Citation Nr: 21075725 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-50 891 DATE: December 21, 2021 ORDER Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) and other specified trauma and stressor related disorder is denied. FINDING OF FACT The Veteran's service-connected psychiatric disorder is characterized by suicidal ideation, impaired impulse control, depression, anxiety, sleep impairment, hypervigilance, and social isolation. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) and other specified trauma and stressor related disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411-9410 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to March 1971. This matter came before the Board of Veterans Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a May 2021 hearing. The transcript of the hearing is of record. A May 2021 Board decision granted service connection for PTSD and entitlement to a 70 percent rating for other specified trauma and stressor related disorder, while remanding the issue on appeal for additional development. The Board recharacterized the issue to include both psychiatric disorders under one disability rating in accordance with VA law and regulations, which was applied in an August 2021 rating decision with a hyphenated code. 38 C.F.R. § 4.14. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability's severity, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the 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 rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency, and duration, have caused the level of occupational and social impairment associated with a rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) and other specified trauma and stressor related disorder The Veteran contends that he is entitled to a higher rating for his psychiatric disability. The Board concludes that a rating above 70 percent is not warranted. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9410, 9411. For the entire period on appeal, the Veteran has been rated under Diagnostic Code (DC) 9411-9410 for PTSD and other specified trauma disorder, which are evaluated under the General Rating Formula for Mental Disorders. Under the DC, the criteria for a 70 percent rating are 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); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are 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 of others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. VA treatment records document psychiatric treatment. October 2016 records noted that the Veteran was withdrawn, with anxiety, mild panic attacks and poor sleep. The provider also noted problems with anger, including yelling and breaking things. November 2016 records noted symptoms of depression, anxiety, and nightmares. December 2016 records noted depression, with mood up and down. The provider noted that confrontations with others were less frequent but that the Veteran got angry and yelled 4 times in the prior month. The provider noted that the Veteran was isolated other than his wife. The Veteran denied current suicidal thoughts but stated that at times he felt that life was not worth living. In March 2019, the Veteran reported anxiety, depression, and thoughts of suicide. August 2019 records noted increased irritable mood, flashbacks, and intrusive memories. A February 2016 VA examination noted the Veteran's reports of sleep problems, bad memories, and anger problems. The examiner found symptoms of anxiety. A June 2017 VA examination noted that the Veteran appeared to be self-medicating his active PTSD symptoms. The examiner found symptoms of depression, anxiety, and suicidal ideation. The Veteran reported anger problems, stating that he threw and broke things. He also reported problems with focus. The examiner observed that the Veteran had significant anxiety that was characteristic of PTSD. The examiner also noted an increase in irritability, isolation, and nightmares. A September 2021 VA examination concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner found symptoms of depressed mood, anxiety, chronic sleep impairment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The Veteran reported thoughts of suicide, loneliness, worthlessness, feelings of inadequacy, anger, and intrusive memories. He also reported that he self-medicates with marijuana. The Veteran noted that while he remains employed, he is interested in retiring in order to travel. The examiner observed that the Veteran was adequately groomed, spoke in full sentences with no speech deficits, and denied suicidal or homicidal ideation. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight with respect to the severity of the Veteran's psychiatric disorders at the time of the examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the May 2021 Board hearing, the Veteran reported ongoing thoughts and intent to harm himself, more often in the last 10 years since he retired. He stated that the thoughts had been there consistently before that time, but he did not focus on them. He also stated that he was socially isolated and withdrawn. The Board notes that the Veteran is competent to report lay-observable symptoms such as suicidal thoughts and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996). The Board finds that the preponderance of the evidence is against an evaluation above 70 percent for the period on appeal. The medical evidence of record does not support the conclusion that the Veteran's overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation based on total occupational and social impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. That is, the competent evidence of record does not show that the Veteran experiences: gross impairment in thought processes or communication, 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. The Board finds that the evidence of record indicates that the Veteran's psychiatric disability has been characterized by suicidal ideation, impaired impulse control, depression, anxiety, sleep impairment, and social isolation. The Veteran's VA providers noted ongoing anger and irritability with outbursts of yelling and throwing and breaking objects occurring multiple times per month. Both VA examinations noted depression, anxiety, sleep impairment, passive suicidal thoughts, anger with outbursts, and social isolation. All of these symptoms are contemplated by the 70 percent rating already assigned. The Board also finds that the record does not contain evidence of symptoms associated with a 100 percent rating. The evidence does not indicate that the Veteran exhibits illogical speech, spatial disorientation, or neglect of personal hygiene. The November 2016 VA treatment records noted that the Veteran was alert, oriented, and his grooming was found to be adequate. The September 2021 VA examination similarly found that the Veteran's speech was normal, that he was alert and oriented, and that his grooming was adequate. There is nothing in the record to suggest persistent delusions or hallucinations, significant memory loss, or gross impairment in thought processes or communication as contemplated by a 100 percent rating. While during the May 2021 Board hearing the Veteran stated he had retired 10 years ago from full time employment, he reported during his September 2021 VA examination that he remains employed part time in real estate. In noting his plans for future full retirement, he did not state that this was due to his psychiatric symptoms but rather a desire for travel and self-fulfillment. The Veteran's symptoms are not indicative of total occupational and social impairment. Regarding suicidal ideation, the Veteran has submitted competent and credible lay evidence regarding recurrent suicidal ideation throughout the period on appeal. However, the 100 percent rating criteria include evidence of persistent danger to the Veteran or others, rather than passive thoughts without plan or intent. While the Veteran did report a previous violent interaction, passive suicidal thoughts, and anger none of his treatment providers or VA examiners found he was a persistent danger to himself or others. The record is silent for any psychiatric hospitalization, suicidal attempts, or evidence of homicidal thoughts or attempts. The providers and VA examiners noted passive suicidal ideation and thoughts of death, but the Veteran consistently denied any plans or intent of suicide or homicide during the period on appeal. The Board therefore finds that the evidence does not indicate that the Veteran has persistent danger of hurting himself or others. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board finds that the Veteran's overall picture more nearly approximates that of a 70 percent disability rating, and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 100 percent rating. A rating in excess of 70 percent is therefore not warranted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.