Citation Nr: 21066993 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-34 184 DATE: November 3, 2021 ORDER Entitlement to an increased initial rating of 50 percent for post-traumatic stress disorder (PTSD) is granted. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD symptoms most closely approximate the criteria for a 50 percent rating productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 2018. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to a rating of 50 percent for PTSD is granted. In August 2017, the Veteran submitted a claim of entitlement to service connection for PTSD. In February 2018, the RO granted service connection for PTSD and assigned a 30 percent rating effective from August 9, 2017. The Veteran contends that the severity of his PTSD is more consistent with a 50 percent rating as his occupational and social life ar impacted by symptoms such as irritability, substance abuse, anxiety, difficulty with sleep, and depression. 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. Factual Background Review of the medical records reveal that at a June 2017 psychiatry appointment the Veteran presented with PTSD and his medication was increased to manage his symptoms. He indicated he was participating in weekly therapy and was working on cutting down on his alcohol use. The Veteran denied suicidal and homicidal ideation and poor self-care. He also denied symptoms of mania or psychosis but indicated that he continues to experience flashbacks, nightmares, and hypervigilance. At the time of the appointment, the Veteran indicated that he lived with a female friend who he reported was supportive. At a separate June 2017 appointment, the Veteran denied being depressed, anxious, suicidal, or homicidal. An August 2017 primary care note indicates that the Veteran reported being retired and living with his girlfriend. The Veteran had a negative depression screening at that time and appeared with organized thought and speech with no disturbance of mood. The Veteran attended a VA examination in January 2018. The Veteran tearfully shared that he witnessed a number of deaths while in service. He reports having service-related nightmares that occasionally cause him to awaken in sweat. He shared that he went to a theatre to watch a war movie and was unable to see it as it gave him bad flashbacks. He also reported that he cannot use a recommended CPAP machine as anything over his face he will start to hyperventilate. Socially, the Veteran reported being in a stable relationship for 40 years with a supportive partner. He shared that he was previously married and was estranged from his ex-wife at the time of her death. He gets along with his grown sons, with one living locally and one living in Texas. He shared that he has four grandchildren and that he is saddened by his granddaughter's murder 10 years ago. On a typical day, he stays in bed until about 8 am, watches some tv and sleeps. The Veteran indicated that he and his girlfriend will have breakfast and go to the store, with occasional visits to family. The Veteran and his partner go to the casino together and he reported their spending is well-managed and planned. He also reported that he has several friends who know not to bring up Vietnam. Occupationally, the Veteran was a laborer for ITT technology for 31 years and he retired at age 62. He shared that he retired because he was eligible and because he had been out on compensation for a year due to breaking several bones while working. At his examination, the Veteran was not comfortable discussing his experiences in Vietnam. The Veteran reported that he drinks 3-4 drinks when he and his girlfriend go to the casino. He shared that on the day of his examination, he had had 2 beers prior to the appointment. The examiner found the Veteran experienced hypervigilance, an exaggerated startle response, depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintain effective work and social relationships. The examiner ultimately opined that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In February 2018, the Veteran appeared for emergency treatment where he denied suicidal or homicidal ideation and presented as alert, oriented, calm, and cooperative. The Veteran reported a low mood one time per week without feelings of guilt, intention of self-harm or suicidal ideation. He indicated that he was upset because his car was hit by the neighbor's car and noted that he is not eating, sleeping, or drinking well because of this. He shared that whenever there is a stressful event in his life, he gets upset and has a low mood. Later in February 2018 the Veteran presented with double vision and mental fog. He indicated over the past few weeks he had several episodes of mental fog, described as inability to determine directions and forgetting how to work a slot machine. He also shared that he has had episodes of seeing his television on the floor when it is actually on a television stand. In March 2018, the Veteran attended a mental health appointment where the Veteran presented as casually dressed with good hygiene, flat affect, and a "fair" mood. He was tearful at times and maintained good eye contact. Thoughts were logical and goal directed with no evidence of psychosis. He denied suicidal and homicidal ideation and was oriented. He indicated that he feels sad when he sees a happy couple because he wished his relationship with his ex-wife had worked and expressed grief for her passing. He did describe his present relationship as "good." At a mental health consult in April 2018, the Veteran described his mood as "not good," though later he indicated that he does have happy times. The evening prior, the Veteran went out with his girlfriend and family to the casino to celebrate his birthday. The Veteran shared that he gets along well with his girlfriend and his family. He presented as alert and oriented, casually dressed, cooperative with good eye contact, with no expression of thoughts of harm to self or others. Additionally, there