Citation Nr: 21006872 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 12-14 172 DATE: February 5, 2021 ORDER Entitlement to the maximum evaluation of 100 percent for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran’s favor, his PTSD symptoms has been resulting in a total occupational and social impairment for the entire appeal period. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for the maximum evaluation of 100 percent for PTSD, for the entire period on appeal, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to June 1969 with service in the Republic of Vietnam. His awards and decorations include the Purple Heart Medal and Combat Action Ribbon. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The RO increased the initial evaluation for PTSD to 70 percent for the entire period on appeal. See April 2018 Rating Decision. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). In March 2018, the Board denied the Veteran’s entitlement to an evaluation in excess of 70 percent for PTSD. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Court found that the Board failed to address the evidence regarding the Veteran’s history of domestic violence and disregard of personal hygiene when evaluating the severity of his PTSD. Thus, in an October 2018 order, the Court granted a Joint Motion for Partial Remand and vacated the Board's March 2018 decision and remanded the matter for readjudication. Since then, the Board remanded the matter in May 2019 for more development. Now the matter is returned to the Board. The Veteran’s service-connected PTSD is currently rated at 70 percent disabling and he is seeking the maximum disability rating of 100 percent. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be 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. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). Otherwise, it will assign the lower rating. Id. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 and a maximum 100 percent evaluation is warranted for a 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; memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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 (2002). 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. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The Board notes that the evidence of record shows the Veteran’s significant history of violence against his wife. Both the Veteran and his wife provided multiple statements to stated that the Veteran used to beat his wife for no reason for years. See e.g., March 2010 Veteran’s Statement; April 2010 Spouse Statement (the Veteran became very controlling shortly after they started to live together in 1977, and was beating her and banging her head on the floor which went on for several years); September 2010 Notice of Disagreement (NOD) (the Veteran was very violent towards his first wife as well and have not spoken to two children from that marriage in 30 years). The Veteran and his wife provided that they were divorced for a brief period due to the violence, but reconciled after the Veteran’s seeking mental help; however, the violence still continued after the reconciliation until the Veteran became unable to be physically violent due to his other disabilities. In a July 2010 psychiatry assessment report, the examiner noted that the Veteran was Baker-Acted in 1980s for beating his wife all the time, and it was initiated because his wife did not want him to go to jail. The record shows that the Veteran has been severely anti-social and unable to form or maintain relationships due to PTSD. See e.g., April 2010 Spouse Statement (the Veteran’s wife has never known of him having even one friend; he refers of one of his old bosses as an old friend, but has never socialized with him outside of work; they barely spend a few minutes a day in the same area of the house as he always spends time alone deep in thought); August 2010 C & P Report for Initial Evaluation for PTSD (the Veteran reported no friends); April 2012 VA Form 9 (the Veteran leaves home about once a month at best; he sometimes does not have any conversation with others, including his wife and daughter, for weeks at a time). The Veteran’s nightmares multiple times a week, which ware related to his combat experience, were noted in multiple records. See e.g., July 2010 Psychiatry Initial Assessment; August 2010 C & P Report for Initial Evaluation for PTSD. The Veteran and his wife stated that the Veteran’s wife sleeps in another room or at the foot of the bed, because she does not want to get hurt while he is having nightmares and flailing his arms. See September 2010 NOD; January 2019 Spouse Statement. The Veteran’s wife provided that the Veteran’s paranoia has been worsening over the years. See January 2019 Spouse Statement. She stated that she is unable to have the windows open on a nice day, because the Veteran insists that it is unsafe, and people are watching them. She provided that all of their windows and exterior doors have burglar bars installed. See also November 2019 Spouse Letter (the Veteran’s wife wrote a letter to cancel VA examination appointments due to his worsened paranoia by citing his statements of the government is out to get him and to commit him to an institution for the rest of his life). The Board notes that the Veteran reported that he does not maintain personal hygiene, e.g., brushing teeth, bathing, or changing clothes, for weeks at a time. See April 2012 VA Form 9. Also, the Veteran has endorsed symptoms of anxiety and panic attacks triggered by memories of the war, short-term memory loss, and abrupt mood swings happening daily. See June 2013 Psychology Note; September 2010 NOD. The record does not show that the Veteran has been suicidal or homicidal, or has had hallucinations. As to suicidal ideation, the Veteran stated that he is not currently suicidal, but asks God every day that the day of his death would come. See April 2012 VA Form 9. The Board acknowledges that a June 2019 primary care note indicates that the Veteran’s anxiety disorder with panic episodes and history of PTSD is stable, and the Veteran is off pharmaceutical therapy and doing well. On November 2020 VA examination, which was obtained after the Board’s May 2019 remand order, the examiner provided that the Veteran’s PTSD symptoms result in occupational and social impairment with deficiencies in most areas, such as work school, family relations, judgment, thinking and/or mood. However, the Board notes that the examiner indicated that the Veteran’s records reflect no legal issues or violent behavior problems and did not address the multiple reports of his history of violence as discussed above. As such, the Board cannot assign high probative weight to the November 2020 examiner’s assessment of the severity of the Veteran’s PTSD. Based on above, the Board resolves reasonable doubt in the Veteran’s favor and finds that his PTSD symptoms has been resulting in a total occupational and social impairment for the entire appeal period. Consequently, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s entitlement to the maximum evaluation of 100 percent for PTSD is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.