Citation Nr: 21072191 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-19 842 DATE: December 2, 2021 ORDER Entitlement to an initial evaluation of 70 percent, but no greater, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT During the initial period, the severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation of 70 percent, but no greater, for PTSD have been 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 The Veteran served on active duty from June 1970 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the Board. A transcript of that hearing is of record. At his Board hearing, the Veteran clarified that he was not seeking entitlement to total disability evaluation based on individual unemployability (TDIU) in conjunction with his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability). Entitlement to a TDIU has not been adjudicated or certified to the Board. As such, entitlement to TDIU is not at issue in the present appeal. Entitlement to an initial evaluation 70 percent, but no greater, for posttraumatic stress disorder (PTSD) is granted. The Veteran contends his service-connected PTSD symptoms warrant a higher disability rating during the period on appeal. This claim stems from the Veteran's original claim for service connection for PTSD received by VA on February 11, 2014. In the November 2014 rating decision, the RO granted entitlement to service connection for PTSD with an initial disability evaluation of 50 percent. In an October 2018 rating action, the RO granted entitlement to an initial evaluation of 70 percent, effective October 15, 2018. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (2001). The Board finds an initial rating of 70 percent, but no higher, is warranted for the entire period on appeal. 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). While the Board concludes that the Veteran's symptoms caused the level of impairment necessary for a disability evaluation of 70 percent, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 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. Turning to the evidence of record, the Veteran presented at VA in February 2014, which resulted in a DSM-5 diagnosis of PTSD. At this time, the Veteran endorsed severe symptoms, including hypervigilance, re-experiencing trauma, nightmares, physical reactions, depression, difficulty with sleep and startle response. When discussing his trauma, the Veteran began to cry and curl up in a ball on his chair. He denied suicidal or homicidal intentions. He was working, and had a history of imprisonment. He was living with his girlfriend of 8 years, but had several failed relationships. He worked on cars to stay active, and had no legal problems at that time. He had moderate depression. On mental status examination, the Veteran was well-groomed and appropriately dressed. He was alerted and fully oriented. His mood was euthymic, and he displayed a normal range of affect. Speech was normal. Thought processes were clear, goal-directed, and logical. Cognition was within normal limits. A subsequent February 2014 VA treatment note reflects symptoms of nightmares, flashbacks, hypervigilance, avoidance behavior, fear, and anxiety. The Veteran described that he was unable to feel safe in his bed or home, and described hearing noises in the night. The Veteran was teary-eyed and cried during the treatment session. There was no homicidal/suicidal ideation. PTSD with increased anxiety, hypervigilance, and emotional lability was assessed. An April 2014 VA record documents significant difficulty with sleep and nightmares, which impacted his daily activities to where he was often so tired that he could not do much of anything. He described becoming paralyzed with anxiety about leaving the house in the event he missed a phone call for work, even though he had a cell phone. He denied suicidal and homicidal ideation. An April 2014 VA psychiatry outpatient note reflects that the Veteran endorsed hypnagogic auditory hallucinations, as well as vivid, sometimes violent dreams 3 to 4 nights per week. He also described avoidance, reexperiencing, changes in mood and hyperarousal. The Veteran denied any sustained low mood, but noted some obsessive thoughts and anxiety a few times, making a purchase and mild handwashing, not to level of compulsion. While the Veteran denied any suicidal/homicidal ideation at the time, he endorsed a past, apparently remote, suicide gesture with a superficial cutting of his arm. The Veteran was casually dressed and in good hygiene. He was pleasant and engaged, with a mostly euthymic mood/affect, but was very emotional and tearful discussing the trauma. MSE was normal. May 2014 and July 2014 VA psychiatric notes reflet similar findings and that the Veteran continued to work, despite some depression. An October 2014 VA note documents that medication had been effective "to a large degree." The Veteran was less tearful, but noted more difficulty with going out of the house due to anxieties. He found difficulty finding motivation to do the activities he enjoys. He denied having dreams anymore. On mental status examination (MSE) he was casually dressed and in good hygiene. He was engaged and his affect was euthymic, with no lability. Speech was regular. Thought process was linear and goal directed. He denied suicidal or homicidal ideation, as well as delusions. Cognition was grossly intact, and insight and judgment were good. In October 2014, the Veteran was afforded a VA examination. At that time, unspecified depressive disorder and antisocial traits were assessed. Examination resulted in the impression that the assessment resulted in 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 included depressed mood and anxiety. The Veteran was alert and oriented times three and had a somewhat antagonist manner. He was emotionally labile during the interview, and reported flashbacks and nightmares. He described that he heard footsteps and described an experience of being 'frozen stiff" and that it felt like there was someone that wanted to do him bodily harm. He reported hypervigilance, with some paranoid thought present. He carried a taser in his trunk and knives with him when he left the house. He denied suicidal ideation and had no desire to harm anyone specific in terms of aggressive impulses. The Veteran next received a VA examination in November 2016. Examination resulted in assessment of moderate, chronic, PTSD, as well as alcohol, opiod, and cannabis use, in full sustained remission. All symptoms identified on the examination were related to PTSD, and included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Overall, impairment was characterized as occupational and social impairment with reduced reliability and productivity. In terms of work history, the Veteran was then self-employed, working part to full-time. He estimated that he had held over 100 jobs in his working life, and was fired from at least half of them for making careless mistakes and hostile interactions with coworkers and customers. He had a history of incarceration in the 1970s due to theft, robbery, and possession of heroin. He was casually dressed and cooperative. Speech was fluent and psychomotor behavior was appropriate. His affect was