Citation Nr: 21007449 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-25 676 DATE: February 9, 2021 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) prior to January 31, 2019, is granted. FINDING OF FACT Prior to January 31, 2019, and giving the Veteran the benefit of the doubt, the Veteran’s PTSD manifested as occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD prior to January 31, 2019, have been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1990 to January 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2010 and July 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2014. A transcript of the hearing is of record. The Board subsequently remanded this matter in June 2016. In a June 2019 decision, the Board granted a 50 percent rating for PTSD prior to January 31, 2019, and a 70 percent rating for PTSD from January 31, 2019, and remanded the issues of service connection for a left shoulder condition, right shoulder condition, left ankle condition, left foot condition, heart condition, and an effective date prior to January 31, 2019, for TDIU. The Veteran only appealed the Board’s June 2019 decision granting a 50 percent rating for PTSD prior to January 31, 2019, to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court set aside part of the June 2019 decision, and remanded the matter to the Board for further development. The Board notes that during the course of the appeal, the issues of service connection for a left shoulder condition, right shoulder condition, left ankle condition, left foot condition, heart condition, and an effective date prior to January 31, 2019, for TDIU, were granted. Specifically, in an August 2020 rating decision, the RO granted service connection for left shoulder arthroscopic rotator cuff repair capsuloplasty, subacromial decompression with residual painful limitation of motion, right shoulder arthroscopic rotator cuff repair, subacromial decompression, distal clavicle excision with residual painful limitation of motion, left ankle lateral collateral ligament sprain, extensor tendinitis of left great toe with painful limitation of motion, residual of injury and pes planus, and bicuspid aortic valve with aortic stenosis and aortic insufficiency with congestive heart failure. The RO also granted an earlier effective date from September 8, 2009, for TDIU. Therefore, the Board finds that these issues have been granted in full and are no longer on appeal before the Board. Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) prior to January 31, 2019 Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2019). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran claims entitlement to an increased disability rating for his service-connected PTSD, which he asserts is more severe than the 50 percent rating assigned for the period prior to January 31, 2019. A 50 percent rating contemplates where there is 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 such as, 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 for PTSD contemplates 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 work like setting); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability rating is warranted for PTSD resulting in 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. Id. The evidence considered in determining the level of impairment under the Rating Schedule for PTSD is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In an August 2009 VA treatment record, the Veteran reported anxiety attacks, flashbacks of in-service traumas and threats, and hearing voices saying racial slurs often. He avoided interacting with people, insomnia, and being guarded/hypervigilant. However, the VA physician noted that in PTSD screening, he screened positive for no nightmares or avoidance. The Veteran denied delusions but felt paranoia about how people thought about him. He reported a depressed mood, but no suicidal or homicidal ideation. Upon examination, the Veteran was dressed casually, well kempt, calm and polite. He was eager to tell stories and relaxed in the beginning of the interview, then became emotional talking about his experience. Psychomotor activity was not limited and there was no abnormal movement. Speech was normal, and mood was “always anxious.” Affect was reactive with no obvious anxiety or dysphoria. Thought process was circumstantial. The Veteran was alert and insight and judgment were limited. In another August 2009 VA treatment record, the Veteran reported poor sleep, mood swings, anger outburst, and irritability, though the Veteran stated that he was able to keep it under control. The Veteran was observed to be overly talkative with pressured speech. His affect was labile with some inappropriate laughter and smiles to the context of his conversation. His though process was circumstantial and at times tangential. There was hyper-religiosity, where the Veteran said that he heard God and Jesus talk to him in times of crisis. He denied any suicide attempts or a history of violence. Upon examination, the Veteran’s appearance was tall and well nourished. There was no motor agitation and insight and judgment were limited. Thought content was negative for suicidal ideation, homicidal ideation, auditory and visual hallucinations and delusions. In a December 2009 VA treatment record, the Veteran stated that medication had helped with anger. He reported improvement