Citation Nr: 21077029 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-54 476 DATE: December 28, 2021 ORDER An initial 70 percent rating for post-traumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the entire period on appeal, symptoms of the Veteran's PTSD most closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Throughout the entire period on appeal, the criteria for an initial 70 percent rating for PTSD have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1991 to November 1994, and from August 2004 to February 2006. An initial 70 percent rating for service-connected PTSD, but no higher, will be granted because the evidence shows that symptoms of the Veteran's PTSD most closely approximate occupational and social impairment with deficiencies in most areas. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An initial 70 percent rating for PTSD is granted. The Veteran's PTSD is currently rated as 50 percent disabling under 38 C.F.R. § 4.130, DC 9411. Under 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. 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 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 work like setting), and an inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an 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 U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Non-VA medical records show treatment with Dr. J.W.L., beginning in October 2015. At that time, Dr. J.W.L., stated that the Veteran's frequent intense episodes of anger are the most problematic symptoms of his condition. Dr. J.W.L., noted that the Veteran is clearly a harsh disciplinarian with his children, and he appears to punish in anger. In the August 2016 private psychotherapy note, the Veteran reported that his episodes of anger have continued but that he has been able to control his behavior since beginning therapy. The Veteran reported that he was able to "mostly enjoy" vacation time with his children. However, he reported that movies and news showing violence have continued to trigger anger, worry, negative memories of in-service stressors, and create agitation and insomnia. The Veteran reported recent episodes of anger, mostly around family. He reported that he continues to struggle to diffuse anger once it is aroused, and has trouble removing himself from the scene of the conflict to prevent escalation. He reported difficulty sleeping, and difficulty with stimulation of high arousal and traumatic memories. The Veteran described his work performance as good, and his home life as troubled due to opposition from his younger son. During the January 2017 VA PTSD examination, the Veteran reported that he has been married 13 years and reported having occasional difficulties due to problems with anger and irritability. He reported road rage and that he sometimes loses his temper with people. He reported that he spends time at the beach with his family about once a week, attends his children's sporting events, and is involved in social and leisure activities with his immediate family. However, he denied socializing with friends. The Veteran reported that he is currently employed, and he generally gets along well with co-workers and supervisors. However, he reported that he has difficulties with some co-workers whom he sees as "lazy." He reported working for over 12 years at his current job. The Veteran denied occupational impairment and reported that he rarely misses work. The Veteran endorsed symptoms of anxiety and chronic sleep impairment. The examiner noted that the Veteran did not meet the DSM-V diagnostic criteria for PTSD; however, the Veteran was diagnosed with other specified trauma or stressor related disorder. The examiner noted that the Veteran experiences 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. During the September 2017 VA PTSD examination, the Veteran reported significant symptoms of intrusion, arousal, and cognitive/mood problems related to traumatic in-service events, triggered by recollections of traumatic events. The examiner noted a diagnosis of PTSD and that the current diagnosis is a correction of the previous diagnosis that found that the Veteran did not meet the DSM-V diagnostic criteria for PTSD. The examiner noted that the Veteran experiences occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported that he has been married to his spouse since 2003. He reported that his spouse had three daughters prior to their marriage, and he was involved in raising them. He described his relationships with the children as "alright," but more difficult with his sons. He described his relationship with his spouse as "pretty good" with "ups and downs." The Veteran reported that he has worked full-time in his current job since 2004, and that he likes his job. However, he reported that he has a hard time with some co-workers with whom he has had some verbal arguments, but he avoids them. The Veteran reported that he recently saw a dead pig while driving when he had a flashback of an improvised explosive device (IED) detonation. He described other recollections of combat service incidents and survivor's guilt. The examiner noted that the Veteran's PTSD symptoms were characterized by flashbacks; nightmares; avoidance; disruption of cognition and mood; angry outbursts; easy startle; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran denied hallucinations, delusions, and suicidal ideation. During the August 2021 Board hearing, the Veteran testified that he experiences the following symptoms, which are attributable to his PTSD: loss of control; easy to anger, to include several close incidents of near violent behavior; violent outbursts; difficulty with personal relationships; daily depression with anxiety; loss of work time; self-isolation; neglect of personal appearance, to include infrequent teeth brushing; obsessive behavior, such as checking windows and doors; road rage; and prior episodes of domestic violence. At the time of the hearing, the Veteran was observed as very disheveled, and possibly intoxicated. The Veteran's PTSD most closely approximates a 70 percent rating, throughout the entire period on appeal. 38 C.F.R. § 4.7. Throughout the entire period on appeal, the evidence shows that the Veteran has had impaired impulse control, such as unprovoked irritability with periods of violence and, at times, neglect of personal appearance and hygiene. The evidence also shows that the Veteran experiences intrusive recollections and flashbacks of traumatic events in-service. Although the record shows that the Veteran has a good relationship with his spouse and children, and is involved in activities with his immediate family, the record also shows that the Veteran does not maintain relationships with extended family or friends. Therefore, symptoms of the Veteran's PTSD most closely approximate a 70 percent rating, but no higher, throughout the entire period on appeal, and the appeal is granted. 38 C.F.R. § 4.7. However, a 100 percent rating is not warranted, at any time during the period on appeal, because the evidence shows that the Veteran has had good relationships with his spouse and children, is involved in activities with his immediate family, and has been able to maintain full-time employment in his current position, since 2004; a job that he likes. The evidence also does not show that the Veteran has had gross impairment in thought processes or communication, persistent delusions or hallucinations, a persistent danger of hurting himself or others, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Therefore, the next higher, 100 precent rating, is not warranted at any time during the period on appeal and, to this extent, the appeal is denied. Id. In conclusion, symptoms of the Veteran's PTSD most closely approximate a 70 percent rating, but no higher, throughout the entire period on appeal, and the appeal is granted. 38 C.F.R. § 4.7. To the extent that the claim has been denied, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.