Citation Nr: 21067819 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-03 772 DATE: November 5, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) for the period prior to August 5, 2021, is granted. Entitlement to a total disability rating for PTSD at any time during the appeal period is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD more nearly approximated the criteria for a 70 percent rating, causing occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for PTSD for the entire appeal period, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Air Force from May 1969 to May 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which granted service connection for other specified trauma, stressor related disorder (claimed as PTSD) and assigned a 50 percent rating effective September 9, 2013. During the pendency of the appeal, an August 2021 rating decision increased the disability rating to 70 percent effective August 5, 2021. As higher ratings are potentially available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to a Higher Initial Disability Rating for PTSD The Veteran is in receipt of a 50 percent initial disability rating for PTSD from September 9, 2013 to August 5, 2021 and a 70 percent rating beginning on August 5, 2021. Under the General Rating Formula, a 50 percent rating is assigned when a veteran's psychiatric disability causes 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-term 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. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted when there is 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The maximum schedular rating of 100 percent is warranted when there is 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, own occupation or own name. 38 C.F.R. § 4.130. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). Symptoms listed in the General Rating Formula 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, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Id. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. Id. Factual Background Turning to the evidence, treating records reveal that the Veteran had an initial mental health consultation in September 2013. During the assessment, the Veteran appeared very anxious, and he reported that it was hard for him to admit that he has any kind of problem. He reported that he and his wife were not getting along well and that he is bothered by the things she says to him. He also reported significant difficulty with sleep. He stated that he only gets two to three hours of sleep a night and has nightmares once a week. He also indicated that he moves around and yells a lot in his sleep. He elaborated that he was recently awakened by his wife and found himself choking her. He also reported that he was recently awakened by his own noise and found himself spread eagle on the wall. Additionally, the Veteran reported difficulty being in crowds and indicated that he is easily startled. He indicated that he sits in the back pew at church and is always watchful of the exits. He also indicated that he responds to loud noises by hitting the ground or jolting with his arms. He elaborated that he has accidentally hit people who startled him from behind. He also reported having episodes two to three times a month where his heart races and pounds. His mental status included an anxious, depressed mood, a worried, sad affect, and nervous motor activity. Otherwise, he presented as well-groomed and cooperative with normal speech and intact thought process. Throughout 2013 and 2014, the Veteran presented in psychiatric visits with symptoms of intrusive thoughts, nightmares, hyper startle response, and short temper that persisted despite medication adjustments and increased due to numerous stressors, such as his job, his wife's health, filing for benefits, and building a house. Treating records note that the Veteran frequently left work meetings early due to anger and filing for benefits reminded him of past traumas. On numerous occasions, the Veteran's psychiatrist noted that his symptoms had improved, but they continued to impair his occupational and interpersonal functioning. Consistent with these records, the Veteran submitted a buddy statement from his cousin in January 2014, who reported that the Veteran has needed help for a long time to calm his nerves and manage mood swings. He indicated that the Veteran has improved since getting help at VA, though he reported that the Veteran continues to be jumpy. Additionally, the Veteran indicated in a June 2014 Notice of Disagreement that he was still having problems sleeping and that his wife was afraid of him. At this time, his wife reported that the Veteran's PTSD was severe, and he continued to wake her in the night from tossing and turning. Despite these issues, the Veteran's mental status remained essentially normal throughout 2013 and 2014. At times, anxiety and tremulous activity was noted during treating visits. However, the Veteran consistently presented as appropriately dressed, well groomed, cooperative, and engaged with good eye contact, logical and goal directed thoughts, good insight, judgment, memory, and concentration. He also consistently presented without signs of delusions or paranoia and denied having suicidal or homicidal ideation. In March 2014, the Veteran was provided a VA examination to assess the nature and severity of his psychiatric disability. At this time, the examiner provided a diagnosis of unspecified trauma and stressor-related disorder. The examiner explained that the Veteran was missing one criterion, but he would have otherwise met the full diagnosis for PTSD. The examiner further concluded that the Veteran has occupational and social impairment with reduced reliability and productivity. Symptoms noted by the examiner include anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon examination, the Veteran was oriented to person, place, and time. He presented as calm and coherent. His mood was identified as good. His affect was slightly restricted, but stable and congruent with his mood. The Veteran was cooperative, responded to questions, and had friendly mannerisms. His