Citation Nr: 21075081 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-53 265 DATE: December 17, 2021 ORDER A 70 percent disability rating for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Since November 5, 2013, the Veteran's service-connected PTSD has been manifested by no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment has not been demonstrated. CONCLUSION OF LAW The criteria for a 70 percent disability rating for the service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2000 to March 2013. The Veteran passed away in December 2014 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to a September 2020 Board decision, the Board, in pertinent part, denied the Veteran's claim for an increased disability rating in excess of 30 percent for the service-connected PTSD. Thereafter, the appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By a June 2021 Order, the Court vacated the September 2020 Board decision to the extent it denied the claim and remanded the claim back to the Board for compliance with instructions pursuant to a May 2021 Joint Motion for Partial Remand (JMPR). The Court noted that the appellant made no argument about the Board's denial of a total disability rating based on individual unemployability (TDIU) for accrued benefits purposes or its denial of survivors' pension benefits before January 1, 2018, so the Court dismissed the appeal regarding those claims. The Court did not disturb the Board's grant of survivors' pension benefits for the period beginning January 1, 2018. Entitlement to a 70 percent disability rating for PTSD is granted. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for PTSD was originally granted in an August 2013 rating decision and a 30 percent evaluation was assigned effective from March 2, 2013. In November 2014, the Veteran submitted a claim for an increased rating for his PTSD. Pursuant to the September 2017 rating decision, which is the subject of this appeal, the RO continued the 30 percent evaluation for the Veteran's PTSD. As the Veteran submitted his increased rating claim on November 5, 2014, the period on appeal, which includes the one-year lookback period, begins on November 5, 2013. PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from PTSD under 38 C.F.R. § 4.130 is not restricted to the symptoms in DC 9411. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013)). Under DC 9411, a 30 percent rating is warranted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted for 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 worklike setting); and inability to establish and maintain effective relationships. Id. A (maximum) 100 percent rating is warranted 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 and 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. Id. The evidence pertaining to the severity of the Veteran's PTSD since November 5, 2013 consists essentially of VA treatment records and lay statements. On review of such evidence, the Board finds that since November 5, 2013, the Veteran's PTSD symptoms are shown to have more nearly approximated a level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, the degree of disablement required for a schedular 70 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA mental health treatment records dated November 26, 2013 include a mental status examination which revealed the Veteran had good eye contact and neat hygiene. He was oriented to person, place, time and situation. He had depressed and pleasant moods, with affect appropriate to mood. His behavior was cooperative behavior. His speech was appropriate speech. Thought content was goal-directed. The Veteran had good concentration and judgment. The Veteran denied having any hallucination or delusions. He also reported no current or history of suicidal ideation or behavior. A PCL-C assessment tool for PTSD revealed that the Veteran reported that "a little bit" of the time he suddenly acted or felt as of the past stressful experience was happening again (as if he was reliving it); he had trouble remembering important parts of the past stressful experience, and felt as if his future somehow would be cut short. He responded "Quite a bit" to experiencing repeated disturbing memories, thoughts or images of the past stressful experience; physical reactions (e.g., heart pounding, trouble breathing, sweating) when something reminded him of the past stressful experience; avoided thinking about or talking about the stressful past experience or avoided having feelings related to it, and avoided activities or situations because they reminded him of the past stressful experience. He had a loss of interest in activities he used to enjoy, had trouble falling or staying asleep, felt irritable or had angry outbursts, was super alert or watchful or on guard, and felt jumpy or easily startled. He had repeated disturbing dreams of the past stressful experience, felt distant or cut off from other people, felt emotionally numb or unable to have loving feelings for those close to him, and had difficulty concentrating. He "extremely" felt very upset when something reminded him of the past stressful experience. A March 2014 VA mental health treatment note showed the Veteran reported he felt stressed at work as it would be "bumper to bumper" when it got really busy, and he reported feeling overwhelmed at times. He stated his boss was very understanding as he has a brother with similar