholes or rotting things reminded him of the Gulf area and mass graves). The Veteran reported that he experienced irritability and anger numerous times during the day and had recently (April 2011) been placed on 6-month probation at work due to difficulties dealing with co-workers. He was required to improve his attitude and behavior or face termination. The Veteran indicated that his wife left him due to his irritability and anger as well. He described hypervigilance and avoidance behaviors. He indicated that he had one friend and intentionally avoided crowds, fireworks, flashing lights, and heavy traffic. Concerning his daily routine, he reported that he went to work, went home, cleaned up, had dinner, and watched TV until 1 a.m. He indicated that he had one friend who he saw three times a week. On the weekends, he would go to the beach and swim or sightsee with his friend (away from others) or watch TV. He indicated that he also saw his two children on weekends and spoke to them on the telephone three to four times a week. The examiner concluded that the Veteran continued to have all the symptoms for PTSD and that his symptoms resulted in deficiencies in most of the following areas: work, family relationships, judgment, thinking, and mood. The Board finds that prior to June 3, 2011, the Veteran's PTSD most closely approximated the criteria for a 70 percent disability rating. Throughout this period, the Veteran has demonstrated symptoms including self-isolation, chronic sleep impairment, anger outbursts, impaired impulse control, near-continuous depression, difficulty in adapting to stressful circumstances (including a worklike setting), and an inability to establish and maintain effective relationships. While he did not expound upon the severity of these issues in his October 2010 examination, it is clear by the findings in the July 2011 examination, performed less than one year later, that his symptomatology prior to June 3, 2011 caused occupational and social impairment in the areas of work (he was placed on probation in April 2011 due to anger outbursts and irritability towards co-workers), family relationships (his wife divorced him in June 2011 due to his irritability, nightmares, and startle responses), and mood. The Board finds that the evidence of record is not demonstrative of total occupational and social impairment as is necessary for a higher, 100 percent disability evaluation. While the Veteran undoubtedly has severe symptoms, including near-constant depression, chronic sleep disturbances, hypervigilance, irritability and anger issues, the Veteran has not displayed symptoms commensurate with a 100 percent disability rating, such 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; memory loss for names of close relatives, own occupation or own name. His judgment has consistently been assessed as normal. He reported visual hallucinations at night; however, as they were reported once and not documented in any other VA examination reports or treatment records, the Board finds that they may not be characterized as persistent as is required under the 100 percent rating criteria. Further, during this period he has not displayed inappropriate behavior. The Veteran has consistently denied suicidal or homicidal ideation, plan, or intent; thus, he is not shown to be in persistent danger of hurting himself or others. He was groomed appropriately and able to maintain activities of daily living, including his finances, independently, throughout the appeal period. Further, he has been oriented to time and place at all examinations. While he has described difficulty concentrating and thinking, he has not endorsed symptoms of memory loss, and certainly not at the severity contemplated by a 100 percent disability rating, as there is no indication that he has trouble remembering the names of close relatives or his own or other similarly vital information. Occupationally, the Veteran has had problems at work during the appeal period (he was placed on probation in April 2011), as described in the July 2011 VA examination report. Socially, the Board notes that the Veteran has endorsed some socially isolative behaviors, including avoiding crowds at stores and tourist areas, and this is indicative of some level of social impairment. However, the Veteran has one friend whom he spends time with several times a week, speaks to his children on a regular basis, and spends time with them on the weekends. A finding that the Veteran's service-connected PTSD causes some degree of occupational and social impairment does not necessitate a finding of total occupational and social impairment as characterized in the General Rating Formula. Here, there is simply not a showing of psychiatric symptoms that are of similar duration, frequency, and severity that would warrant finding that the Veteran is totally occupationally and socially impaired. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board finds that the overall severity of the Veteran's disability prior to June 3, 2011 most closely approximates a 70 percent disability rating, and not the total occupational and social impairment required for a 100 percent schedular rating. In summary, the Board finds that an initial 70 percent disability rating, but no higher, is granted for the Veteran's service-connected PTSD prior to June 3, 2011. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.