Citation Nr: A21020548 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 190521-22252 DATE: December 27, 2021 ORDER A rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD has been characterized by suicidal ideation, near-continuous depression, inability to establish and maintain effective relationships, suspiciousness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, irritable behavior, hypervigilance, concentration disturbances, and sleep disturbances. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for PTSD, have been met. 38 U.S.C. § §§ 1155, 5103, 5103A, 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 in the Navy from July 1971 to July 1980. In an April 2019 rating decision, the agency of original jurisdiction (AOJ) denied a rating in excess of 50 percent for PTSD. In May 2019, the Veteran timely appealed the April 2019 rating decision to the Board of Veterans' Appeals (Board) and requested a hearing with a Veterans Law Judge. The Veteran testified before the Board at a hearing in June 2021. A transcript of the hearing has been associated with the claims file. As the Veteran requested a hearing under AMA, the Board may only consider the evidence of record as the date of the applicable rating decision and any evidence presented at the Board hearing and within 90 days following the Board hearing. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. PTSD Ratings for PTSD are assigned under 38 C.F.R. § 4.130, DC 9411. The Veteran is currently assigned a 50 percent rating throughout the period on appeal. Under DC 9411, for the 50 percent rating criteria, the evidence must show 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. For the 70 percent rating criteria, the evidence must show 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a Veteran's PTSD causes 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 (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. The Board has reviewed the evidence of record and finds that a 70 percent rating, but no higher, for PTSD is warranted throughout the period on appeal. In the June 2021 Board hearing, the Veteran's representative asserted that a 70 percent rating is warranted for the Veteran's PTSD symptoms, specifically including the symptom of suicidal ideation. The Veteran stated that he was evaluated by a private medical provider and that this evaluation consisted of multiple visits over a three-month period as well as a six-hour evaluation. He stated that he felt the private examination was very thorough and that he was able to fully express the severity and frequency of his psychiatric symptoms. Further, he stated that his most recent VA examination consisted of only a 20-minute interview and that he did not feel his psychiatric symptoms were properly evaluated during the examination. In January 2017, the Veteran submitted a private psychiatric evaluation and disability and benefits questionnaire (DBQ). The Veteran provided a detailed description of a traumatic in-service incident. He reported that he had no relationships, with the exception of his daughter. Further, he stated that following discharge from service, he withdrew from social contacts, lost interest in hobbies, and developed a general mistrust of people, which continues to persist. He also reported infrequent suicidal ideation, with the most recent incident occurring 6 months prior. The private examiner diagnosed PTSD and documented that the Veteran's PTSD related symptoms within the past month included a markedly elevated severity of physiological distress, physiological reactions, concentration disturbances, and sleep disturbances; severe levels of distress with irritable behavior, hypervigilance, exaggerated negative beliefs, distorted cognitions, negative emotional state, anhedonia, detachment from others, and an inability to experience positive emotions; and, a moderate severity of intrusive memories, distressing dreams with dissociative reactions, and avoidance of memories, thoughts, or feelings. Further, the private examiner determined that the Veteran's psychiatric symptoms included depressed mood, suspiciousness, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and suicidal ideation. The private examiner opined that the Veteran's level of impairment was occupational and social impairment with deficiencies in most areas, which is consistent with the 70 percent rating criteria. In March 2018, the Veteran underwent a VA examination regarding PTSD. He provided a description of a traumatic in-service incident. The Veteran reported his daughter as his only relationship and stated that he helps elderly individuals in his building when asked about social contacts. The VA examiner diagnosed other specified stressor related disorder and did not document that the Veteran experienced any psychiatric symptoms. The VA examiner opined that the Veteran's level of impairment was that a mental condition had been formally diagnosed but that the symptoms were not severe enough to interfere with occupational and social functioning, which is consistent with the noncompensable rating criteria. In February 2019, the Veteran underwent a second VA examination regarding PTSD. He provided a description of a traumatic in-service incident. The VA examiner diagnosed PTSD, opined that the diagnosis provided during the March 2018 VA examination was most likely an error, and opined that the Veteran's description of PTSD symptoms was mostly consistent with the symptoms reported during the private examination submitted in January 2017. The Veteran reported that he has some regular contact with his daughter, although he does not consider them close, and that he has no other relationships in his life. He also reported that he experiences suicidal ideation every month or two without any plan or intent; that others describe him as aggressive or pushy; that he distrusts others; and, that he feels worthless and hopeless all the time. The examiner documented that the Veteran experiences social isolation, flashbacks causing anger and aggressiveness, and problems with motivation. The examiner also determined that the Veteran's psychiatric symptoms include depressed mood, suspiciousness, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The VA examiner opined that the Veteran's level of impairment was occupational and social impairment with occasional decrease in work efficiency, which is consistent with the 50 percent rating criteria. The Board finds that the probative evidence of record demonstrates that the Veteran's psychiatric symptoms throughout the period on appeal warrant a 70 percent rating. First, the Board acknowledges the opinion of the March 2018 VA examiner finding that the Veteran's level of impairment was consistent with the 10 percent rating criteria; however, as the February 2019 VA examiner determined that this finding was most likely an error, the Board does not find the opinion of the March 2018 VA examiner to be of significant probative value. Second, the February 2019 VA examiner documented that the Veteran experienced suicidal ideation every month or two without any plan or intent and the private examiner also documented that that the Veteran experienced suicidal ideation occurring within the past six months. The Court of Appeals for Veterans Claims has found that the term "suicidal ideation" does not require an intention to act or a specific risk of self-harm and instead consists of thought or thoughts of suicide. Bankhead v. Shulkin, 29 Vet. App. 10, 2021 (2017). Therefore, the Board finds that the evidence of suicidal ideation is highly probative in finding that a 70 percent rating is warranted, especially as such ideation was reported as occurring as frequently as once every month or two. Third, the evidence demonstrates that some of the Veteran's psychiatric symptoms are specifically contemplated by the 70 percent rating criteria or rise to the severity, frequency, and duration required to warrant a 70 percent rating. The private examiner specifically determined that the Veteran experiences an inability to establish and maintain effective relationships, which is specifically contemplated by the 70 rating criteria. Further, the February 2019 VA examiner also documented that although the Veteran has some regular contact with his daughter, he does not have any close relationships and has no friendships, which the Board finds to be analogous to an inability to establish and maintain effective relationships as contemplated by the 70 percent rating criteria. The February 2019 VA examiner also documented that the Veteran feels worthless and hopeless all the time and the private examiner documented that the Veteran experiences severe levels of distress from a negative emotional state, anhedonia, detachment from others, and an inability to experience positive emotions. The Board finds that the severity, frequency, and duration of these symptoms is analogous to near-continuous depression, which is contemplated by the 70 percent rating criteria. Therefore, the Board finds that the probative evidence of record establishes that the Veteran's psychiatric symptoms are properly contemplated by the 70 percent rating criteria throughout the period on appeal. Lastly, since at the June 2021 Board hearing, testimony was taken that the Veteran was seeking a 70 percent rating, the Board need not consider a higher percentage. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the Board finds that the requirements for establishing a 70 percent rating, but no higher, for PTSD throughout the entire period on appeal have been met. Therefore, the appeal is granted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.