Citation Nr: 21069770 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-40 050 DATE: November 19, 2021 ORDER Entitlement to a 100 percent rating for a psychiatric disability, from November 18, 2013, but not earlier, to July 30, 2015, is granted. FINDING OF FACT As of the date of claim on November 18, 2013, but not earlier, to July 30, 2015, psychiatric disability symptomatology more nearly approximated total occupational and social impairment, including symptoms of grossly inappropriate behavior; the evidence does not show an ascertainable increase in disability in the year prior to the filing of the claim for increase. CONCLUSION OF LAW As of the date of claim on November 18, 2013, but not earlier, to July 30, 2015, the criteria for a 100 percent rating for a psychiatric disability were 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 FINDING AND CONCLUSION 1. Entitlement to a rating in excess of 50 percent for a psychiatric disability, from November 18, 2013, to July 30, 2015 2. Entitlement to a rating in excess of 30 percent for a psychiatric disability, prior to November 17, 2013 The Veteran filed a claim for an increased rating in excess of 30 percent for a service-connected psychiatric disability, then diagnosed as posttraumatic stress disorder (PTSD), on November 18, 2013. An October 2014 rating decision assigned a 50 percent rating, effective November 18, 2013, the date of the filing of the claim for increase. Within one year of the October 2014 rating decision, new VA treatment records dated in 2015 were associated with the claims file. Because new and material evidence was received within one year of the October 2014 rating decision, that rating decision did not become final. On July 31, 2015, the Veteran filed a written statement, requesting a higher rating for PTSD. After the issuance of an October 2015 rating decision, denying the claim for a higher rating in excess of 50 percent, the Veteran appealed the decision to the Board. Following Board-requested development, a September 2019 rating decision assigned a 100 percent rating, effective July 31, 2015, indicating that the decision constituted a full grant of the claim on appeal. However, in so doing, the Agency of Original Jurisdiction (AOJ) did not readjudicate the claim for a higher rating prior to July 31, 2015. Thus, the Board must determine if a higher rating should be assigned for the period beginning on the date one year prior to receipt of the claim for increase on November 18, 2013, through July 30, 2015, the day before the assignment of a 100 percent rating for a psychiatric disability. However, to assign an increased rating in the year prior to the date of the receipt of the claim on November 18, 2013, the evidence must show that it was factually ascertainable based on all evidence of record that an increase in disability had occurred during the year prior to the date of receipt of the claim for increase. 38 C.F.R. § 3.400(o)(2). 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 (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 (Fed. Cir. 2013). 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. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). A September 2019 rating decision assigned a 100 percent rating for the psychiatric decision, effective July 31, 2015. The AOJ stated that the decision constituted a full grant of the appeal, and mistakenly indicated that the 100 percent rating had been assigned for the entirety of the appeal period. However, as explained above, July 31, 2015, was the date the Veteran filed what he believed to be an informal claim for an increase, not knowing that the claim filed November 18, 2013, was still pending. The Board concludes that, for the period from November 18, 2013, but not earlier, to July 30, 2015, the psychiatric disability more nearly approximated the level of impairment required for a 100 percent rating. The Board finds that the evidence does not show that it was factually ascertainable that an increased in disability had occurred in the year prior to the date of receipt of the claim for increase. In the September 2019 rating decision, granting a 100 percent rating, the AOJ found that the service-connected disability symptomatology more nearly approximated total occupational and social impairment, including symptoms such as grossly inappropriate behavior. The evidence of record prior to that decision, dating from July 31, 2015, indicated that the Veteran had become increasingly antisocial and violent due to PTSD symptoms. The symptoms were of such severity that, in a moment of anger, in 2019, the Veteran attacked his daughter with a knife. The Board notes that the evidence created during the appellate period prior to July 31, 2015, does not contain any reports of violent acts committed by the Veteran. The record of evidence for the period from November 18, 2012, through November 17, 2013, contains almost no treatment records, because the Veteran apparently was not interested in treatment at that time. Therefore, the Board finds that evidence does not show a factually ascertainable increase in disability in year prior to receipt of the claim for increase. The record includes a few VA treatment records, indicating treatment for psychiatric symptoms, during which both the Veteran and his spouse were interviewed. For example, in a December 2013 VA treatment record, the Veteran reported drinking to excess to deal with PTSD symptoms. The Veteran expressed agitation at the idea that he would have to stop drinking. The Veteran indicated that conflicts over his drinking resulted in him lashing out at his spouse, blaming her for asking him simple questions rather than blaming his own behavior. In a January 2014 VA treatment record, the Veteran reported that his combat