Citation Nr: 21010007 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-30 770A DATE: February 23, 2021 ORDER Subject to the law and regulations governing payment of monetary benefits, entitlement to a100 percent initial evaluation for service-connected posttraumatic stress disorder (PTSD) from November 30, 2010, to June 23, 2013, and from September 1, 2013, to February 16, 2015, is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, the most probative evidence reflects that his service-connected PTSD is manifested by severe symptomatology, resulting in total occupational and social impairment throughout the entirety of the appeal period. CONCLUSION OF LAW From November 30, 2010, to June 23, 2013, and from September 1, 2013, to February 16, 2015, the criteria for a 100 percent initial evaluation, for service-connected PTSD, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1970 to June 1973. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). Most recently, in December 2020, the Veteran was provided a rating decision, after an October 2020 Board remand directed the AOJ to obtain an additional medical opinion. The AOJ granted entitlement to a total disability rating based on individual unemployability (TDIU) effective November 30, 2010. The AOJ also increased the Veterans PTSD rating to 70 percent from November 30, 2010, an evaluation of 100 percent from June 24, 2013, to August 31, 2013, and an increase to 70 percent effective September 1, 2013, until February 16, 2015, after which time a total evaluation was assigned. The AOJ’s actions outlined above created “staged” evaluation for this disability but was not a full allowance of the benefits sought. As such, the appeal remained in appellate status and has been recharacterized as stated on the title page. See e.g., AB v. Brown, 6 Vet. App. 35, 38- 39 (1993); Hart v. Mansfield, 21 Vet. App. 505 (2007). In May 2013, the Veteran testified at a Board videoconference hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. Entitlement to an evaluation in excess of 70 percent for service-connected PTSD from November 30, 2010, to June 23, 2013, and from September 1, 2013, to February 16, 2015 Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran and representative have asserted that his service-connected psychiatric disability warrants an increased rating, which is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 70 percent disability evaluation 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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.” Id., at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id., at 443. Analysis The Veteran asserts that his service-connected psychiatric disability is more disabling than the currently-assigned 70 percent initial evaluation for the period from November 30, 2010, to June 23, 2013, and from September 1, 2013, to February 16, 2015, and that the functional impairment stemming from this disability is more congruent with total occupational and social impairment. For the reasons expressed below, the Board agrees. The evidence of record, to include VA treatment records and reports of March 2011 and February 2015, and December 2020 VA examinations, reflect that the Veteran has experienced severe psychiatric symptoms prior to, and throughout, the appeal period. He has consistently reported experiencing intrusive thoughts, flashbacks, irritability, avoidance, emotional numbing, hypervigilance, an exaggerated startle response, detachment and estrangement from friends and family members, disturbances of motivation and mood, short-term memory impairment, nightmares, anxiety and isolation. These symptoms have been reported with increasing severity and frequency. As evidence by the AOJ’s allowance of TDIU due solely to his service-connected PTSD, the evidence firmly shows that this disability manifests in total occupational impairment. As such, the crux of the Veteran’s appeal is whether the most probative evidence reflects that PTSD results in total social impairment during the appeal period for consideration from November 30, 2010, to June 23, 2013, and from September 1, 2013, to February 16, 2015. To this point, while the Veteran marriage remains intact, he has virtually no other social interaction. Statements from the Veteran, his wife, and his grandchildren establish the total social impairment of the Veteran. The Veteran’s wife provided a statement in March 2011 that the Veteran no longer wants to be around crowds, or at family gatherings, and that he now has a hard time dealing with his children and grandchildren. The Veteran’s grandchildren provided a statement in May 2012 indicating that the Veteran and his wife’s marriage had changed and had become more of a job instead of a relationship. They further stated that the relationship between the Veteran and his son had deteriorated and that the tension had become unbearable, such that arguments between the Veteran and his son can quickly turn into fist fights. These statements were further elaborated upon at the Veteran’s April 2013 hearing by both the Veteran and his wife. The Veteran and his wife confirmed that the Veteran no longer has friends, his children and grandchildren no longer want to be around him, and that when he does interact with people it is not uncommon for him to escalate into physical altercations. The Veteran asserts that his service-connected psychiatric disability is the cause of the above-noted interpersonal issues, and the evidence of record is congruent with this assertion, as his agitation, anxiety, irritability, and panic are manifestations of this service-connected disability. The Veteran asserts that his service-connected psychiatric disability is the cause of the above-noted interpersonal issues, and the evidence of record is congruent with this assertion, as his agitation, irritability, and inability to “get long” with others, to include and family members, is due to this disability. The Board acknowledges that the medical evidence of record does not reflect that the Veteran experiences all of the symptoms associated with the 100 percent schedular evaluation. However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board concludes that the Veteran is entitled to an initial evaluation of a 100 percent throughout the entirety of the appeal period. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.