Citation Nr: 21008586 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-21 716 DATE: February 17, 2021 ORDER Entitlement to an initial increased rating, in excess of 70 percent is denied. FINDING OF FACT The Veteran’s PTSD is not approximated by a total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 100 percent disability rating for post-traumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1999 to December 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2008 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the October 2008 rating decision, the RO granted the Veteran’s service connection claim for PTSD, at a 50 percent disability rating, effective July 7, 2008. In November 2008, the Veteran filed a notice of disagreement (NOD), asserting entitlement to an earlier effective date for the grant of service connection for PTSD. In a January 2009 rating decision, the RO denied the claim for an earlier effective date for service connection PTSD. In April 2009, the Veteran filed a NOD to the denial of the claim for an earlier effective date for service connection for PTSD. Thereafter, in September 2011, the Veteran filed a new, additional claim for an increased rating, in excess of 50 percent, for the service-connected PTSD. In a November 2012 rating decision, the RO denied the claim for an increased rating, in excess of 50 percent for the service-connected PTSD. For this claim, the Veteran filed a NOD in January 2013. In July 2018, the Board granted the claim of an earlier effective date, on January 10, 2005, for PTSD, as well as a 70 percent increased rating disability for PTSD, for the period beginning July 7, 2008. Additionally, it determined that a remand was required for the RO to assign a disability rating for the period of January 10, 2005 to July 6, 2008; and deferred further consideration of the increased rating claim, in excess of 70 percent, for PTSD, beginning July 7, 2008, pending additional development, which includes obtaining outstanding files and/or medical records. Thereafter, in a November 2018 rating decision, the RO assigned a 70 percent disability rating for PTSD, with the earlier effective date of January 10, 2005. Finally, it should be noted that subsequent to the Board’s July 2018 decision and remand, in a September 2020 Supplemental Statement of the Case, the RO addressed but denied the Veteran’s claim for a total disability evaluation based upon individual unemployability (TDIU). In October 2020, the Veteran filed a timely VA Form 10182 in which he appealed that decision and asked for Direct Review by a Veterans Law Judge. That appeal transferred that matter from the Board’s Legacy appeals adjudication system into the newly created Appeals Modernization Act appeals adjudication system. It has been assigned a docket number and will be subject of a separate decision by the Board once it reaches its place in docket order. Increased Rating for PTSD Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently assigned a 70 percent disability rating for PTSD, under 38 C.F.R. § 4.130, DC 9411. He asserts entitlement to an increased rating for his PTSD. See e.g. August 2015 Board Remand. The criteria for evaluating PTSD are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted where there is 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires 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 listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442 – 44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). Throughout the course the entire appeal, the Veteran was afforded several VA examinations for assessment of the current severity of his psychiatric disability. Specifically, an October 2005 VA examination reflects that the Veteran had some symptoms of difficulty adjusting to life after military service. At this examination, the Veteran reported having difficulty with holding down jobs; difficulty with anger outbursts, since his return from military; and some sleep disturbances with nightmares and “thrashing out” in his sleep. Additionally, the Veteran reported that he was hospitalized twice, after leaving the military, for suicide attempts with slashing his wrists. In a summary of the Veteran’s mental disability, the VA examiner noted, in pertinent part, that the Veteran did not have significant symptoms of flashbacks, hypervigilance, hyperarousal, or avoidance; he had some symptoms of anxiety and frustrations that met the criteria for adjustment disorder with anxiety; and at the time, the Veteran did not have significant social or occupational impairments from his symptoms of anxiety or nightmare. The VA examiner clarified that the Veteran’s more active problems, at that time, were his symptoms of frustration and anger; and that he used cannabis infrequently to treat his symptoms of anxiety. A September 2008 VA examination for PTSD indicates that with respect to the Veteran’s post-military psychosocial history, the Veteran had a history of arrests and imprisonment for breaking the law. Additionally, he reported that he was kicked out of high tech institute because he was “not adapting properly, [and he] cursed the president out and [he had] less than a short fuse.” The VA examination report further reflects that he reported feelings of anger and becoming violent, breaking his wrist, cutting his arm and becoming argumentative with his child’s mother, and that he had no close relationship at the time of this examination. The VA examiner described the degree and quality of the Veteran’s social relationship as “poor social functioning and no friends.” At the time, he had been attending cooking school on a full-time basis, since August 2008, and remained in good standing. The VA examination report also reflects that the Veteran had a history of suicide attempts. The Veteran reported an instance where he was interrupted by police, with a gun in his mouth, and he was taken to a hospital for