was no evidence of psychosis or formal thought disorder, his memory was grossly intact, with fair to good judgement and insight, and normal speech. At further mental health appointments in April 2018, the Veteran presented as cooperative with fair to good eye contact. He described his mood as pretty good and his affect was mood congruent. His speech was coherent, thought processes were goal-directed and thought content revealed no intention to hurt himself or others. He was alert and oriented with fair to good attention, concentration, memory, insight, and judgment. The Veteran did not express any thoughts of harm to self or others nor was there evidence of psychosis. In May 2018, the Veteran again presented for mental health treatment. He indicated that his medication helped with his anxiety and depressed mood but his sleep was still disrupted. He was found cooperative, maintained fair eye contact, and denied any intention to hurt himself or others. His speech was coherent, thought processes were goal-directed and thought content revealed no intention to hurt himself or others. He was alert and oriented with fairly intact attention, concentration, memory, insight, and judgment. In June 2018, the Veteran was administered a memory concentration test wherein memory was found to be normal to minimally impaired. At a separate appointment in June 2018, the Veteran again shared that he and his girlfriend enjoy going to the casino and spending time with his family. The Veteran reported that he and his girlfriend go out every afternoon, enjoy each other's company. and are supportive of each other. He also shared that he continues to have nightmares that involve him getting shot or him going into combat. At July and September 2018 mental health appointments, the Veteran was cooperative and with fair eye contact. His speech was coherent, thought processes were goal-directed and thought content revealed no intention to hurt himself or others. He was alert and oriented with fairly intact attention, concentration, memory, insight, and judgment. In July, he reported feeling less anxious and depressed, and in September he reported his mood as "fairly stable." In January 2019, the Veteran completed a negative depression and suicide screening. The evidence of record includes Social Security Administration (SSA) records. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In July 2011 the Veteran filed a claim disability for muscle, ligament, and fascia disorders, along with osteoarthrosis and allied disorders. The SSA documents only included descriptions of the Veteran's physical limitations. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In May 2021 the Veteran attended a Board hearing. The Veteran stated that his PTSD has increasingly impaired long and short-term memory. He indicated that he forgets or confuses the names of people close to him and forgets simple directions or how he arrived somewhere. The Veteran reported using alcohol in the past to stop or quiet intrusive thoughts and that has had DUIs due to his alcohol use. He also indicated that he still uses alcohol. The Veteran noted that his flat mood and frequent feeling of hopelessness affects his motivation to leave the house. He shared that he avoids social contact and has panic attacks at least once a week. Additionally, the Veteran indicated he still has nightmares about war and the Veteran became visibly emotionally upset when he talked about dreams of war. At the time of the hearing, the Veteran was no longer in counseling but shared that he was still taking medication. Occupationally, the Veteran noted being retired. He also indicated that if he would struggle to be employed now as he had memory difficulties. He shared that he is unable to remember dates, such as when his parents passed and would be unable to remember simple instructions. Socially, the Veteran indicated that he does not have friends and that he rarely socializes with his family, though he presently lives with his sister. The Veteran indicated that his sister has a grandchild and that, though he would not hurt the child, she gets on his nerves quickly. He reported irritability and difficulty controlling his anger. Most recently, he needed medication for pain, and his son "did not respond to it until maybe like a month afterwards." The Veteran indicated that he had to find a substitute for his arthritis pain. The Veteran had a phone conversation with his son and reported he "charge[d] at him" and feels that if his son had been close to him, he would have put his hands on him. Additionally, the Veteran shared he experiences hypervigilance and suicidal ideation. He stated that he has to check the perimeters of his location, otherwise he experiences a lot of mental distress. He also has had thoughts of harming himself in the past and that he continues to have these thoughts at times to the present. He also indicated that he has thoughts of wanting to harm others. Of note, the Veteran's sister testified that after he returned from war and that he was about a year ago struck by a vehicle, which heightened the Veteran's paranoia and unwillingness leave the house. Analysis The level of impairment required for a disability rating of 50 percent contemplates 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, 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. The level of impairment required for a disability rating of 70 percent contemplates 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. Throughout the appeal period, the Veteran frequently reported irritability, feelings of anxiousness and depression, and abuse of alcohol. The Veteran expressed an improvement in symptoms when placed on medication. The mental status examinations consistently described him as pleasant in demeanor with good hygiene and grooming, suggesting the ability to maintain personal appearance and hygiene. He also had speech within normal limits and organized thoughts without signs of psychosis. The Veteran frequently