Citation Nr: 21008031 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-03 393A DATE: February 11, 2021 ORDER An initial 70 percent disability rating is granted for posttraumatic stress disorder (PTSD) for the entire period on appeal prior to December 16, 2011. FINDING OF FACT Throughout the entire period on appeal prior to December 16, 2011, it is at least as likely as not that the Veteran’s PTSD was manifested by symptoms of such severity, frequency, and duration so as to more nearly approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial 70 percent rating for PTSD have been met for the entire period on appeal prior to December 16, 2011. 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 FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1965 to August 1991, to include service in the Republic of Vietnam from February 1970 to February 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO, in pertinent part, granted service connection and a 30 percent rating for PTSD, effective June 18, 2009. Following the Veteran’s disagreement with the initial rating for PTSD, the appeal came before the Board in May 2016, when it was remanded for additional development. In April 2017, while the case was in remand status, the agency of original jurisdiction (AOJ) increased the Veteran’s rating for PTSD to 70 percent, effective February 27, 2017. The 30 percent rating in effect prior to February 27, 2017 was otherwise confirmed and continued and the case was returned to the Board. In October 2017, the Board issued a decision that, in pertinent part, awarded an initial disability rating of 50 percent for PTSD prior to December 16, 2011, and assigned a 70 percent rating thereafter. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2019 memorandum decision, the Court vacated the Board’s decision insofar as it had denied an initial rating in excess of 50 percent for PTSD prior to December 16, 2011. In October 2019, the Board, in pertinent part, readjudicated the issue and again denied an initial rating in excess of 50 percent for PTSD. The Veteran again appealed the Board’s denial to the Court. In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision and remanding the matter for readjudication. To the extent that the Board’s October 2019 decision also remanded the matter of entitlement to service connection for vertigo, the Board notes that the Veteran timely submitted a March 2020 VA Form 20-0996 (Decision Review Request: Higher-Level Review) under the Appeals Modernization Act (AMA) following the issuance of a February 2020 supplemental statement of the case. In accordance with his expressed desire for a higher-level review under the AMA, the matter was withdrawn from appeal under the legacy appeal system and was instead addressed by the AOJ in a July 2020 rating decision. Entitlement to an initial 70 percent disability rating is granted for PTSD for the entire period on appeal prior to December 16, 2011. The Veteran seeks a 70 percent rating for his PTSD prior to December 16, 2011. See November 2020 representative statement (“[T]he Board should find that the Veteran is entitled to a 70 percent rating for his PTSD effective June 18, 2009.”). Specifically, it is argued that “the evidence shows that the Veteran did experience deficiencies at work and with his family, as well as in the areas of mood, judgement, and thinking.” Id. In support of this, the Veteran’s representative points out that the Veteran demonstrated “suicidal ideation, the inability to maintain effective relationships, obsessive rituals which interfere with routine activities, and near continuous panic or depression.” The Veteran’s representative argues that “[h]ad the Board adequately considered all of the material evidence [], it would have found that his symptoms caused occupational and social impairment with deficiencies in most areas.” Under the applicable rating criteria for PTSD, 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, 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 earned material, forgetting to complete tasks); impaired judgement; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. 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 that 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); 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 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. In Vazquez-Claudio, the Federal Circuit held that a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (“Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the frequency, severity, and duration of a Veteran’s symptoms must play an important role in determining his disability level.”). After carefully reviewing the evidence, the Board concludes that the Veteran’s service-connected PTSD symptomatology met the criteria for a 70 percent rating for the entire period on appeal prior to December 16, 2011. In accordance with Mauerhan and Vazquez-Claudio, the Board recognizes that the Veteran demonstrated a wide range of psychiatric symptoms throughout the appeal period. As pointed out in the JMPR, for example, in the June 2010 VA medical examination report, it was noted that the Veteran “frequently avoids medical care out of fear that it will trigger recollections of his experiences in Vietnam,” he “has difficulty doing normal social activities with his family, and has difficulty getting along with others at work and at home,” he avoids “the development of intimacy with anyone other than the immediate family,” “he has not seen his sister in 8 years, his ‘relationship with his spouse is mixed with some difficulties due to his [PTSD],’” and “he felt ‘constantly nervous and tense, with poor ability to relax, and little enjoyment from any activities in his life for many years,’” among other symptoms. The JMPR also pointed out that “while noting that Appellant described an ‘okay’ relationship with his coworkers[, he] tended to isolate himself during this period due to the possibility of outbursts, according to his June 2010 examiner.” In assessing the severity, frequency, and duration of his PTSD symptoms as required by law and the terms of the JMPR, the Board finds it significant that the June 2010 VA examiner expressly opined that, “The severity of the symptoms is severe. The above symptoms are constant, continuous or ongoing.” See June 2010 VA examination report (discussing current symptoms of irritability, moodiness, difficulty getting along with others, little social interaction, difficulty sleeping, avoidance of crowds, and difficulty with physical intimacy) (emphasis added). It was also noted that the “claimant indicates the symptoms affect his total daily functioning which result in that he has much less social interaction, is avoidant of most people in his life, has difficulty doing normal social activities with his family, and has difficulty getting along with others at work and at home.” Thus, the symptoms reported at the June 2010 VA examination, even if not falling squarely in line with the examples set forth by the diagnostic criteria for a 70 percent rating, were acknowledged as “severe” and “constant, continuous or ongoing” during the appeal period prior to December 16, 2011. There is also evidence within the December 2011 VA examination report itself that suggests the Veteran’s PTSD symptoms met the criteria for the 70 percent rating prior to the actual day he was examined in December 2011. In looking at the Board’s prior October 2017 decision awarding a 70 percent rating effective December 16, 2011, the Board previously acknowledged: At that [December 2011] examination, several symptoms recognized as warranting a 70 percent rating were present, to include suicidal ideation, obsessive rituals interfering with routine activities and inability to establish and maintain effective relationships. Although the Veteran was working, he was very isolated at work so as to avoid interaction with people. He also indicated losing his temper three times weekly, which could be interpreted to be impaired impulse control. In addition, he indicated having attempted suicide, indicating that his PTSD symptomatology was more severe than mild.” See October 2017 Board decision. Significantly, the December 2011 VA examiner expressly stated that the Veteran’s PTSD symptoms caused “clinically significant distress or impairment in social, occupation, or other important areas of functioning” and had existed for a time period that was “more than 1 month.” Thus, the symptoms cited by the Board to justify a 70 percent rating on December 16, 2011, were noted to have been ongoing for some time before the date of the examination. Additionally, the JMPR pointed out that “[d]uring his February 2017 VA medical examination, [] Appellant reported that “[i]n 2011 I took a bottle of sleeping pills and my wife called an ambulance. I woke up in BAMC.” Cf. March 2013 statement (“[W]ithin the past year, I attempted suicide. My wife came home and found me unresponsive, due to taking a large amount of Ambien. She had to call 911 and I was taken to Brook Army Medical Center.”). Although the exact date of the suicide attempt is unclear, suicidal ideation was noted during the December 2011 VA examination and therefore is likely to have been present during the appellate period in question prior to December 16, 2011. Given all of the above, the Board resolves doubt in the Veteran’s favor and finds that his PTSD symptoms prior to December 16, 2011, were of such severity, frequency, and duration so as to more nearly approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood throughout the appeal period in question. Accordingly, a 70 percent rating is granted for the period on appeal prior to December 16, 2011. This constitutes a full grant of the benefit sought on appeal. See November 2020 representative statement (“[T]he Board should find that the Veteran is entitled to a 70 percent rating for his PTSD effective June 18, 2009.”). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Gielow 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.