Citation Nr: 21076033 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-61 258 DATE: December 22, 2021 ORDER An initial rating of 70 percent, but no higher, for the service-connected posttraumatic stress disorder (PTSD) is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The Veteran's service-connected PTSD has been manifested by no worse than occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood throughout the entirety of the appeal period. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for the service-connected PTSD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2004 to November 2004, from November 2005 to April 2006, from May 2007 to May 2008, and from December 2008 to January 2010. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2014 rating decision. The Veteran initially requested to appear for a virtual Board hearing. However, he formally withdrew his request for a hearing in a written statement dated July 2021. Accordingly, his hearing request before the Board is considered withdrawn. Increased Rating PTSD Disability ratings are determined by applying the criteria set forth in the 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 be practicably 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Psychiatric disabilities are rated under the General Rating Formula for Mental Disorders. The criteria under this formula shall be considered no matter which diagnostic code is assigned. 38 C.F.R. § 4.130. The psychiatric symptoms listed in the rating criteria do not constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Rating Formula, a 30 percent rating is assigned when the evidence shows 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 behaviour, 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 assigned when the evidence shows 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 assigned when the evidence shows 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); or inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or memory loss for names of close relatives, occupation, or own name. Id. Also, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms; the length of remissions; and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran was initially granted service connection for PTSD in an August 2014 rating decision at 30 percent disabling, effective March 15, 2013. During the course of this appeal, an October 2016 rating decision increased the Veteran's PTSD disability rating to 70 percent, effective March 25, 2015. He contends that his initial rating for his service-connected PTSD should be in excess of 30 percent prior to March 25, 2015, and in excess of 70 percent on and thereafter. In January 2014, the Veteran underwent a private psychological evaluation. During his evaluation, he reported that he was living with his fiancé and son and was currently employed. He reported irritability, outbursts of anger, and on-going restlessness. He stated that he feels angry a lot and often snaps at others. He also stated that he feels his anger and reactivity is affecting his relationships. He reported that he does have a few friends, but he does not participate in social activities often. The examiner noted that he was groomed appropriately, oriented and alert with good eye contact. His affect was appropriate, his speech was logical, coherent, and goal-directed, his memory was not impaired, and his psychomotor activity was normal. He was cooperative, with good judgment, and denied any hallucinations. In May 2014, the Veteran was afforded a VA examination to assess his PTSD. The Veteran reported that he is engaged, has a young son, and has some friends that he has contact with occasionally. However, he reported that there are problems in his relationship with his fiancé due to his anger issues. He feels angry most of the time which causes him to snap at those around him unprovoked. He tries to isolate himself from others, but sometimes his anger leads to violent outbursts. He stated that sometimes his violent outbursts involve destroying his property, such as electronic devices. He also reported experiencing recurrent nightmares, hypervigilance, exaggerated startle response, problems with concentration, anxiety, panic attacks weekly, and chronic sleep impairment. The examiner noted that the Veteran was cooperative with good eye contact, and his appearance and speech were appropriate. His affect was noted as restricted and his mood was dysphoric. His attention, orientation, thought process, and thought content were all within normal limits. He denied any hallucinations, delusions, suicidal or homicidal ideations. His judgment and insight were normal, and he is capable of managing his financial affairs. The examiner opined that the Veteran's symptoms are not severe enough to interfere with occupational and social functioning. In March 2015, the Veteran was afforded another VA examination. He reported that he is employed and has a good relationship with his wife, but feels that his other family relationships are strained. He also reported that he continues to struggle with his anger. He wakes up angry and has had violent outbursts during which he has smashed a computer and thrown a phone. He stated that his wife is afraid of his road rage. He also reported chronic sleep impairment, anxiety, hypervigilance, difficulty concentrating exaggerated startle response, depressed mood, suspiciousness, difficulty understanding complex commands, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that his PTSD causes occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. VA and private mental health records reveal that the Veteran has consistently reported experiencing symptoms of anxiety, irritability with violent outbursts, hypervigilance, chronic sleep impairment, difficulty concentrating, and impaired impulse control throughout the appeal period. However, he has consistently noted to be oriented and cooperative at VA examinations and VA psychiatry visits, and consistently denied suicidal or homicidal ideation, delusions, or hallucinations. There are no treatment records associated with the claims file that indicate his PTSD symptoms were more severe than those exhibited at his private evaluation, VA examinations, or VA psychiatry visits at any time during the appeal period. In light of the above, there is evidence in favor of both a 50 percent rating and a 70 percent rating for the service-connected PTSD prior to March 25, 2015. As noted above, when two ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this regard, the Board finds significant the fact that the Veteran has consistently experienced impaired impulse control, including periods of unprovoked irritability and threatening outbursts, throughout the entire period on appeal, which is specifically contemplated by the 70 percent rating criteria. Thus, resolving any reasonable doubt in his favor, the Board finds that his disability picture more nearly approximates that of a 70 percent disability rating prior to March 25, 2015. The Board also finds that the record does not establish that the Veteran's PTSD symptomatology resulted in total occupational and social impairment (supportive of a total schedular rating) at any time during the period on appeal. While the Veteran's psychiatric symptomatology has decreased his ability to establish and maintain effective relationships, it cannot be said that he has been totally socially and occupationally impaired at any time throughout the appeal period. He has consistently reported a good relationship with his wife and son and has consistently reported being employed. As such, the criteria for a 100 percent rating for his PTSD has not been shown at any time during the period on appeal. Accordingly, a disability rating of 70 percent, but no higher, for the Veteran's PTSD is granted for the entire period on appeal. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, Associate 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.