in anger outburst, irritability, and paranoia. However, he stated that he was feeling depressed due to personal stressors. The Veteran stated that his sleep was improved. His appetite and energy levels were fair. His irritability had improved and his anhedonia and amotivation was situation related. Regarding helplessness, the Veteran said that the system kept failing him. He denied hopelessness but reported worthlessness. His mood was depressed, but the Veteran denied suicidal and homicidal ideation. His anxiety was better. He denied hallucinations and stated that his paranoia was better. Upon examination, the Veteran was casually dressed and groomed. He was polite, calm and engageable. His speech was regular rate and rhythm with a sarcastic theme. His affect was constricted with inappropriate smiles. His psychomotor was calm with no abnormal movements or agitation. The Veteran’s thought process was focused on system with some religious themes, and his thought content was negative for suicidal or homicidal intents or plans and auditory and visual hallucinations/delusions. His behavior was not influenced by internal stimulation. Insight and judgment were adequate for living conditions. In a June 2010 VA examination, it was noted that the Veteran was a single parent. The Veteran reported occasional social relationships. Activities and leisure pursuits included watching sports on television. Upon examination, the Veteran was clean and neatly groomed. Psychomotor activity was unremarkable; speech was clear; attitude toward examiner was cooperative, friendly, and relaxed; affect was normal; mood was good; attention and orientation were intact; thought process and thought content were unremarkable; no delusions; judgment was that he understood outcome of behavior; intelligence was average; insight was noted that the Veteran understood that he had a problem. It was noted that the Veteran had sleep impairment. There were no hallucinations. The Veteran did not have any obsessive/ritualistic behavior. There were no panic attacks, homicidal or suicidal thoughts. Impulse control was good. It was indicated that the Veteran was not able to maintain minimum personal hygiene, but no details or examples were provided, and the examiner stated that the Veteran was clean and neatly groomed. Remote and immediate memory was normal, but recent memory was mildly impaired. The examiner that the Veteran had moderate social and occupational impairment due to his PTSD. The examiner also determined that the Veteran had reduced reliability and productivity due to PTSD symptoms. In the December 2010 notice of disagreement, the Veteran said that he was prone to almost daily anxiety attacks and was hospitalized for an anxiety attack in 2004. He said that if he felt threatened or demeaned, characteristics exhibited themselves that had gotten him into issues. He said he did not respond well to most authority figures once they handled him harshly. He reported he was restless and awakened from nightmares regularly. He said that he was not able to make or maintain meaningful relationships, and that he drove his ex-wife to attempt suicide. He ostracized himself from everyone due to feelings of inadequacy and shame. In an October 2012 VA treatment record, the Veteran denied homicidal or suicidal ideation. Upon examination, the Veteran’s appearance was clean and he was cooperative. His attention was alert and his cognition was oriented. His motor activity was within normal limits. Speech was normal and mood was dysphoric and depressed. His anxiety was mild and his affect was congruent with mood and noted as sad, depressed, tearful at times, and angry. Thought process was logical and goal-directed, and there was no evidence of psychotic thinking. There were no hallucinations and abstract thinking was normal. Intelligence was average and there was no perceived memory deficit. Judgment was fair and insight was limited. In a January 2013 VA treatment record, the Veteran denied suicidal or homicidal ideation. Upon examination, the Veteran’s appearance was clean and he was cooperative and hostile. His attention was alert and his cognition was oriented. His motor activity was within normal limits. Speech was normal and mood was dysphoric and depressed. His anxiety was mild and his affect was congruent with mood and noted as sad, depressed, and tearful at times. Thought process was logical and goal-directed, and there was no evidence of psychotic thinking. There were no hallucinations and abstract thinking was normal. Intelligence was average and there was no perceived memory deficit. Judgment was fair and insight was limited. In an October 2013 VA treatment record, the Veteran denied suicidal or homicidal ideation. Upon examination, the Veteran’s appearance was clean and he was cooperative. He was also alert and oriented. His motor activity was within normal limits. Speech was normal; mood was dysphoric and depressed. His anxiety was mild and affect was congruent with mood. The Veteran’s thought process was logical and goal directed, and there was no evidence of psychotic thinking. There were no hallucinations. Abstract thinking was normal; memory was without any perceived deficit; judgment was fair. In a June 2014 VA treatment record, the Veteran denied suicidal or homicidal ideation. Upon examination, the Veteran’s appearance was clean and he was cooperative. He