thought processes were linear, organized, and coherent and his speech was average. His memory appeared intact, and he denied any current suicidal or homicidal ideation. He also denied hallucinations and there was no evidence of any delusional thoughts. His insight and judgment were fair. With regard to his social functioning, the Veteran reported that he has been married to his current wife for the past 10 years. He has a brother and sister with whom he speaks to once a week. He denied having any friends. However, he reported that he attends church regularly, volunteers as a maintenance worker, and rides a motorbike with a group of police officers. He elaborated that this group has cookouts and holds charity events to help children. The Veteran also reported that he generally has positive interactions with his peers. With regard to his occupational functioning, the Veteran has worked in quality control for a machinist company for the past 20 years. He indicated that he is easily startled at work when he completes tasks, but he noted that he is completely proficient at his job. Despite these reports, the Veteran indicated that his symptoms have waxed and waned since returning from Vietnam, and seem worse over the past few years without a clear reason. He indicated that he avoids crowds and feels hypervigilant. He also reported that sudden movements cause a major startle response. The Veteran also reported that he feels keyed up and on edge. He elaborated that that he has a short fuse and yells at his wife with little provocation. He also reported that he has pushed her against the wall but has not hit her. The examiner noted that the Veteran evidenced detachment toward other people. He indicated that he has nightmares that cause him to yell and act out in his sleep. He elaborated that he recently woke up while trying to choke his wife, which prompted him to seek mental health care. He reported that his sleep and temper have improved with medication and he is currently only having one to two nightmares a month. Throughout 2015, the Veteran had some success with medication adjustments and improved symptoms. However, he still experienced persisting symptoms of anger, irritability, and sleep disturbances that worsened at times. For example, the Veteran reported in July 2015 that his nightmares had worsened, and he had become more irritable, which was causing difficulty getting along with others on the job. When he returned in August 2015, he indicated that he was under a lot of stress and had some verbal altercations at work. In November 2015, he reported that he was doing better and had reduced stress. He complained of persisting anger and irritability, but he indicated that he had not lost his temper at work or become violent. Despite these symptoms, the Veteran's mental status was essentially normal in treating visits with the exception of presenting with an anxious mood. The Veteran was provided another VA examination in January 2016. At this time, the examiner provided a diagnosis of PTSD. The examiner further concluded 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. Symptoms noted by the examiner include depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting. Upon examination, the Veteran's mood was depressed, and his affect was flat. However, he appeared pleasant and cooperative. He was casually dressed and presented with appropriate grooming and hygiene. He exhibited continuous shaking and tremors in his arms and hands. His thought processes were organized, logical, and coherent and his speech was adequate. There were no reports or signs of psychosis. His insight and judgment were adequate. With regard to his social functioning, the Veteran reported that he has a good relationship with his wife of 13 years. He indicated that he has no contact with his two sons and occasional contact with his siblings. He also indicated that has acquaintances at church, and he rides on a regular basis with a policy motorcycle club. However, he reported that he usually limits his interactions to these two activities. With regard to his occupational functioning, the Veteran has worked in quality control for the past 23 years. He reported episodes where he will miss a day of work after a difficult night with no sleep due to nightmares. The Veteran also reported shaking and trembling in his hands of unknown origin that increase when he is anxious and interfere with his ability to adequately meet his job tasks as a quality control specialist. Additionally, he also reported having some difficult relationships with coworkers due to his hypervigilance, anxiety, and tendency to startle easily. He reported one incident when a coworker jumped at him from behind a corner in an attempt to scare him and the Veteran responded by striking the worker. The examiner noted that this was a startled, reflex response rather than one made out of anger and no one was injured. Throughout 2016, the Veteran reported improved anger and irritability, but persisting hypervigilance and nightmares. For example, he reported in February 2016 that he was feeling more vigilant and on edge for no reason. He indicated that he had been recently woken in the middle of the night with what sounded like a gunshot and he immediately went outside with his gun to investigate. In May 2016, he reported feeling more alert and on edge than usual because his neighbor had been recently murdered. He indicated that he was sleeping well, but his wife reported that he continued to have nightmares three times a week. With respect to his anger, the Veteran indicated in numerous appointments that he had not had any altercations at work and was able to calm himself down when he became angry. However, his wife reported in November 2016 that his temper had increased over the past couple of months. She also indicated that the Veteran continued to toss in his sleep, but she could not wake him because he strikes out. At this time, the Veteran indicated that he had multiple stressors, including his wife's health, job uncertainty, family discord, and the holidays. However, the Veteran's mental status consistently appeared normal with the exception of anxious and