Citation Nr: 21005690 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-10 089 DATE: February 2, 2021 ORDER Entitlement to an initial disability rating of 70 percent for posttraumatic stress disorder (PTSD) prior to December 30, 2019 is granted, a rating in excess of 70 percent from December 30, 2019 to December 2, 2020 is denied, and a 100 percent schedular rating thereafter is granted. FINDINGS OF FACT 1. Prior to December 2, 2020, the severity, frequency, and duration of the Veteran’s symptoms more closely approximate occupational and social impairment with deficiencies in most areas. 2. After December 2, 2020, the severity, frequency, and duration of the Veteran’s PTSD symptoms more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent for PTSD prior to December 30, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent for PTSD from December 30, 2019 to December 2, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a disability rating of 100 percent for PTSD from December 2, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to July 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for PTSD and assigned a 30 percent evaluation effective from April 2013. The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge on February 2019. A transcript of the hearing is in the Veteran’s file. This matter was previously before the Board in May 2019, at which time it was remanded for a new VA examination. Subsequently, in a June 2020 rating decision, the RO increased the rating for the Veteran’s PTSD to 70 percent, effective December 30, 2019, the date of the examination. This was a partial grant of the benefit sought, as the Board notes that the Veteran indicated he was seeking a 100 percent rating for this disability. (See February 2014 Notice of Disagreement). As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial rating of 70 percent for PTSD prior to December 30, 2019 is granted The Veteran’s PTSD was initially rated 30 percent disabling under DC 9411. The RO increased the rating to 70 percent effective December 30, 2019. See 38 C.F.R. § 4.130, DC 9411. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula For Mental Disorders, a 30 percent rating is warranted when there is 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 behavior, 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, Diagnostic Code 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. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 inability to establish and maintain effective relationships. Id. The 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 (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 symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. A veteran may only qualify for a given initial or increased rating based on mental disorder by demonstrating the particular symptoms associated with that percentage in the rating criteria, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although a veteran’s symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for that rating. Id.; 38 C.F.R. § 4.130. The Board finds the evidence prior to December 2019, consisting of the Veteran’s testimony, treatment records, and the 2013 VA examination report, supports the assignment of a 70 percent disability evaluation. Notably, the VA examiner found the PTSD symptoms described caused clinically significant distress or impairment in social, occupational or other important areas of functioning. Treatment records reflect the Veteran experienced anxiety, worry, poor concentration, diminished energy, hopelessness, irritability, racing thoughts, sleep disturbances and social withdrawal. In addition, they document suicidal ideation, which the Veteran testified had been present throughout the appeal period. (He testified he felt unable to discuss it with the VA examiner, because of the abruptness of the question about it.) Although he did not exhibit all of the symptomatology consistent with a 70 percent disability rating, overall, his disability picture most closely approximates the criteria for a 70 percent disability rating prior to December 30, 2019. 2. Entitlement to a rating in excess of 70 percent for PTSD from December 30, 2019 to December 2, 2020 is denied The evidence during the interval between December 2019 and December 2020, (the December 2019 examination report and treatment records) shows the Veteran’s PTSD symptoms included intrusive memories, distressing dreams, cued psychological reactions and distress, avoiding thoughts and memories, avoiding external reminders (crowds, fireworks), inability to recall important details of an event, exaggerated negative beliefs, distorted cognition leading to blame, diminished interest or participation in activities, detachment, persistent inability to experience and express positive emotions, irritability, hypervigilance, exaggerated startled response, problems with concentration, and insomnia. (See December 2019 examination report.) The examiner considered this productive of difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. Nevertheless, the Veteran presented himself clearly, and his affect was normal. In addition, it was noted he had been married for 47 years and has always had a close-knit family. It also was observed he had two friends and talks to them once a month. VA treatment records show the Veteran was feeling down, has a lack of energy, problems with concentration and focus and requires medication to help with mood and sleep. As the evidence during the 2019/2020 interval does not reflect the presence of 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 personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name, a schedular 100 percent disability evaluation is not warranted. 3. Entitlement to a disability rating of 100 percent from December 2, 2020 for PTSD is granted. The Veteran was afforded another VA examination in December 2020. The Veteran reported impaired memory for names of relatives and people he has known for several years. He reported that he typically has suicidal thoughts daily but denied intent. The Veteran reported that he recently lost close friends, one of whom he served with in the military. The Veteran is unemployed. The Veteran reported he sees a psychiatrist once a month and told him he constantly thinks about suicide and that is why he does not keep weapons in his house. The Veteran stated that he gets aggressive and thinks about hurting people but has not. He slams doors and used to punch walls. He tries to stay home so nothing happens; he goes out once a month. The Veteran reported he was an alcoholic when he first was out of the military and has tried to cut down but noted it is easier to sleep if he drinks a case of beer, which he does once in a while. The examiner noted that the Veteran’s alcohol disorder is no longer in remission as he now drinks regularly. He continued to sleep apart from his wife because he is violent in his sleep and she has been hurt a few times. His wife also reported he does not shower enough, and he is slacking on his personal hygiene. The Veteran reported sleep is a big problem for him and he is taking medication for his lethargy. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, near continuous panic, chronic sleep impairment, mild memory loss, impairment of short and long term memory, memory loss for names of close relatives, flattened affect, disturbances of motivation and mood, difficulty establishing work and social relationships and stressful situations, suicidal ideation, and impaired impulse control. The examiner found the Veteran to have total occupational and social impairment. After December 2, 2020, the evidence of record supports a rating of 100 percent, as it reflects that the Veteran has manifested symptoms such as impaired memory, suicidal ideation, near continuous depression and total impairment in social and occupational functioning. Because of his evidence of increased symptomatology, the Board concludes that the criteria for a 100 percent rating were met effective December 2, 2020, the day of the VA evaluation. Because the Veteran has had a total 100 percent schedular rating from April 2013 until December 2016, and a total rating based on individual unemployability (TDIU) effective from December 2016, separate consideration of any entitlement to TDIU benefits is not raised by this appeal. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.