concerns as the Veteran. Mental status examination at that time was normal and the Veteran denied any current suicidal or homicidal ideas, plans, intent and the Veteran was noted to have a strong support system. The clinician stated that while it was not possible to make an absolute determination as to future behaviors, the current opinion was that the Veteran was not believed to be an acute risk of harming himself or others. A November 2014 mental health treatment record revealed mental status examination was normal. The Veteran denied any current suicidal or homicidal ideas, plans, intent and the Veteran was noted to have a strong support system. The clinician stated that while it was not possible to make an absolute determination as to future behaviors, the current opinion was that the Veteran was not believed to be an acute risk of harming himself or others. In a November 2014 statement from the Veteran's wife, she stated that she has encountered several obstacles while dating and marrying the Veteran. She stated there are several thing that married couples do that they are unfortunately unable to do together. As a couple, they spent most of their time at home due to the Veteran's anxiety and extreme nervousness. They were unable to go to watch a movie at a movie theater where there are crowds, walk the malls or department stores because it made the Veteran very unsettled. She stated that when they have to grocery shop, they only get what is needed and if there are too many people at the store, the Veteran would have to leave the store. She stated that when they try to go out to eat, they have to sit in specific areas of the restaurant and if the environment becomes too loud or has too much activity, the Veteran cannot enjoy himself. He also had difficulty sleeping as he was very restless and unsettled at night. She stated there were several occasions where he had nightmares and accidentally hit her during his sleep. His restlessness had resulted in many sleepless nights for her as well. Per a November 2014 statement from the Veteran's prior representative, the Veteran was reportedly employed but when the store became busy and noisy, he was unable to stay in the same room. He was reported as only working because he needed the income. In a June 2020 statement from the Veteran's surviving spouse, she stated that she began dating the Veteran in 2006 and they were married in 2010. She stated she noticed changes in her husband due to his PTSD and his condition worsened over the years until his death in December 2014. She reported that the Veteran had a full-time job but beyond his work, he would socialize minimally. At home, he mostly stayed to himself and did not talk much. Generally, he was easily irritated or aggravated and did not want to go anywhere. He did not sleep a lot, maybe only two to three hours per night and would take a nap when he got home from work. He would have nightmares every week which would cause him to flail his arms and fight in his sleep. He would talk in his sleep as if he were talking to soldiers. She stated that she believed the Veteran would have multiple flashbacks per month. When he experienced flashbacks, his demeanor changed, and he would want to be alone. He kept to himself when feeling like this because he did not want what he was experiencing to affect anyone else. She further stated that the Veteran was employed doing counter sales but did not have customer service skills. He was not very social. At times, she would go see him at work and she witnessed him being short with the customers. He would talk about not trusting anyone and not being comfortable coming into contact with people. She stated he was on the ground during service and told her that while deployed, he never knew if someone was going to blow him up. She stated that he acted the same way when he was home; it was just how he treated people. She stated she ran the errands and paid the bills for them as he was a homebody. His children were involved in sports and the only time he left the house besides work was when they would go to the children's games together, as he was not comfortable going alone. She stated they attended soccer and baseball games outdoors and would bring their own chairs and would have to stay separate from the other spectators so he could be comfortable. She reported that when the Veteran's aggression was very high, he would keep to himself. They would still converse but only very briefly. She knew the right times to talk to him and the times not to. He coached his son's baseball team and was only comfortable doing so because the other coach was a friend he grew up with. Beyond this, he did not really socialize with anyone except for her family and his. Other than some military friends he talked to online, he kept his trust with his children, her, her mother, and his parents. She stated they only went out to eat on special occasions such as birthdays and Valentine's day. She remembered that he had to be able to see the door from where he was sitting and made sure he did not have his back to anyone. Driving was also a challenge. If someone cut him off, he would become very aggressive. She stated it was road rage. He would try to chase the person down and he did not understand that there could be repercussions for that. She further stated that the Veteran developed certain aggravations following his deployment. He could not stand hearing