Citation Nr: 21010006 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-40 826 DATE: February 23, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to November 10, 2020, is granted. FINDING OF FACT During the entire rating period on appeal, the Veteran’s service-connected PTSD manifested as occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 70 percent, but no higher, for PTSD, prior to November 10, 2020, have been met. 38 U.S.C. §§ 1110, 1155, 5103A, 5107; 38 C.F.R. § 3.156, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from October 1968 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Board notes that the April 2013 rating decision did not become final because the Veteran submitted new and material evidence pertaining to assigning a higher rating for PTSD within a year of the April 2013 initial assignment. 38 C.F.R. § 3.156(b). The Board finds that the Veteran’s contentions of record during the pendency of this appeal reflect that he has sought a rating of 70 percent for the entire period on appeal. See September 2014 NOD and April 2020 IHP. The Board has recharacterized the issue to better reflect the Veteran’s contentions and the fact that the appeal is understood to properly arise from the Veteran’s April 2013 rating decision. The matter was previously remanded in May 2020 for further development. The matter returns for appellate consideration. During the pendency of the appeal, in a November 2020 rating decision, the RO granted an increased rating for PTSD rated as 50 percent disabling, to 70 percent disabling effective November 10, 2020. However, although the Veteran sought a 70 percent disability rating for his PTSD, an increased rating remained denied for the period prior to November 10, 2020. As such, the earlier period remains at issue on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to an initial disability rating of 70 percent, but no higher, for PTSD prior to November 10, 2020, is granted. The Veteran’s service-connected PTSD has been evaluated as 50 percent disabling prior to November 10, 2020, and as 70 percent disabling thereafter, under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the provisions for rating psychiatric disorders, a 50 percent rating is warranted when 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 (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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted when 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; inability to establish and maintain effective relationships.) A 100 percent rating is warranted when there is 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. Ratings are assigned according to the degree of occupational and social impairment resulting from manifestations of the disability at issue. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. A March 2011 mental health note reflects the Veteran’s complaints for worsening vivid memories surrounding traumatic events in Vietnam, but he denied flashbacks, nightmares, hypervigilance, anger problems, increased arousal or emotional blunting. Upon behavioral and mental observations, the Veteran was sad and mildly depressed, but otherwise appeared in good health and displayed coherent and spontaneous speech with a goal directed and logical thought process. See September 2011 Medical Treatment Record. An October 2011 VA examination demonstrates that the Veteran did not meet the full diagnostic criteria for PTSD. The examination notes the Veteran’s ongoing psychiatric treatment at Lovell Federal Health Care Center focused on memories of Vietnam and adjustment to unemployment. Upon behavioral observations, the Veteran appeared casually dressed, well-groomed, and in a good mood. Upon mental observation, the Veteran displayed some dysphoria when discussing his difficulties with employment, foreclosure of his home, and service in Vietnam, as well as, memory deficits. He denied suicidal or homicidal ideations. The Veteran reported mild sleep disturbances and indicated that he heard noises at night prompting him to engage in obsessional rituals of checking windows/doors due to paranoia. He also reported engaging in hobbies and activities, such as building intricate birdhouses and growing flowers. An April 2013 VA examination reflects a diagnosis of PTSD. The examination report indicates that the Veteran’s psychiatric symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner noted the Veteran had emotional behavioral disturbances with more frequent occurrences and increase in the severity of his PTSD symptoms; difficulty managing emotional distress when talking about combat history and transitioning into retirement; daily intrusive thoughts of wartime experience; hypervigilance; paranoia that others were targeting him, resulting in obsessional rituals (i.e. checking locks and parameters); avoidance of situations/interactions with others that may have resulted in discussing his trauma; depressed mood and feelings of guilt surrounding his duties in service; difficulty falling asleep and through the night (averaging 3 to 4 hours per night); restlessness; and occasional shouting in his sleep. Social interaction with others, to include significant family members, was noted as limited since separation from service. The Veteran reported a strained relationship with his wife, more specifically the lack of communication and intimacy, and that he was unhappy with his overall relationship with his wife. He stated that he had no friends and relations outside his family due to difficulty making friends and a lack of interest to be around others following service. He also reported that he was laid off from his job in 2010 and lost his home, which had impacted his mood. He indicated that he was easily agitated by others, consistently irritable most days, and had frequent emotional and behavioral imbalances. The Veteran reportedly engaged in hobbies, such as constructing/designing bird houses and hybridizing/selling flowers, but