memories had become more prevalent since retirement from work nearly a decade prior. The Veteran stated that combat memories were invading his dreams and were now intruding into his daily activities. The Veteran openly expressed resentment towards others, particularly other veterans who had not had to experience what he went through in combat. In a March 2014 VA treatment record, the Veteran reported anger issues, describing them as "urges to violence." In an August 2014 PTSD disability benefits questionnaire, a private examiner indicated that the Veteran was currently drinking between two glasses to a fifth of alcohol per day. The Veteran reported having withdrawn from almost all human contact as he was unwilling to leave the house, because he feared becoming anxious at the sound of any loud noise. The Veteran reported experiencing great irritability, night terrors, and daytime fears related to wakening from dreams of combat stressors. The examiner indicated that the psychiatric disability required intensive treatment, but that the Veteran was not seeking such treatment at that time. A June 2019 VA psychiatric examination report, written during the period for which a 100 percent rating has already been assigned, a VA examiner diagnosed both PTSD and an alcohol use disorder. The examiner indicated that the Veteran's PTSD symptoms could not be differentiated from the alcohol use disorder and the Veteran used alcohol to mask PTSD symptoms. The evidence for the rating period in question, to particularly include the one-year period prior to the filing of the November 2013 claim, is scant. However, the Veteran recently submitted a September 2021 private psychiatric examination report. In that report, a private examiner reported reviewing the record of evidence dating back to 2007 and interviewing both the Veteran and his spouse. The examiner indicated that, soon after the Veteran's retirement from work in approximately 2007, the Veteran developed severe PTSD and alcohol use disorders. The examiner noted that the Veteran began to stay almost entirely at home and quickly became a near recluse, incapable of engaging in any aspect of prosocial societal interactions. During that time, the Veteran became more dependent on his spouse and daughter, even as their home environment began to deteriorate due to the psychiatric symptomatology. The examiner indicated that, in a March 2011 VA treatment record, written prior to the beginning of the appeal period, the Veteran reported having difficulty controlling his anger and drinking heavily. The examiner indicated that the Veteran's drinking over the period from November 18, 2012, through November 17, 2013, caused ongoing stress with the Veteran's marriage. The examiner reported that the Veteran's difficulties with anger had been present and had become more volatile over the years. The examiner noted that the Veteran had committed a violent act in 2019 against his daughter, attacking her with a knife, after an argument between himself, his daughter, and his spouse. The examiner indicated that the Veteran, despite his mistreatment of those closest to him due to the psychiatric symptoms, was incapable of performing even basic activities of daily living without his spouse's aid. From the evidence of record, the Board finds that the evidence indicates that, from the date of receipt of the claim on November 18, 2013, to July 30, 2015, the psychiatric disability symptoms have more nearly approximated that required for a 100 percent rating. The Board finds that the evidence sufficiently shows that, during the period in question, the Veteran's symptoms caused him to be almost entirely unable to leave the house, except for scheduled medical appointments. The record shows no indication that the Veteran was able to build any social relationships outside of his immediate family due to his symptoms. Moreover, the anger issues and alcohol abuse related to his psychiatric disability led to the Veteran to act in a grossly inappropriate manner, causing such tensions within the family so as to create a highly dysfunctional atmosphere. Although the incident occurred in 2019, the fact that the Veteran violently attacked his daughter after an argument with her and his wife must be considered. Moreover, the fact that the Veteran's wife acted during the relevant period as a caretaker due to the Veteran's psychiatric limitations suggests the Veteran experienced a level of impairment of great intensity. However, the Board finds that the preponderance of the evidence is against a finding that there was a factually ascertainable increase in disability in the year prior to the date of receipt of the claim on November 18, 2013. The evidence does not include treatment records for that time period. While the private opinion covered a retrospective period, that opinion does not support a finding of increased disability during that year prior to the date of receipt of the claim. That opinion suggests that the increase in disability occurred more than one year prior to the date of receipt of the claim for increase. However, the evidence from that period does not exist to support the assignment of any higher rating during that period. Therefore, the Board finds that, for the period from November 18, 2013, but not earlier, to July 30, 2015, the Veteran's psychiatric disability symptomatology more nearly approximated the total occupational and social impairment required for a maximum 100 percent rating. The Board finds that the preponderance of the evidence is against the assignment of any higher rating prior to November 18, 2013. Thus, to that extent, the Veteran's appeal is granted. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.M. Gillett 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.