was also alert and oriented. His motor activity was within normal limits. Speech was normal; mood was dysphoric and depressed. His anxiety was mild and affect was congruent with mood. The Veteran’s thought process was logical and goal directed, and there was no evidence of psychotic thinking. There were no hallucinations. Abstract thinking was normal; memory was without any perceived deficit; judgment was fair. In an October 2014 VA treatment record, the Veteran denied suicidal or homicidal ideation. Upon examination, the Veteran’s appearance was clean and he was cooperative. He was also alert and oriented. His motor activity was within normal limits. Speech was normal; mood was dysphoric and depressed. His anxiety was mild and affect was congruent with mood. The Veteran’s thought process was logical and goal directed, and there was no evidence of psychotic thinking. There were no hallucinations. Abstract thinking was normal; memory was without any perceived deficit; judgment was fair. At the October 2014 Board hearing, the Veteran testified that his PTSD symptoms had caused his marriage to fail and that he only had a “semblance of a family unit” now. He said he was unable to trust others. He said that he saw skinheads everywhere he went and fought skinheads in his sleep. In a July 2015 VA treatment record, the Veteran’s appearance was well-groomed and his demeanor was cooperative. Psychomotor activity was unremarkable and speech was fluent and unpressured. There were no behavior issues and his mood was frustrated. Affect was mood congruent. There were no disturbances in thought content and there thought process was logical and goal oriented. The Veteran was alert and oriented. Insight and judgment were fair. In a November 2015 VA treatment record, the Veteran’s appearance was casual and demeanor was cooperative. Psychomotor activity was unremarkable and speech was fluent and unpressured. There were no behavior issues and his mood was frustrated/depressed. Affect was mood congruent. There were no disturbances in thought content and there thought process was logical and goal oriented. The Veteran was alert and oriented. Insight and judgment were fair. In a January 2016 VA treatment record, the Veteran’s appearance was casual and demeanor was intense. Psychomotor activity was unremarkable and speech was pressured at times. His behavior was aggressive and his mood was angry/irritable. Affect was mood congruent. There were no disturbances in thought content and there was no suicidal or homicidal ideation. The Veteran was alert and oriented. Insight and judgment were poor. In a March 2016 VA treatment record, the Veteran was appropriately dressed and groomed. He was mildly irritable, but cooperative and pleasant with the VA physician; the Veteran was engaging. Speech was coherent and mood was “not good.” Affect was congruent to mood; thought process was goal directed and linear. The Veteran denied suicidal or homicidal ideation, as well as auditory or visual hallucinations. He also denied delusions. He was alert and oriented and memory was intact. Insight and judgment were adequate. In a May 2016 disability benefits questionnaire (DBQ), it was determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; and persistent delusions or hallucinations. In a September 2016 VA treatment record, the Veteran continued to report intense anxiety and showed the VA physician his hands which were moist. He took frequent breaths and paused intermittently during the interview to calm himself. The Veteran was engageable and polite throughout the interview, but was notably angry and hostile in his tone. He was mindful of his behavior and apologetic at times. He remained hypervigilant and continued to avoid crowds. He slept 6 to 8 hours per night. The Veteran denied hopelessness and helplessness and denied suicidal or homicidal ideation or auditory or visual hallucinations. Upon examination, the Veteran was appropriately dressed and groomed. He was calm and cooperative. Speech was coherent and mood was “angry.” Affect was congruent to mood and thought process was goal directed and linear. Memory was intact and the Veteran was alert and oriented. Insight and judgment were adequate. In a November 2017 VA treatment record, it was noted that periods of irritability and anger continued. The Veteran continued to have flashbacks, intrusive thoughts, and nightmares. He continued to avoid people and had issues with authority figures that reminded him of his Navy Chief. He also continued to be very particular about how he dressed. He reported that his PTSD impaired his ability to function, noting increased anxiety in situations where he thought it was possible to be demeaned by a superior person. He denied panic attacks and slept 3 to 6 hours per night pending nightmares, which occurred 3 to 4 times per week. He continued to report depressive symptoms, but felt medication was helping his mood overall. He denied suicidal or homicidal ideation, as well as auditory or visual hallucinations. He also denied hopelessness and helplessness. Upon examination, the Veteran was appropriately dressed and groomed. He was cooperative, but there was intermittent irritability while discussing military experiences; his hands were moist after the interview. Speech was coherent and mood was “same.” Affect was congruent to mood and thought process was goal directed and