reported difficulty with sleep and nightmares, which is indicative of chronic sleep impairment. While the Veteran reported depression, anxiety and panic attacks at various times, the evidence reveals that he was still able to participate in activities such as visiting with family and going to the casino. Occupationally, the Veteran retired prior to the date of his PTSD claim. The Veteran indicated that he would have difficulty with job performance due to his memory issues, indicating that he would be unable to remember five instructions at a time. Notably, throughout the period on appeal, the Veteran indicated that he was able to participate in activities with his partner such as going to the store or the casino. Socially, the Veteran maintained familial relationships throughout the entire period on appeal. He was in a long-term relationship for the majority of the period on appeal, though it is unclear if the Veteran was still in a relationship at the time of his hearing. Additionally, the Veteran noted having a good relationship with his family on multiple occasions, even celebrating his birthday with them. At his hearing, the Veteran noted that he does not visit with family often, though indicated that he is living with his sister. He did noted difficulty controlling his temper in specific instances, particularly after stressful events. At the beginning of the period on appeal, the Veteran shared having friends that he would not discuss Vietnam with and at his hearing reported he does not have any friends. The medical treatment records consistently describe the Veteran as pleasant. Thus, while the Veteran may have some difficulties in social settings, the overall evidence reveals that he is able to establish and maintain effective familial relationships, engage in social activities, such as going to the casino, and appropriately interact at medical appointments. Thr Board notes that the Veteran reported ongoing suicidal ideation at times at the May 2021 Board hearing; however, this report is inconsistent as the Veteran repeatedly denied suicidal or homicidal thoughts or intention at prior VA examinations and mental health appointments. The record consistently shows that the Veteran was not found to be a danger to herself and others by the examiners and clinicians of record. There is no evidence of any suicidal plans or attempts by the Veteran. As such, the Veteran's May 2021 report has been considered but due to the lack of frequency and inconsistency of such; a higher rating is not warranted on that basis. The evidence of record includes reports of impaired impulse control, which is contemplated by a 70 percent rating in addition to irritability and anger issues when things do not go his way. The Veteran's impaired impulse control is displayed by his alcohol use and difficulty controlling his temper resulting in verbal arguments. Despite these reports, the VA examiners and treating clinicians consistently found that the Veteran was not a danger to herself or others and the mental status examinations repeatedly described him as pleasant and cooperative with fair to good insight and judgment. Significantly, the Veteran had a longtime girlfriend and has maintained familial relationships which suggests he is able to control his irritability, anger, and temper. The Board notes that the Veteran alleged altercations and difficulty getting along with specific family members at his May 2021 Board hearing, including the disagreement over the phone with his son. The record does not reveal any additional reports of altercations just general allegations of irritability and anger. There are no other periods of violence reported. Notably, despite this incident and the Veteran's contention of losing his temper at home the Veteran's statements spanning over the majority of the appeal period note the Veteran having good relationships with both his family and his partner. Additionally, the Veteran presently resides with his sister. Thus, little weight is given to the allegations contained within the May 2021 hearing testimony. As previously noted, the Veteran's impaired impulse control includes alcohol abuse, such as his self-reported claim of gambling. Throughout the appeal period, the veteran has stated his alcohol consumption is minimal, the veteran has had at least three DUIs since his release from active duty. Despite his alcohol use he completed activities of daily living, to include self-care and was consistently described as well-groomed and pleasant in the mental status examinations. Therefore, while the Veteran displayed difficulties with impaired impulse control to include anger, irritability, difficulties with his temper and verbal arguments, the record does not reveal any periods of unprovoked irritability or anger with periods of violence as described by the 70 percent rating. The Veteran's PTSD also does not warrant a 100 percent rating as the Veteran has neither total occupational impairment nor total social impairment. The Veteran's ability to maintain relationships for the entirety of the appeal period suggest the ability to maintain control of his impulses, to include anger, irritability, and his temper. Furthermore, despite his alcohol dependence, the Veteran was able to perform activities such as grooming, shopping, going to the casino, and visiting family. As such, the Board finds that the frequency and severity of the Veteran's impaired impulse control, anger and irritability issues, alcohol use, and difficulty with his temper resulting in verbal arguments is more consistent with criteria contemplated by the 50 percent rating. (Continued on the next page) Therefore, when considering the overall severity, frequency, and duration of the Veteran's symptoms throughout the appeal period, the Board finds that his symptoms result in no more than an occupational and social impairment with occasional with reduced reliability and productivity consistent with a 50 percent rating. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.