labile, and mood was dysphoric. He cried at times. Insight was intact. Thought process was linear, goal-directed, and future-oriented. He denied hallucinations and delusions. He denied suicidal/homicidal ideation. Attention, language, and memory all appeared within normal limits. Of record is a personal statement from the Veteran's son dated in November 2017. In the letter, the son describes that the Veteran had never had a lasting intimate relationship with a woman, with all ending in anger or mistrust. He noted a history of nightmares and rumination. He related that the Veteran had been beaten up twice in the past month because of what he said to people. He described that his father slept with a 12-gauge shotgun and knife nearby when he slept. He stated that the Veteran had installed an electric fence and "booby traps" in his back yard, and was very reclusive and avoided crowds. He did not know of any friends that the Veteran may have had and stated that the Veteran had covered his windows in black plastic. On October 15, 2018, the Veteran received another VA examination, with a continued assessment of PTSD. In opening the examiner remarked that the Veteran's PTSD appeared to have worsened since the 2016 evaluation, primarily related to the Veteran's temper problems, lack of trust and lack of interest in social situations. In terms of overall impairment, the examiner characterized the PTSD as resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At this time the Veteran lived alone, had not been in a relationship in 4 years and had a strained relationship with his son, who had assaulted the Veteran a few months prior. In terms of activities, the Veteran grew marijuana that he shared with others, bought, and sold items online, watched TV and played with hs dogs. He had people in his life that he knew and spoke with, but had no close friends. He did not like people and attended AA meetings a few times per month. He remained self-employed. The Veteran was casually dressed, but his clothes and hands were noticeably dirty. During informed consent, he quickly and briefly became angry and was tearful towards the end of the evaluation. He had difficulties recalling the recent chronology of events. He was mildly tangential, but oriented to person, place, and task. There were no indications of psychosis. In support of his claim, the Veteran submitted a medical opinion from R.S. PhD, his treating psychiatrist at the VA medical center. In the letter, Dr. S. stated that he felt that the Veteran's rating was not commensurate with the severity of the Veteran's PTSD. Dr. S noted that the Veteran had been awarded a 70 percent evaluation and stated that it was his opinion that the Veteran was experiencing the "same rate and intensity of his symptoms in 2018 as he was in 2014." Dr. S. encouraged that the Veteran be awarded backpay. In August 2020, the Veteran was a VA examination to address his claim for service connection for residuals of a traumatic brain injury (TBI), the TBI stemming from the stressor that resulted in the Veteran's PTSD. The TBI examination report documents symptoms of mild memory loss with no objective findings, mildly impaired judgment, frequently inappropriate social interaction, occasional disorientation to orientation, person, time, place, or situation (occasionally gets lost in unfamiliar situations and has difficulty reading maps or following directions) and difficulty with anger, irritability and belligerence that had led to fights in the past. While the examiner noted that many of these symptoms overlapped with those of PTSD, the examiner could not separate them. In December 2020, the Veteran testified before the Board. In terms of symptoms, the Veteran described difficulty concentrating and having to re-read items, despite his intelligence, isolation, and difficulty in establishing and maintaining relationships, particularly romantic ones. He lived by himself and had an electric fence around his yard and used blackout curtains. He carried knives and mace for self-defense and answered his door with a gun in hand. He stated that he had no friends and did not trust anyone. While he was working, his job required little personal interaction. He described having "these things that are kind of dreams" in a "space" between sleep and being awake, where he got the impression that there was someone in his room coming to harm or kill him. He related that during these occasions he heard footsteps and was paralyzed with fear. These instances occurred about 2 times per month. He related having these symptoms for about 50 years. In resolving any doubt in the Veteran's favor, the Board concludes that a 70 percent evaluation is warranted throughout the entire period. VA and private treatment records, the VA examinations, the Veteran's testimony, and the lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating, difficulty in adapting to stressful circumstances, impaired impulse control, and an inability to establish and maintain effective relationships. While the Veteran has reported occasional hypnagogic auditory hallucinations, there is no indication that the Veteran has experienced persistent delusions or hallucinations associated with a 100 percent rating. VA examination in August 2020 reflects occasional spatial disorientation (occasionally getting lost in unfamiliar situations, difficulty reading maps or following directions), but not to person, time, or situation, consistent with the 100 percent criteria. Although the Veteran's clothes and hands were noticeably dirty on VA examination in October 2018, this is the only instance of poor hygiene indicated in the record. He also had frequently inappropriate social interaction. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. As noted above, while the Veteran experiences occasional hypnagogic auditory hallucinations, there is no indication of persistent delusions or hallucinations. Likewise, although there is occasional spatial disorientation (occasionally getting lost in unfamiliar situations, difficulty reading maps or following directions), there is no indication of disorientation to person, time, or situation, consistent with the 100 percent criteria. Moreover, while the Veteran's hands and clothes were dirty in October 2018, the Veteran has not experienced intermittent inability to perform the activities of daily living, including the maintenance of minimal hygiene. Further, while the Veteran was noted as having engaged in frequently inappropriate social interactions, this is related to impaired impulse control with a history of violence. Throughout the period the Veteran has worked in some capacity. Total occupational and social impairment is not shown. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and, to that extent, the appeal must be denied. The Board further finds that the Veteran's disability is fully capable of being rated under the Diagnostic Criteria. Resolving any reasonable doubt in favor of the Veteran, the Board will award the 70 percent rating for the entire appellate time frame, but no higher as the manifestations ordinarily associated with a 100 percent rating, as outlined above, have not been shown. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.