Citation Nr: 21072906 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-45 368 DATE: December 6, 2021 ORDER An initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran's PTSD is manifested by symptoms that more nearly approximated to occupational and social impairment with deficiencies in most areas, including persistent history of daily suicidal thoughts; total occupational and social impairment is not approximated. CONCLUSION OF LAW The criteria for an initial evaluation of 70 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to March 1991. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board, in pertinent part, denied the Veteran's claim for an initial rating for his service-connected PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 order, pursuant to a Joint Motion for Partial Remand (JMPR), filed by representatives for the Veteran and the VA Secretary, the Court vacated the portion of the March 2019 Board decision denying the Veteran's entitlement to a higher initial rating for his service-connected PTSD and remanded the matter to the Board for appellate consideration. Subsequently, the Board remanded the matter for additional development in November 2020 and March 2021. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a higher initial evaluation for service-connected PTSD Legal Criteria The Veteran's PTSD has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, under the general rating formula for mental disorders, which became effective prior to the Veteran's claim for service connection. Under DC 9411, a 50 percent rating is warranted when a 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- 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. Id. A 70 percent rating is warranted where an acquired psychiatric disability causes 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 ideations; obsessional rituals that 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. Id. A 100 percent disability rating is assigned 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, or for the veteran's own occupation or name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Factual Background A VA PTSD Disability Benefits Questionnaire (DBQ) dated in November 2012, shows that the examiner noted that the Veteran had reported moderate symptoms of PTSD that included feelings of hypervigilance, intrusive thoughts, and anger towards other inmates, and that he avoided other inmates. The examiner further noted that the Veteran's symptoms had improved over his six years of incarceration, with better functioning and increased mood stability, such that he would function better in the community than he did prior to his incarceration, although he might decompensate under the increased stress. The Veteran reported that he has been married since 1994. His symptoms were noted to include depressed mood, anxiety, suspiciousness, and chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. A VA PTSD DBQ dated in December 2017, notes the following: While in prison, the Veteran has maintained regular contact with his wife, mother, and biological son. The Veteran has been married for 23 years but he was unable to describe how he views his marriage or his relationship with his wife when asked. He denied having a relationship with his biological daughter, which appeared distressing to him. It is unclear if Veteran has any close relationships in prison. He denied having any friends but then later in the examination he stated that he sits around the table with his friends. He also compared his cell mate to being "like a son." The Veteran explained that he spends most of his time reading and denied any other hobbies or interests. He noted that he tends to isolate and keep to himself. He moved into the Veteran's prison unit approximately three years ago and denied any interpersonal difficulties with other inmates or correctional officers; however, he noted that one inmate recently pointed out to Veteran that he "always seems to find things to [complain] about." The Veteran reported symptoms that included "mood swings, anxiety, and depression." He said that he experiences intrusive thoughts, that he feels anxious and hypervigilant in crowds, and that he tries "not to think about things." However, he was very vague in his responses and often did not provide the frequency and/or intensity of his symptoms. He denied any significant concerns related to sleep. He said that he has found ways to manage his anxiety and that other Veteran inmates have been respectful and responsive to his needs. He reported vague, passive suicidal ideation (e.g., "[my] family would be better off without me"] but he denied any plans or intent. He was unable to recall that last time he experienced suicidal thoughts. He stated that suicidal thoughts occur when he thinks about not having a relationship with his daughter or distress around visitations from his mother. He reported a history of a bipolar diagnoses, and that he experiences manic symptoms a couple times per month that last for a "few days" in duration. During these episodes he does not sleep, experiences racing thoughts, has increased energy, and finds himself to be more friendly and outgoing. His depressive episodes he noted that they usually last about 5 days and he became more isolative and irritable. He stated that he had been in a depressive episode since before Thanksgiving; however, his affect was not congruent with reported mood. He reported attending therapy about every 60 days. The Veteran submitted his correctional health services records during which he reported that he estimated that he has made 20 suicide attempts. At a July 2021 medical treatment, the Veteran explained that he was started on Depakote and Effexor in 2008 and that he cannot take any other medications because he gets homicidal. The Veteran rated his current depression as an 8 out of 10 and that he thinks of suicide daily. The Veteran reported no homicidal thoughts for the past 15 years and that he has not had prison discipline for violence since incarceration. The Veteran reported nightmares and flashbacks due to his military trauma and that he has nightmares every night which interfere with his sleep. The attending physician opined that the Veteran is low risk for suicide and self-harm but that he is currently depressed with suicidal thoughts. Regarding his marriage, the Veteran reported that he believes that his wife wants him to be angry so that she has an excuse to divorce him. See February 2020 treatment note. Analysis The Board finds that throughout the appeal period, the Veteran's PTSD is manifested by symptoms that more nearly approximated to occupational and social impairment with deficiencies in most areas. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). As noted above, the Veteran has a persistent history of daily suicidal thoughts. While the record indicates that the Veteran consistently has no plan to act on these thoughts, the Board notes that the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130" indicates that the presence of suicide ideation alone, may cause occupational and social impairment in most areas.") Additionally, the evidence of record demonstrates that the Veteran's PTSD has impaired his mood to the point where he feels constantly depressed. Based on the foregoing, the Board finds the Veteran's occupational and social impairment throughout the period of the claim most nearly approximates deficiencies in most areas, as required for a 70 percent rating. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. A disability rating in excess of 70 percent for PTSD has not been approximated at any time throughout the period of the claim. The evidence of record does not support a finding that the Veteran's impairment due to his PTSD has more nearly approximated total occupational and social impairment, and a 100 percent rating must be denied. The evidence indicates that the Veteran has maintained regular contact with his wife, mother, and biological son and described his cell mate as a "like a son" and stated he would eat lunch with others in prison, indicating some degree of social functioning throughout the appeal period. Further, at no time during the appeal has the record demonstrated gross impairment in thought process 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. As such, the Board finds that the weight of the evidence demonstrates that the Veteran's symptoms, and resulting functional impairment, during the appeal period do not result in the required level of impairment occupational and social impairment to be more closely described by the 100 percent criteria. Accordingly, the Board finds that to the extent that the Veteran has argued that a 100 percent rating is warranted for PTSD, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. §§ 4.3, 4.7. Pursuant to Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Board has considered the applicability of staged ratings; however, the Board finds that a uniform rating of 70 percent, but no higher, is warranted for the period on appeal. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.