Citation Nr: 21066613 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-47 218 DATE: November 1, 2021 ORDER Entitlement to at least an evaluation of 70 percent for posttraumatic stress disorder (PTSD) from August 5, 2014 is granted. REMANDED Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) from August 5, 2014 is remanded. FINDING OF FACT The current evidence of record indicates that for the entire period on appeal, PTSD most closely approximates at least occupational and social impairment with deficiencies in most areas due to such symptoms as near difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; impaired impulse control; and suicidal ideation. CONCLUSION OF LAW The criteria for at least an evaluation of 70 percent for posttraumatic stress disorder (PTSD) from August 5, 2014 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2004 to March 2005, with service in Iraq. He also had a period of Active Duty for Training from February 2003 to August 2003. As explained below, the Board has determined that there is sufficient evidence of record to warrant the award of at least a 70 percent evaluation effective the date of the Veteran's increased rating claim, August 5, 2014. However, adjudication of whether an evaluation in excess of 70 percent is warranted would be premature due to the outstanding medical evidence referenced in the Remand portion of this decision. The Board has decided to bifurcate the claim so as to benefit the Veteran by granting the award that the evidence of record supports (a 70 percent evaluation) without delay, while awaiting further evidentiary development. 1. Entitlement to an evaluation of at least 70 percent for posttraumatic stress disorder (PTSD) from August 5, 2014 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has determined that a uniform 70 percent rating is appropriate throughout the entire period on appeal (August 5, 2014 to present), while noting that the issue of whether an evaluation in excess of 70 percent will be adjudicated after further evidentiary development. The Veteran's PTSD is evaluated as 50 percent disabling prior to May 8, 2017, and 70 percent disabling thereafter under Diagnostic Code 9411. The Veteran filed an increased rating claim on August 5, 2014. The criteria for a 50 percent rating are as follows: 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. The criteria for a 70 percent rating are as follows: 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 as follows: 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013) the Federal Circuit stated that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. As indicated above, the Board has determined that the evidence supports a 70 percent evaluation from the time of the Veteran's August 5, 2014 increased rating claim. In a July 2017 rating decision, the RO increased the 50 percent evaluation to 70 percent, effective May 8, 2017. This increase was based primarily on the report of suicidal ideation at a June 5, 2017 VA examination and in a May 8, 2017 VA treatment note. In addition, the June 2017 VA examination documented impaired impulse control. After a review of the record, the Board has determined that a 70 percent evaluation is warranted prior to May 8, 2017, dating back to the Veteran's increased rating claim. In doing so, the Board notes that the May 8, 2017 VA Mental Health Diagnostic Study Note details "chronic passive suicidal ideation." In addition, while the Veteran denied suicidal ideation at the June 2017 VA examination, he reported that it occurred one week prior. It is a certainty that the symptoms reported in the VA treatment note and examination, specifically suicidal ideation and impaired impulse control, did not begin on the exact date of evaluation. The report of chronic suicidal ideation further supports this practical reality. While suicidal ideation was not reported at a May 2015 VA examination, private treatment records indicate a history of suicidal ideation. The evidence makes clear that the severity of the Veteran's symptoms has fluctuated during the period on appeal. With consideration of 38 C.F.R. §§ 4.3 and 4.7, at least a 70 percent evaluation is warranted for the entire period on appeal based upon suicidal ideation and impaired impulse control. As noted above, the Board is remanding the matter of entitlement to an evaluation in excess of 70 percent for further evidentiary development. As a result, it will not discuss at this time whether there is total occupational or social impairment due to PTSD during the period on appeal. Continued on the next page REASONS FOR REMAND 2. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) from August 5, 2014 is remanded. The record indicates that the Veteran was receiving VA treatment for his PTSD. The most recent VA treatment record is dated May 8, 2017. As there is an indication of outstanding records, remand is necessary to attempt to obtain such records to properly adjudicate the issue of whether an evaluation in excess of 70 percent is warranted. The matters are REMANDED for the following action: 1. Offer the Veteran an opportunity to identify any relevant, outstanding private treatment records. Any identified records should be sought. 2. Obtain any outstanding VA treatment records. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.