depressed moods and tremors in the upper extremities. The Veteran's PTSD was evaluated again in February 2017. At this time, the examiner provided a diagnosis of PTSD and obsessive-compulsive personality disorder traits. However, the examiner also noted that the Veteran did not have more than one psychiatric diagnosis. The examiner further concluded that the Veteran has occupational and social impairment with reduced reliability and productivity. Symptoms noted by the examiner include depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon examination, the Veteran was oriented to person, place, and time. He was cooperative maintained good eye contact, and he did not exhibit inappropriate behavior. He appeared able to maintain personal hygiene and basic activities of daily living. He denied having suicidal or homicidal ideation and there were no apparent symptoms of delusions, hallucinations, or gross memory deficits. With regard to his social functioning, the Veteran reported that he remains married to his wife of 14 years. He indicated that he has no contact with his two sons and denied any contact with extended family dating back years. He also indicated that he has not ridden with the police motorcycle group for over a year and has not been active with meetings or cookouts. He further indicated that his current hobby involves building a workshop in his back yard to do some metal or glass work. With regard to his occupational functioning, the Veteran reported that he continues to work in quality control. From this evaluation, the examiner concluded that the Veteran is likely to be mildly to moderately impaired in a work environment that requires frequent interactions with customers, co-workers, or supervisors and in a work environment that is fast paced, complex and/or frequently changing. The examiner also concluded that the Veteran is likely to be mildly impaired in a work environment that contains moving machinery or equipment, requires frequent driving, requires sustained concentration and focus, and requires rigid adherence to a set work schedule. During treatment visits in 2017, the Veteran reported improvement with medication, but he continued to complain of hypervigilance, anxiety, intrusive thoughts, startle response and anger. In numerous visits, he reported continued stress at work and problems managing his anger. Additionally, his psychiatric provider noted in December 2017 that his symptoms continue to have a significant negative impact on his ability to cope with everyday life events. The provider elaborated that the Veteran will likely require medication for the rest of his life as well as adjustments to his medication regimen. However, the Veteran's mental status remained essentially normal in treating visits throughout 2017 with the exception of anxious moods, a hand tremor, and some movements of the legs. Treating records from 2018 and 2019 reveal that the Veteran's symptoms had improved. However, he was experiencing significant levels of sedation due to his medications. In November 2018, the Veteran's wife reported that he was sleeping too much. She indicated that the Veteran comes home from work, eats, and then goes directly to bed for several hours. She added that he gets up to take his bedtime medication and goes right back to bed. In January 2019, the Veteran reported that he was still sleeping a lot and he had cut back on his hours from work. The Veteran continued to complain of his medication being very sedating in treating visits. He also reported increased irritability and a desire to blow up at work during a treating visit in December 2019. At this time, the Veteran was not taking his medication as prescribed due to feeling excessively sedated. Throughout 2020, the Veteran's symptoms worsened with increased nightmares, irritability, and anger. In a statement from January 2020, the Veteran's wife reported that he gets very moody and can be hard to talk to and has trouble interacting with others. She also complained that he tosses and turns at night due to nightmares. Additionally, the Veteran reported having persisting nightmares and flashbacks during a treatment visit in June 2020. Furthermore, the Veteran's wife reported in September 2020 that the Veteran ran out of pills and reported an urgency in filling the prescription because the Veteran becomes violent without it. In October 2020, the Veteran reported that he ran out of medication for a week and his nightmares got really bad. He also indicated that his nightmares have increased due to the pandemic. He indicated that they occur one to two times a week. He also reported having flashbacks two to three times a month and complained of persisting intrusive thoughts, hypervigilance, and startle response. However, he did indicate that he was still working full time and his work was therapeutic. Finally, the Veteran was provided another VA examination in August 2021. At this time, the examiner provided a diagnosis of PTSD. The examiner further concluded that the Veteran has occupational and social impairment with deficiencies in most areas. Symptoms noted by the examiner include depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner further noted that the Veteran has a long-standing history of poor sleep, nightmares, and night terrors. She elaborated that the Veteran is quick to become angry over minor issues and often becomes verbally aggressive towards others. Upon examination, the Veteran was cooperative, but anxious and made fair eye contact. He appeared casually dressed and appropriately groomed. His thought processes appeared logical, and goal directed with no delusions, obsessions, or compulsions and his speech was normal. With regard to his occupational functioning, the Veteran reported that he left his job as a machinist three years prior. He indicated that the company was sold numerous times and he did not get along with the most recent owners. He elaborated that he was involved in some verbal confrontations. He went to work or another company, but he was let go after two years due to his difficulty getting along with others. He reported that he was currently working in distribution for the past 