Citation Nr: 21008259 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 18-24 681 DATE: February 12, 2021 ORDER Entitlement to a 50 percent disability rating for posttraumatic stress disorder (PTSD), from April 16, 2015 through August 17, 2017, is granted. FINDING OF FACT Throughout the appeal period, the severity, frequency, and duration of the Veteran’s PTSD symptoms most closely approximates occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW For the period from April 16, 2015 through August 17, 2017, the criteria for a disability rating of 50 percent, but no higher, for PTSD have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1968 to April 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board recognizes that a November 2017 rating decision awarded a 100 percent disability rating for PTSD and the Veteran subsequently disagreed with the effective date assigned for the 100 percent rating. However, these actions did not end the previously perfected appeal regarding the ratings assigned for PTSD since the Veteran’s April 16, 2015 claim for an increase. See November 2015 rating decision, January 2016 notice of disagreement, April 2017 statement of the case, April 2017 VA Form 9. While a statement of the case in April 2018 lists the issue as entitlement to an earlier effective date for the award of the 100 percent rating, the real issue pertains to all of the ratings assigned for PTSD from April 2015 up to the effective date of the 100 percent rating. The PTSD ratings were addressed in the April 2017 statement of the case and the Veteran timely appealed. Given this history, the issues have been recharacterized on the title page. This approach is favorable to the Veteran as it not only allows for consideration of an earlier date for the 100 percent rating, but also allows for intermediate ratings; that is, higher ratings that are not 100 percent, and considers ratings during a larger period. On April 16, 2015, the Veteran filed a claim seeking a higher rating for service-connected PTSD. A November 2017 rating decision granted a 100 percent rating for PTSD effective August 18, 2017, the date of a VA examination. A 30 percent rating is assigned prior to that date. The question before the Board is whether, for the duration of the appeal period, the Veteran is entitled to a disability rating for PTSD higher than 30 percent. Turning to the evidence, the Veteran presented for a VA PTSD examination in June 2015. The Veteran reported having a good relationship with his wife for the most part and a good relationship with his stepsons. He last worked in 2006 and receives Social Security benefits, reported during the Board hearing as based on age. He denied any psychiatric hospitalizations or suicide attempts. He described himself as irritable and quick to react in anger. Upon examination, the examiner noted that the Veteran’s psychiatric disability was manifested by depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; and difficulty in establishing and maintaining effective work and social relationships. The examiner observed the Veteran as clearly and casually dressed, well-groomed in appearance, alert, pleasant, cooperative, and his affect was irritable. The Veteran reported his mood as okay. The examiner noted that his speech was unremarkable, speed of thinking and responding was within normal limits, thought process were logical and goal directed, insight was limited to fair, judgment was adequate, and there was no overt evidence of mental content symptomatology, perceptual disturbance, or gross cognitive confusion. He was oriented to person, place, and time. His attention and memory were not good as he was forgetting some things. He has anxiety when driving. He reported having a down, depressed mood that fluctuates. He denied suicidal and homicidal ideation. He reported being very irritable at times and having a history of verbal altercations with others when he was working. His appetite was good, but he endorsed sleeping issues with nightmares about service. He reported having anxiety but denied panic attacks. He denied having hallucinations, delusions, or paranoid ideation. The examiner opined that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In a July 20, 2015 VA treatment, the Veteran complained of nightmares, depression, anger, and being quick tempered. On evaluation, the treating physician noted that the Veteran was alert and oriented to person, place and time; had adequate grooming; no abnormal motor movements; appropriate eye contact; normal spontaneous speech/mood reported as semi-depressed; and had full range affect. The Veteran denied suicidal and homicidal ideation, and auditory and visual hallucinations. His thought process was goal directed, insight and judgment were fair, and there were no gross cognitive deficits. He denied feeling hopeless and reported having a good appetite. In a July 24, 2015 VA treatment, the Veteran reported experiencing mood disturbance, sleep disturbance, nightmares, irritability, anger outbursts, and mild social isolation. He reported having a tendency toward rigidity in thought patterns and disliked going to bed. On observation, the treating physician noted that the Veteran was alert, oriented, had normal hygiene and grooming, and maintained appropriate eye contact. The Veteran did not appear to be experiencing significant psychological distress. His mood was euthymic with congruent affect, and his thought process was organized, clear, and free from circumstantiality, tangentiality, and loose association. His rate, tone, rhythm, and volume of speech were within normal limits. There was no evidence of delusional ideation, and he denied current suicidal, homicidal and violent ideations. The Veteran was a good historian and there was no psychomotor agitation observed. The Veteran was treated in August 2015 where he reported continuing to experience mood disturbance, sleep disturbance, nightmares, irritability, anger outbursts, and mild social isolation. He reported having a tendency toward rigidity in thought patters, and worsening symptoms over the past several years. He reported anger management difficulties, history of physical aggressive