linear. Memory was intact and the Veteran was alert and oriented. Insight and judgment were adequate. In a May 2018 VA treatment record, the Veteran reported ongoing irritability and anger. He continued to endorse ongoing flashbacks, intrusive thoughts, nightmares, and avoidance related to military experiences. He said this impaired his day to day function. He said he could not be around many people and felt this limited his ability to find steady employment. He denied panic attacks and slept 4 to 6 hours per night pending nightmares, which occurred 2 to 3 times per week. He continued to report depressive symptoms, but felt medication was helping his mood overall. There was intermittent anhedonia, amotivation, but the Veteran said he had to push through it. He denied suicidal or homicidal ideation or auditory or visual hallucination. He also denied hopelessness and helplessness. Upon examination, the Veteran was appropriately dressed and groomed. He was calm and cooperative, and speech was coherent. Mood was “fine,” and affect was congruent to mood. Thought process was goal directed and linear. Memory was intact and he was alert and oriented. Insight and judgment were adequate. In a December 2018 VA treatment record, the Veteran noted that medication had been helpful for situational anxiety and controlling panic-like symptoms. He continued to report symptoms of flashbacks, intrusive thoughts, nightmares, avoidance, emotional, cognitive, and social impairments. He also continued to experience trauma responses and arousal around officers of any description. Ongoing irritability and anger continued. The Veteran continued to endorse intermittent low mood, anhedonia, amotivation, but said there was some improvement with medication and exercise. He slept 4 to 6 hours per night pending nightmares, which occurred 1 to 3 times per week. The Veteran denied suicidal or homicidal ideation and auditory or visual hallucination. He denied hopelessness and helplessness. Upon examination, the Veteran was appropriately dressed and groomed. He was calm and cooperative, and speech was coherent. Mood was “same,” and affect was congruent to mood. Thought process was goal directed and linear. Memory was intact and he was alert and oriented. Insight and judgment were adequate. Overall, and giving the Veteran the benefit of the doubt, the Board finds that prior to January 31, 2019, a 70 percent rating, but no higher is warranted for the Veteran’s PTSD. In the August 2009 VA treatment records, hearing voices including God and Jesus and racial slurs, anxiety, poor sleep, mood swings, anger outbursts, pressured speech, inappropriate laughter, tangential thought process, hyper-religiosity, and limited insight and judgment were noted. In the December 2009 VA treatment record, it was noted that affect was restricted, and the Veteran exhibited inappropriate smiles. Thought process was focused on the system and there were some religious themes. In the December 2010 notice of disagreement, the Veteran reported almost daily panic attacks and being awakened by nightmares regularly. He was unable to maintain relationships and said he drove his ex-wife to attempted suicide. He also ostracized himself from others. At the October 2014 Board hearing, the Veteran testified that his PTSD caused his marriage to fail and that he saw skinheads everywhere. The January 2016 VA treatment record noted pressured speech at times and that the Veteran was angry/irritable. The May 2016 DBQ found that the Veteran showed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. It was also noted that the Veteran had persistent delusions and hallucinations, and difficulty adapting to stressful situations. The September 2016, November 2017, May 2018, and December 2018 VA treatment records showed intense anxiety and ongoing irritability and anger. In short, the Veteran’s PTSD exhibited symptoms of audio hallucinations, frequent panic attacks and anxiety, difficulty maintaining relationships, impaired impulse control, hypervigilance, nightmares, sleep issues, and self-isolation. However, there is no indication that prior to January 31, 2019, the Veteran’s PTSD warranted a 100 percent rating. As stated above, a 100 percent rating is for total occupational and social impairment. There is no indication that the Veteran had gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that the May 2016 DBQ noted persistent delusions or hallucinations; however, it is only found in the August 2009 VA treatment records that the Veteran heard voices. There is no other indication throughout the record that the Veteran’s audio hallucinations were persistent. Based on the record, the Veteran’s thought process and speech were found to be overall normal. The Veteran denied suicidal and homicidal ideation. The Veteran was consistently found to be adequately dressed and well groomed, and he was oriented. Finally, there was no indication of gross impairment of memory. Therefore, the Board finds that prior to January 31, 2019, a 70 percent rating, but no higher, is warranted for the Veteran’s PTSD. (Continued on the next page)   Accordingly, giving the Veteran the benefit of the doubt, the overall evidence of record shows that the Veteran warrants a 70 percent disability rating, but no higher, prior to January 31, 2019, for his service-connected PTSD. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.