a total of 7 days; he continued to cut himself for approximately three months, following his discharge from a medical facility, and then stopped; and that thereafter, he began heavy use of marijuana and alcohol from 2004 to 2006. On psychiatric examination, the VA examiner noted that the Veteran was clean, casually dressed; psychomotor activity was described as tense; speech was unremarkable; his attitude towards the examiner was described as cooperative, attentive, and guarded; affect was restricted; and mood was described as neutral. Further, attention was intact; he was oriented to person, time, place and process (oriented times 4); his thought process was unremarkable; there were no delusions; he understood outcome of behavior; and exhibited average intelligence. The VA examination report further noted that the Veteran had sleep impairment, and specifically, chronic insomnia with frequent intrusive thoughts and nightmares; but there was no evidence of hallucinations; inappropriate behavior; panic attacks; or homicidal thoughts. However, the VA examination report does note that the Veteran manifested a pattern of obsessive/ritualistic behavior, and specifically, a history of cutting his wrists. Although suicidal thoughts were noted, the VA examination report clarified that the Veteran had “passive ideations with no active ideas or plan” at the time. Additionally, poor impulse control was noted, as well as episodes of violence. However, the VA examination report also reflects that the Veteran had the ability to maintain minimal personal hygiene; there were no problems with activities of daily living; and that his memory was normal. The VA examiner diagnosed the Veteran with Axis I, PTSD, and additionally, noted that the Veteran’s prognosis is “guarded.” He described the level of occupational and social impairment of the Veteran’s PTSD as an occupational and social functioning as an occupational and social impairment with symptoms that result in deficiencies in judgment, thinking, family relations, work, and mood. Specific examples the VA examiner provided, to support this conclusion include, judgement that is “clouded and poor with impulsive anger episodes”; separation from his girlfriend and a poor relationship with his mother (family relations); going through 26 job changes (work); and feeling depressed, anxious, and restricted (mood). A February 2012 VA examination for PTSD reflects that the level of occupational and social impairment on the Veteran’s PTSD was described as 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. At this examination, although the Veteran stated that he had usually had a good relationship with his mother, he had a fight with her, in which she kicked him out of the house, on the night prior to this VA examination. He explained that he did not expect their relationship to be repaired because she told him that she did not want anything to do with him, and that he was crazy. He also reported that although his father passed away in 2009, he never knew him. Additionally, he reported that he did not have any friends, and that although he keeps to himself, he would often visit his cousin, on occasion. Although he reported having a history of arrests, he denied being physically abusive to others. However, the VA examination report notes a history of suicide attempts, including a history of cutting himself, although he stated that his intent was not to kill himself, but “to feel alive”; and an incident in which he stuck a pistol in his mouth, and his neighbors contacted the police. The Veteran explained that he thought that he would better off because he had not been functioning well, since his return from Iraq. He reported that he was hospitalized at a medical facility for three days. The VA examiner determined that the applicable symptoms of his PTSD, include and are not limited to, depressed mood; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and an inability to establish and maintain effective relationships. A June 2015 VA examination reflects that the level of occupational and social impairment on the Veteran’s PTSD was described as an occupational and social impairment with reduced reliability and productivity. At this VA examination, the Veteran reported, in pertinent part, that he stays to himself; and that his family does not want to have anything to do with him. He also reported that he was living in the streets. Further, he reported having a history of suicidal ideation in 2013/2014, with a plan to jump off a bridge. He described his mood as feeling “down”, and that nothing “ever cheers [him] up”, although he noted that he feels better around animals and his son, but otherwise, he tends to keep to himself. He additionally reported that his homelessness had been particularly stressful; and that he worries about his reactions, anger, and irritability, so he does not spend much time with other people. He also reported having 0 – 4 hours of sleep per night, and that he feels fatigued, and has trouble falling asleep; he feels that he experiences nightmares and hot sweats, which also interfere with his sleep; having auditory experiences of a raspy voice that seems to say “you’d be better off dead”; unusual visual hallucinations, while he is in the dark, where he may see a dark shadow or a flash of light; having regular suicidal ideation, without any plan or intent, although he denied acting on these thoughts, because of his son. The VA examiner determined that the symptoms that are applicable to the Veteran’s mental disability, include, depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and an inability to establish and maintain effective relationships. On mental status examination, the VA examiner observed that the Veteran was clean, groomed, and dressed casually for the examination; speech was at normal rate and volume, though occasionally slurred; he was oriented times 3, and his answers were