Citation Nr: A21019986 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 191219-58034 DATE: December 15, 2021 ORDER An increased evaluation of 70 percent disabling for posttraumatic stress disorder (PTSD) with major depressive disorder is granted, prior to a previously-assigned temporary 100 percent evaluation from December 5, 2019 to January 31, 2020 based on hospitalization over 21 days. FINDING OF FACT Throughout the period on appeal, the Veteran's symptoms of PTSD have manifested as occupational and social impairment with deficiencies in most areas, including with symptoms of suicidal ideation. CONCLUSION OF LAW The criteria for a disability rating of 70 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 2004 to February 2005, and from June 2008 to May 2009. The Veteran also had other periods of active duty for training and inactive duty. The rating decision on appeal was issued in November 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The appeal stems from an October 2019 VA 21-526EZ requested increased compensation for service-connected PTSD. In the December 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In June 2021, the Veteran testified at a video virtual hearing from Massachusetts, before the undersigned Veterans Law Judge sitting in the vicinity of the Central Office in Washington, D.C. A transcript of the hearing is available in the record. Subsequently, the Veteran submitted an additional VA Form 10182 in March 2020 to express disagreement with a rating decision issued in January 2020, which granted a temporary 100 percent evaluation for the Veteran's PTSD based on a period of hospitalization, and which thereafter restored the previous evaluation of 50 percent. This appeal has been separately docket at the Board on its Hearing docket and is currently pending the scheduling of the requested hearing. As such, the issue of whether a rating in excess of 50 percent is warrant from February 1, 2020 will be the subject of a separate Board action, as appropriate. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim for an increased evaluation for PTSD, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to an evaluation of 70 percent disabling for PTSD with major depressive disorder is granted, prior to a previously-assigned temporary 100 percent evaluation from December 5, 2019 to January 31, 2020 based on hospitalization over 21 days. The Veteran seeks an increased rating for his service-connected PTSD, presently evaluated as 50 percent disabling from October 7, 2019, with a temporary 100 percent rating from December 5, 2019 to January 31, 2020 based on hospitalization over 21 days. For the reasons that follow, an assignment of 70 percent is assigned throughout the period on appeal, with the exception of the temporary 100 percent assignment during the Veteran's period of hospitalization, which the Board intends will remain undisturbed. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). Separate ratings can be assigned for separate periods of time based on the facts found a practice known as "staged" ratings. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). However, for an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date. Otherwise, the effective date is the date of receipt of the claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); Hazan v. Gober, 10 Vet. All. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23 1998), VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. Under the General Rating Formula, in pertinent part, 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. 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, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. A maximum rating of 100 percent 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 or others, intermittent inability to perform activities of daily living, disorientation to time or place, and memory loss for names of close relatives, own occupation or own name. See 38 C.F.R. § 4.130. The symptoms associated with each rating under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. Suicidal ideation is one of the symptoms associated with a 70 percent disability rating, and it is not associated with any of the lower rating levels under the General Rating Formula. Thus, the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). The record shows that the Veteran receives regular medical treatment for his diagnosed PTSD and major depressive disorder (MDD). In October 2019, the Veteran underwent a VA examination as part of his claim for an increased rating. The examiner confirmed the Veteran's ongoing diagnoses of PTSD and MDD. During the examination, the Veteran described difficulties with his family and particularly with his spouse because of his disabilities. He worked part-time as a firefighter captain, and he reported an additional job as a heating, ventilation and air conditioning technician, which he described as high pressure. Stress and anxiety attacks caused him to sometimes miss work or leave work early. In July 2019, he was hospitalized for his mental health. He reported irritability and anger, intrusive memories, and periods of depression after flare-ups of his mental health condition. He reported lethargy, including difficulty attending at work and sometimes getting out of bed. The examiner documented panic attacks, but he did not indicate how frequently they occurred. During panic attacks, the Veteran experienced difficulty breathing and a racing heart. He also described general fear and difficulties with crowds. The examiner checked boxes on the disability benefits questionnaire form to indicate symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; impaired judgement; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting. It is important to further note that the examiner did not document any current suicidal ideations, but he noted a past history of passive suicidal ideations. The examiner summarized that the Veteran's mental health conditions caused occupational and social impairment with reduced reliability and productivity. See October 2019 Compensation and Pension (C&P) Examination. Such language is consistent with language in the General Rating Formula for an evaluation of 50 percent disabling. However, the symptom of difficulty in adapting to stressful circumstances, including work or a work like setting is listed among the examples for a 70 percent evaluation. The Board finds this examination is highly probative of the Veteran's mental health symptoms as reported in October 2019, based on the examiner's thorough discussion of the Veteran's mental health treatment history and disposition. However, the Board is mindful that the examiner did not closely address the Veteran's treatment for suicidal ideation, making only passing mention of the Veteran's hospitalization earlier that year. The Veteran was again hospitalized for in-patient treatment of his mental health disabilities in December 2019 - January 2020, for a period of six weeks. As previously noted, the Veteran has been assigned a temporary 100 percent evaluation for the duration of this hospitalization. During his hearing before the Board in June 2021, the Veteran and his representative expressed that the Veteran had experienced symptoms of suicidal ideation throughout the period on appeal. Medical records generally support a history of intermittent suicidal ideation due to the Veteran's psychiatric disabilities. Based upon this symptom, combined with the VA examiner's finding in October 2019 that the Veteran also experienced difficulty in adapting to stressful circumstances, including work or a work like setting, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's psychiatric disabilities have manifested as occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). As such, a 70 percent rating is warranted. A higher evaluation is not warranted, as the record does not support that the Veteran experienced total occupational and social impairment. Specifically, the Board observes that the Veteran has consistently reported that he maintains close relationships with fellow veterans and firefighters, as well as with his family. Although the Veteran has reported having strained relationships due to his service-connected disabilities, the record does not show that such strains amounted to total social impairment. See Total, Merriam-Webster, https://www.merriam-webster.com/dictionary/total (defining the adjective "total" as, among other entries, absolute). Moreover, the Veteran is presently employed full-time. He has indicated that stress at work is significant and sometimes leads to exacerbations of his mental health symptoms. Nonetheless, the Veteran has been able to maintain employment throughout the period on appeal, and therefore the record does not demonstrate total occupational impairment. The Veteran's current psychiatric symptomology and the impacts it cause on his occupation are contemplated by the now 70 percent rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."). Accordingly, the maximum evaluation of 100 percent is not supported by the record. (Continued on the next page) In sum, a 70 percent evaluation, but no higher, is warranted throughout the entire period on appeal prior to the period during which the Veteran is already in receipt of a 100 percent assignment based on hospitalization. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.