someone chomp on food. Whenever they were in the car, she would make sure the children did not have anything crunchy because they would get punished for chewing on chips. He would get very verbal and could say some hurtful words. They also had two dogs and he would get very frustrated if they did not do what he said right when he said it. It would set him off and he would yell, speak aggressively and use bad language. She would try to keep him away from the pets. She also recalled him expressing suicidal ideation on two occasions. Because of the pain he experienced, he was not sure if he wanted to keep going. He did not want her to have to take care of him. She stated he was more or less calm when this came up in conversation, saying that he did not know if he could go on. It was sincere and not said out of aggression. She had to talk him out of it, reminding him that he had children. He was tired. One of the times it came up was about six months prior to his death. She stated she did not know how often he thought about suicide and did not express that to her. She stated he was startled easily and did not like loud noises. She remembered once dropping a jar of pickles and the jar hitting the floor threw him into panic mode. He was speechless, looked scared and told her to be more careful. He also had a difficult time remembering things and concentrating. She would have to remind him when his children's games were scheduled over and over. When it came time to pay bills, he could not remember what was due and what was already paid. She concluded the statement by noting the Veteran was a very strong, intelligent and determined man, but his PTSD was something that impacted him every day that she knew him. Resolving reasonable doubt in favor of the Veteran, the Board finds that the disability picture reflected by the evidence of record for the period in question appears more closely aligned with the criteria for a 70 percent rating (occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood), than those for a 30 percent rating (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 conversation normal)). While the Board notes that the Veteran continuously denied suicidal ideation on VA treatment records, the appellant testified that he did in fact experience suicidal ideation and expressed such to her on two occasions. She also reported that the Veteran did not trust anyone outside of his immediate family, which could account for his denial of such to VA treatment providers. Further, the Veteran's VA treatment records, as well as the lay statements of record, show the Veteran with depression affecting the ability to function independently, impaired impulse control, and difficulty in adapting to stressful situations, as demonstrated by the fact that he does not go many places besides work and would not attend his children's sporting events without his wife and even when doing so, they would have to sit separate from everyone else. In addition, the Veteran was reported as having road rage and would get angry by the crunching of chips. He would also have to leave the floor at work if the store became too busy or noisy. Accordingly, the Board finds that the Veteran's disability picture more nearly approximates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to symptoms of a frequency, severity, and duration more closely approximating the criteria for a 70 percent rating. Therefore, for the period on appeal since November 5, 2013, a 70 percent disability rating is granted. The Board further finds that a rating in excess of 70 percent is not warranted. The disability picture derived from the medical evidence of record concerning the period in question is not more closely aligned with the criteria for a 100 percent rating (i.e., total occupational and social impairment). This conclusion is consistent with the level of functioning otherwise shown (including by his own reports), and pursuant to VA mental health treatment records as well as the appellant's lay statements. In this regard, the Veteran's PTSD had not been manifested as total occupational and social impairment. Although the Veteran had some trouble at work and with his personal relationships, records show that the Veteran worked full time. Moreover, while he may have avoided social interactions with others and seemingly preferred to be alone, he was able to remain married to his wife and had a good relationship with her and his children, as well as his parents and his wife's mother because those were the only people he trusted and was also noted to have a strong support system. Further, the record does not show that the Veteran exhibited persistent delusions or hallucinations, gross impairment in thought processes or communication, and/or an inability to perform activities of daily living. Indeed, while the Veteran may have had trouble remembering whether a bill was due or had already been paid, he had not been reported as incapable of managing his finances and performing activities of daily living. Accordingly, as the evidence failed to show that the Veteran was totally occupationally and socially impaired, the Veteran's service-connected PTSD does not meet the criteria for a 100 percent disability rating. (Continued on the next page) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Roya Bahrami Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina 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.