90 days and it was going okay. With regard to his social functioning, the Veteran reported that he is easily frustrated over minor issues and is quick to become aggressive toward others. He indicated that he has limited his interactions with everyone but his spouse. He also reported feeling heightened anxiety, panic, and constant fatigue. Analysis The Veteran maintains that he is entitled to a rating in excess of 50 percent for his PTSD. The Board agrees and finds that a 70 percent rating is warranted for the entire appeal period, but a rating higher than 70 percent is not warranted at any time during the appeal period. The March 2014, January 2016, and February 2017 VA examiners concluded that the Veteran's symptoms cause occupational and social impairment that corresponds to a rating at 50 percent or below. Conversely, the August 2021 VA examiner concluded that the Veteran's symptoms cause occupational and social impairment in most areas, which corresponds to a 70 percent rating. The finding by the August 2021 VA examiner is the most probative. This examiner noted that the Veteran has a long-standing history of poor sleep, nightmares, and night terrors. She further noted that the Veteran is quick to become angry over minor issues and often becomes verbally aggressive toward others. From this evidence, both she and the January 2016 VA examiner concluded that the Veteran has difficulty adapting to stressful situations, including work or a work-like setting, which is a symptom listed in the 70 percent rating criteria. Additionally, treating records reveals that the Veteran has experienced intrusive thoughts, nightmares, hypervigilance, hyper startle response, irritability, and a short temper, which can reasonably be expected to affect the Veteran's impulse control. These symptoms have persisted despite medication adjustments and have worsened during periods of high stress. The Veteran's psychiatrist consistently noted in 2014 that the Veteran's symptoms continued to impair his occupational and interpersonal functioning. Additionally, a psychiatric provider concluded in December 2017 that the Veteran's symptoms have a significant impact on his ability to cope with everyday life events. Although the Veteran's symptoms did improve throughout 2018 and 2019, he experienced significant levels of sedation during this period. During this period, his wife reported that he sleeps spends almost the entire evening in bed after he gets home from work and sleeps through the night. Furthermore, the Veteran's symptoms worsened in December 2019, at which point he stopped taking his medications as prescribed due to feeling excessively sedated. Additionally, the Veteran reported difficulty managing his symptoms throughout 2020 due to medication adjustments and the Covid-19 pandemic. Treating records also demonstrate that the Veteran's symptoms cause deficiencies in the areas of work, family relations, judgment, thinking, and mood. For example, he has had verbal confrontations with coworkers and has needed to leave meetings early due to anger. He has been verbally aggressive to his wife and yells at her with little provocation. He reported that she is afraid of him and she has reported that he becomes violent if he does not take a certain medication. Additionally, the Veteran has accidentally hit a coworker who startled him from behind and he becomes so startled by loud noises that he hits the ground or jolts his arms. He has shaking and trembling of the hands that increases with anxiety and interferes with his ability to perform tasks at work. Due to nightmares, he has tried to choke his wife in her sleep and has missed work after difficult nights with no sleep. Due to difficulty being in crowds, he sits in the back pew at church and is mindful of the exits. From this evidence, the Board concludes that the preponderance of evidence supports a finding that the Veteran's symptoms more nearly approximated the criteria for a 70 percent disability rating. The Board also finds, however, that a rating greater than 70 percent is not warranted at any time during the period on appeal. There is no evidence on record that the Veteran experiences gross impairment in thought processes or communication, persistent delusions or hallucinations, 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. While the Veteran has been verbally aggressive with coworkers and his wife, and been noted to be violent without medication, his treating providers have not indicated that he presented with grossly inappropriate behavior or persistent danger of hurting self or others. Throughout the appeal period, the Veteran's mental status was essentially normal in most treating visits with the exception of his mood and psychomotor activity. He was oriented to person, place, and date. He was well groomed, cooperative, and engaged. He maintained good eye contact and normal speech. His thoughts were logical, and goal directed with no signs of delusions, hallucinations, or suicidal ideation. He exhibited good memory, insight, and judgment. Furthermore, the Veteran has maintained a relationship with his wife throughout the appeal period, despite some conflict, and he has weekly contact with his siblings. He has also maintained employment with the same company for most of the appeal period. Despite changing jobs numerous times in recent years due to conflicts at work, he has continued to work without a significant break in employment. He has also reported attending church, volunteering, riding his motorbike with a group of police officers, building a house, and building a workshop in his backyard. These activities demonstrate that the Veteran does not have total occupational and social impairment. Thus, the Board finds that a rating higher than 70 percent is not warranted. In sum, the Board concludes that a 70 percent rating is warranted for the entire appeal period. However, the preponderance of evidence is against a finding that a rating greater than 70 percent is warranted at any time during the appeal period. Accordingly, a 70 percent rating, but no higher, is granted for the entire appeal period. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.