behavior, and described having verbally aggressive behavior with no verbal abuse. On evaluation, the treating physician noted that the Veteran was alert, oriented, had normal hygiene and grooming, maintained appropriate eye contact, and did not appear to experience significant psychological distress. His mood was euthymic with congruent affect, thought process was organized, speech was normal, and there was no evidence of delusional ideation. He was a good historian, and there was no psychomotor agitation observed. He denied any current suicidal, homicidal, and violent ideations. See also October 2015, April 2016, June 2016, July 2016, May 2017, June 2017, and July 2017 VA Treatment Records. In a February 2016 VA treatment, the Veteran report having a onetime, fleeting suicidal ideation involving driving his car onto oncoming traffic. The Veteran presented for another VA PTSD examination in August 2017. The Veteran reported having a good and supportive marital relationship with his wife, and having a good relationship with his stepsons. He reported being involved in religious activities. At this examination, he reported last working in 2004 as a tennis instructor. Upon examination, the examiner noted that the Veteran’s symptoms manifest in 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; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; circumstantial, circumlocutory or stereotyped speech; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or work like setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; persistent delusions or hallucinations; and neglect of personal appearance and hygiene. Overall, the examiner opined that the Veteran’s symptoms were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Board finds evidence warranting a 50 percent rating for the Veteran’s PTSD prior to August 18, 2017. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Here, the Board notes that one of the Veteran’s symptoms during the June 2015 VA examination included having difficulty establishing and maintaining effective work and social relationships. In the subsequent VA treatments, the Veteran continuously complained of mood disturbances. Such symptoms reported by the Veteran warrant a 50 percent rating. It is not factually ascertainable that the increase in disability occurred in the year prior to the April 16, 2015 claim. See 38 C.F.R. § 3.400(o)(2). As such, the effective date of the 50 percent rating is April 16, 2015. A rating in excess of 50 percent is not warranted for PTSD during the appeal period. A 70 percent rating requires 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 100 percent rating requires total occupational and social impairment. Id. A higher rating is not warranted as total occupational and social impairment is not shown, nor is occupational and social impairment with deficiencies in most areas. Prior to August 2017, after review of the evidence and interview with the Veteran, a VA examiner in 2015 determined that the level of impairment was less than occupational and social impairment with deficiencies in most areas. The Board recognizes that the Veteran believes the 2015 examination was not fair. The Board finds the examination adequate. The examiner reviewed the file, performed an examination, and provided relevant information in the examination report. The Veteran’s reports during the examination are consistent and similar to his reports of symptoms during his subsequent VA treatment. To the extent the Veteran argues that the examiner did not adequately address his anger issues and past physical altercations, the Board notes that when asked by the Board at his hearing he indicated he had not been in a physical altercation in many years and the last time was because someone pulled a switchblade on him. An altercation after someone threatens significant injury, such as by brandishing a knife, is not the same as impaired impulse control. Indeed, the rating criteria provide an example of impaired impulse control, which is “unprovoked irritability with periods of violence.” In the most recent altercation noted by the Veteran, which occurred years ago, the Veteran was provoked. Indeed, the Veteran testified that he does not go around looking for fights. While the Veteran testified about anger issues, anger issues are adequately contemplated in the 50 percent rating which specifically includes disturbances of mood. The VA examiner noted the Veteran’s reports regarding anger. The Veteran’s verbal altercations, anger, and problems getting along with people are contemplated in the currently assigned 50 percent rating, which includes consideration of impaired judgment, disturbances of mood, and difficulty in establishing and maintaining effective relationships. The Board recognizes that the Veteran expressed suicidal ideation in a February 2016 VA treatment, which is a symptom listed in the 70 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s symptoms overall, to include the single instance of suicidal ideation, has not risen to the level contemplated by the 70 percent disability rating. As noted during the treatment, this was a one-time fleeting report. The suicidal ideation does not cause deficiencies in most areas. Notably, the Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the June 2015 VA examination. Treatment records do not show other symptoms demonstrative of a higher rating. The Board is sympathetic to the Veteran’s lay statements and that of his wife that his disability has been worse for the entire appeal period based on his symptoms. See August 2015 Correspondence/Lay Statements, May 2018 Substantive Brief. The Veteran and his wife are competent to report observable symptoms that come to them through their senses. Layno v. Brown, 6 Vet. App. 465 (1994). They are not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his PTSD is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. In summary, a 50 percent but no higher rating is warranted for the period from April 16, 2015 though August 17, 2017. Occupational and social impairment with deficiencies in most areas is not shown during this period. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.