stated that he remained irritable and depressed despite his efforts to manage stress. He denied suicidal or homicidal ideations. VA mental health notes in April 2013 continue to reflect the Veteran’s complaints related to stressors surrounding family issues and his attempts to engage in more hobbies to manage his stress level. An August 2013 Disability Benefits Questionnaire (DBQ) reflects diagnoses for PTSD, insomnia, and generalized anxiety. The examiner noted the Veteran’s PTSD symptoms as including poor concentration, nightmares, intrusive thoughts, guilt, irritability, and a startled response. The examiner also noted that the Veteran’s mental diagnoses resulted in occupational and social impairment with deficiencies in most areas such as work, thinking, and/or mood. The Veteran identified his family members as a wife of 39 years and two adult sons. He reported that he engaged in hobbies, to include building birdhouses and growing lilies. The examination also reflects the following symptoms/behaviors: recurrent and distressing recollections of events, recurrent distressing dreams, efforts to avoid thoughts/feelings of trauma, efforts to avoid activities (i.e. fireworks), sense of foreshortened future (drove motorcycle 110 mph), difficulty falling asleep, irritability or outburst of anger, difficulty concentrating, hypervigilance, exaggerated startle response, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, guilt, nightmares, intrusive thoughts, crying spells, and isolation. VA mental health notes from 2013 to 2018 further reflect the Veteran’s struggles with insomnia, intrusive thoughts about Vietnam, irritability, anxiety, emotional numbness, feelings of guilt, aggravation, and hyper startle (especially with fireworks or helicopters). The Veteran did not endorse suicidal or homicidal ideations. See September 2013, January 2014, October 2014, and May 2020 CAPRI. In his September 2014 Notice of Disagreement (NOD), the Veteran reported his participation in weekly therapy sessions and that he saw a psychiatrist every two months. He also reported difficulty sleeping throughout the night, intrusive/suicidal thoughts, and that he remained reclusive while spending time on his hobbies. An October 2014 VA examination demonstrates the Veteran had been married to his wife for 40 years and had a good relationship. He reported that they have separate rooms due to his sleep issues. He also relayed that he had limited contact with his son and grandchildren, even though they live nearby, he kept to himself, and he enjoyed his hobbies of yardwork and birdhouse building. He also reported that he enjoyed solitary activities. He denied having friends with whom he talked to or spent time. Reportedly, he occasionally went to the flea market or garage sales with his wife. The Veteran continued to report intrusive thoughts of Vietnam, obsessional rituals due to paranoia, insomnia, anxiousness, intermittent depressed mood, and avoidance of confrontation with others. He denied suicidal or homicidal ideations. The examination report lists the Veteran’s PTSD symptoms as including depressed mood; anxiety; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. The examiner found the Veteran’s mental diagnosis resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner also reported the Veteran exhibited mild impairment in social functioning, as evidenced by limited social activities, contacts, and interactions with family. The examiner, however, found that the Veteran did not exhibit occupational impairment due to mental health symptoms. The examiner stated that the Veteran was capable of social interaction with others, although he preferred limited social interaction and would rather engage in solitary activities. Based on the foregoing evidence, the Board determines that the Veteran is entitled to an initial disability rating of 70 percent for PTSD, as his symptoms more closely approximates occupational and social impairment with deficiencies in most areas for the entire period on appeal. 38 C.F.R. § 4.7. Throughout the period, the Veteran variously endorsed obsessional rituals which interfere with routine activities, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The Veteran reported the persistent need to check windows/doors due to hypervigilance and paranoia from hearing noises at night. He also expressed dissatisfaction within his marriage, noting a lack of intimacy and communication, and reported a minimal relationship with his son and grandchildren. The evidence of record also demonstrated the Veteran had difficulty managing emotional distress when talking about his combat history and often avoided social interaction with others outside of his family. The Board acknowledges that the October 2014 VA examiner opined the Veteran was capable of social interaction but preferred to engage in solitary activities; however, the medical evidence of record undoubtedly confirms that the Veteran struggled with daily anxiety, depression, emotional instability, and hypervigilance throughout the appeal period and sought reclusive hobbies to manage his stress levels. Moreover, the Veteran consistently reported intrusive thoughts about distressing events in Vietnam and his struggles with chronic sleep impairment. VA mental health records reflected continuous psychiatric treatments, at least until March 2017, at the Captain James Lovell Federal Health Center. Furthermore, the July 2013 VA examiner found the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, with particular emphasis in the areas of work, thinking, and mood. Therefore, resolving any doubt in favor of the Veteran, the Board grants an increased rating of 70 percent prior to November 10, 2020. This represents a full grant of the benefit sought, given the Veteran’s assertions in his September 2014 NOD and April 2020 IHP. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Signature on the next page) DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.