logical and relevant to the questions asked. The VA examiner found no evidence of any psychosis, and the Veteran denied having any auditory or visual hallucinations; and attention and concentration were good, throughout the examination. The VA examiner also observed that the Veteran’s memory appeared to be intact; range of affect was restricted and dysphoric; and although the Veteran reported having suicidal ideation, there was no intent or plan, and he denied having any thoughts of hurting other people. Although this VA examination report reflects that the Veteran reported a psychiatric hospitalization in Orlando, in 2013, and the VA examiner noted that there was no record of hospitalization found in his claims file, the Veteran clarified that he was hospitalized in 2004 at the Orlando VA Medical Center. See June 2015 Report of General Information. An April 2019 VA examination reflects that the level of occupational and social impairment on the Veteran’s PTSD was described as an occupational and social impairment with reduced reliability and productivity. At this VA examination, he described his relationship with his mother as “ok”, and that he was residing with her. He further reported that he has sisters, of whom he maintains contact with, except for one, as well as a son, of whom he also maintains contact with. The VA examiner determined that the symptoms that actively apply to the Veteran’s mental disability, includes depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. On mental status examination, the VA examiner observed that the Veteran demonstrated a relaxed motor activity and that he was cooperative during the examination; his rapport was easily established; his speech and volume was at a normal rate; his attention/concentration were intact; he maintained appropriate eye contact during the examination; his affect was restricted; and his mood was slightly anxious. The VA examiner also remarked that the Veteran demonstrated average to above average intellectual functioning; his thought processes were linear; he did not display any perceptional issues/psychotic features during the examination; and he did not report having any current intention of suicide or homicide. Medical treatment records reflect symptoms and manifestations of PTSD that are consistent with those noted in the above-mentioned VA examinations. See e.g. December 2008 Psychiatry Outpatient Note (noting chief complaints, to include nightmares, insomnia, disturbing thoughts, and paranoid ideation); see also April 2009 Psychiatry Outpatient Note (noting that the Veteran’s mood was depressed); see too, November 2011 Mental Health Outpatient Treatment Plan (noting identified concerns, including irritability, mood swings, trouble sleeping, hypervigilance/anxiety); see too, July 2020 Psychiatry Note (reflecting that the Veteran’s psychiatric symptoms, include depressed mood, anxiousness, sleep impairment, including nightmares; difficulty concentrating; avoidance of external reminders (people, places, activities, etc.). At the same time, medical treatment records also consistently showed that despite severe PTSD symptoms, he was neatly groomed and/or casually dressed; oriented times 3; his hygiene was normal; and evidence of poor judgement was not shown or noted. See e.g. July 2008 Pharmacy Outpatient Medication Management Note; see, too September 2011 Triage Note. Overall, the Veteran’s PTSD is approximated by severe social and occupational impairment due to symptoms and manifestations, including and not limited to, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships; an inability to establish and maintain effective relationships; irritability; and suicidal ideation. However, based on a review of all probative evidence, a rating in excess of 70 percent is not warranted. The frequency, severity, and duration of the manifestations and symptoms typically associated with a 100 percent rating, such as, for example, gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, and/or memory loss for names of close relatives, own occupation or own name, are not shown. Specifically, for example, and as noted above, the medical evidence reflects that that the Veteran was consistently oriented to person, time, place and process, his thought process was unremarkable, delusions were not noted or observed at any of his VA examinations, and he understood the outcome of his behavior. Thus, gross impairment in thought processes or communication is not shown. Additionally, the medical evidence also consistently indicated that the Veteran was well groomed and casually dressed at examinations and appointments. Also, at one point during this appellate period, he reported that he was watching his son during the day, while his child’s mother was at work. See March 2010 Mental Health Initial Evaluation Note. Further, he reported that he went alligator hunting, 3 – 4 times a week, as well as playing video games. See September 2011 Mental Health Initial Evaluation Note. Thus, an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, is not shown. Accordingly, these examples, among several noted above, do not suggest that the Veteran’s PTSD is approximated by a total occupational and social impairment. (Continued on the next page)   The Board notes that the evidence reflects that the Veteran has some memory loss. However, the evidence has not shown that the Veteran’s memory loss is of the degree and magnitude of memory loss for names of close relatives, own occupation, or the Veteran’s own name. Additionally, while the Veteran has a history of hospitalization, due to his mental disability, there have been no additional history of hospitalizations since 2004. Thus, as the overall probative evidence is not tantamount to a total occupational and social impairment, entitlement to an increased rating, in excess of 70 percent, for PTSD, must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.