Citation Nr: 21009306 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-13 473 DATE: February 22, 2021 ORDER For the period prior to January 12, 2016, an increased initial rating of 70 percent for post-traumatic stress disorder (PTSD) with depression, anxiety, and alcohol abuse is granted. For the period since January 12, 2016, an increased initial rating of 100 percent for PTSD with depression, anxiety, and alcohol abuse is granted. FINDINGS OF FACT 1. Prior to January 12, 2016, the Veteran’s PTSD was productive of occupational and social impairment with deficiencies in most areas. 2. Since January 12, 2016, the Veteran’s PTSD has been productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. For the period prior to January 12, 2016, the criteria for an initial rating of 70 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. Since January 12, 2016, the criteria for an increased initial rating of 100 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to June 1964 and again from February 1968 to October 1969. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in April 2017, when it was remanded for further development; in October 2018, when an initial rating in excess of 30 percent was denied; and in December 2019, when the Board denied a rating in excess of 30 percent prior to, and a rating greater than 70 percent after October 19, 2018. During the pendency of the appeal, the agency of original jurisdiction (AOJ) increased the Veteran’s PTSD disability rating from 30 percent to 70 percent, effective October 19, 2019. The Veteran appealed both the October 2018 and December 2019 Board decisions to the Court of Appeals for Veterans Claims (CAVC), and both appeals resulted in a Joint Motion for Partial Remand (JMPR) by the parties. The October 2020 JMPR, like the July 2019 JMPR, directed the Board to reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision. Pursuant to the JMPR, the Board has reviewed all evidence in the claims file with an emphasis on the evidence relevant to this appeal. Nonetheless, although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Disability Ratings Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. To warrant a higher disability rating under 38 C.F.R. § 4.130, the evidence must show or most closely approximate: 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 (e.g., 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 (50 percent) Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, 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 (70 percent). total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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 (100 percent). The list of symptoms under the rating criteria are examples of symptoms that would warrant the rating, but are not exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). However, that is not the case where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Separate ratings may be assigned for separate periods of time based on the facts found—a practice known as “staged rating”. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the Veteran expressed dissatisfaction with the initial rating for PTSD and continuously pursued the claim. See 38 C.F.R. § 3.160. Therefore, his initial claim has not become final. 1. Entitlement to an initial disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD) with depression, anxiety, and alcohol abuse The Veteran is entitled to an initial disability rating in excess of 30 percent. Here, the record reflects a positive PTSD screening in December 2009. Thereafter, the Veteran was twice admitted to the psychiatric intensive care unit for depression and suicidal thoughts. See August 6, 2020 CAPRI. However, between June 2011 and the date of the initial rating decision (April 4, 2014), the Veteran repeatedly denied suicidal ideation or intent. Nonetheless, the record reflects several symptoms that more closely approximate a 70 percent disability rating, predating the claim and continuing until they increased around January 12, 2016. Those symptoms include impaired judgement, reflected by multiple instances of arriving to work intoxicated; an inability to maintain long-term employment; increased anxiety; near continuous depression; impaired impulse control, reflected by hitting people and objects when irritable; and periods of continued isolation. See, e.g., August 6, 2020 CAPRI. Based on the aforementioned, the Board finds that the Veteran’s symptomology more closely approximated a 70 percent disability rating as of the date of the claim. 2. Entitlement to a disability rating in excess of 70 percent from January 12, 2016 As of January 12, 2016, the record reflects a significant increase in the Veteran’s PTSD symptoms. It is demonstrated as of that date that he had begun having cognitive problems, did not associate with other people much, and hardly ever saw his two children. Id. In March 2016 the Veteran exhibited impaired cognition, including judgment, reasoning, and processing speed. See June 13, 2016 Medical Treatment Record- Non-Governmental Facility. He stated at that time that he had memory problems and “trouble thinking” for the previous two to three years and that while he continued to drive, he got lost in familiar places approximately once per month. August 6, 2020 CAPRI. By April 2016, The Veteran’s provider recommended that his wife oversee management of his finances and that another individual oversee the Veteran’s medications. Unfortunately, as of July 2017, the Veteran was no longer living with his wife and was living alone. Id. He reported getting so angry that he broke objects and experiencing constant nightmares and depression. Due to the Veteran’s impaired cognition; his forgetfulness, namely forgetting to take medication and getting lost in familiar neighborhoods while driving; continued isolation; and irritability with periods of violence the Board finds that his symptomology more closely approximates a 100 percent rating beginning January 12, 2016. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sloley, 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.