Citation Nr: 21010103 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-27 290 DATE: February 24, 2021 ORDER Entitlement to an initial disability rating of 50 percent, and no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT From November 14, 2013 to October 16, 2019, the Veteran’s PTSD has been manifested by symptomology indicating occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 50 percent, and no higher, for PTSD have been met prior to October 16, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from August 1966 to August 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Veteran was granted service connection for PTSD in the March 2014 rating decision on appeal. The Veteran then submitted a timely notice of disagreement (NOD) and appealed the initial disability rating assigned for his service-connected PTSD to the Board, which then denied an initial disability rating in excess of 30 percent in a July 2016 decision. Subsequently, the Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). The Court issued a memorandum decision in December 2017 vacating and remanding the issue of an increased initial rating for the Veteran’s PTSD. As a result, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) in a November 2018 decision for further evidentiary development. Such development was completed, and the matter has presently returned to the Board. During the pendency of the appeal, the AOJ issued a rating decision in September 2020, which increased the Veteran’s current disability rating for his PTSD to 100 percent, effective October 16, 2019. As a higher rating for PTSD is available for the period prior to October 16, 2019, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to an initial disability rating of 50 percent, and no higher, for PTSD is granted. The Veteran contends he is entitled to an initial disability rating higher than the assigned 30 percent for his service-connected PTSD prior to October 16, 2019. Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's PTSD is rated under Diagnostic Code 9411. Pursuant to DC 9411, a 30 percent rating is assigned when there is when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). A 50 percent rating is assigned 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. A 70 percent rating is assigned when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. A 100 percent rating is assigned if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. See 38 C.F.R. § 4.71a, DC 9411, General Rating Formula for Mental Disorders. Symptoms listed in VA's general rating formula for 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. In addition, the rating must be 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. Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but a rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126. Evidence relevant to the level of severity of the Veteran’s PTSD for the period prior to October 16, 2019, includes lay statements from the Veteran, a VA examination and report, private treatment records, and VA treatment records. The Veteran was initially afforded a VA examination for his PTSD in February 2014. The VA examiner confirmed the Veteran’s DSM-5 diagnosis of PTSD. The Veteran reported that following Vietnam, he attempted college twice, but did not complete it because he lost interest. The Veteran then reported that he went to work for a furniture company, but that didn’t work out due to “politics.” Following that job, the Veteran went to work for a building company and started truck driving, which he continued to do for 40 years, finally retiring in July 2012. Regarding social relationships, the Veteran reported that he has been married twice. His first marriage, from 1971 to 1997, ended because they discovered that “we couldn’t stand each other.” The Veteran has three children from his first marriage and reported a “good” relationship with them and his grandchildren. The Veteran’s second marriage began in 2005, and the examiner noted that the relationship is “very good” but the Veteran reported that their sex life has waned due to “lack of interest.” The Veteran reported that he first began to experience anxiety attacks in the fall of 1998 that would occur when he would try and relax and go to sleep. Regarding PTSD diagnostic criteria, the VA examiner indicated that the Veteran’s symptoms include: intense or prolonged psychological distress at exposure to internal or external cues that symbolize an aspect of the traumatic events the Veteran witnessed during combat in Vietnam; avoidance behaviors; persistent and exaggerative negative beliefs or expectations of himself, others, and the world; persistent, distorted cognitions about the cause or consequences of the traumatic events; markedly diminished interest or participation in activities; feelings of detachment and estrangement from others; irritable behavior and angry outbursts; hypervigilance; problems with concentration; and sleep disturbances. Regarding other psychiatric symptoms, the VA examiner noted that the Veteran also experiences 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. Upon behavioral observation, the VA examiner noted that the Veteran was well-dressed, neat, and adequately groomed. The VA examiner noted that eye contact was good, thought processes were circumstantial, and thought content was consistent with the topics. The VA examiner described the Veteran’s speech as “pressured, overly detailed, and circumstantial” stating that he was able to redirect the Veteran, but the Veteran indicated “[m]ost people learn to dislike me because I talk too much.” The VA examiner described the Veteran’s affect as “sunny” and noted that the Veteran “did a good job explaining his current situation.” Regarding occupational and social impairment, the VA examiner indicated that “a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.” The VA examiner also remarked that the Veteran denied having occupational impairment due to his symptoms and noted that “he does not appear to have social impairment, other than having few friends of his own, but has several through his wife.” Private treatment records for the appeal period reflect that the Veteran attended a local Veterans center multiple times per month for both individual and group counseling. During his intake evaluation, the Veteran reported feeling anxiety, depressed mood, chronic and severe sleep disturbances, and experiencing intrusive memories of his combat service in Vietnam. The Veteran also indicated that he worked as a truck driver because it allowed him to be “on the road by myself, and that’s the way I like it.” See August 19, 2014 intake evaluation note. VA treatment records reflect that despite the VA examiner’s classification of the Veteran’s marriage as “very good” the Veteran actually experienced his second divorce shortly after his VA examination, which increased his feelings of isolation and loneliness. See e.g., October 11, 2016 VA primary care note. VA treatment records also indicate that shortly after the February 2014 VA examination, the Veteran reached out to his treatment providers and requested a SSRI medication prescription to assist him in managing his mood and symptoms of his PTSD. The Board finds that the Veteran's disability picture prior to October 16, 2019 for his service-connected PTSD is more consistent with a 50 percent rating, with occupational and social impairment with reduced reliability and productivity as a result of his symptoms. The above-cited evidence reflects that the Veteran's psychiatric disorder was manifested by: impaired impulse control, disturbances of motivation and mood, panic attacks more than once a week, difficulty in establishing and maintaining effective work and social relationships, mild memory loss, depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran experiences persistent distressing and intrusive thoughts and regarding his trauma during his military service, resulting in severe sleep disturbance. The Veteran also exhibited persistent avoidance and hypervigilance behaviors throughout the period on appeal. While the February 2014 VA examiner intimated that the Veteran had good social relationships during this period on appeal, the Veteran quickly divorced his second wife, and endorsed feelings of estrangement resulting in isolation and withdrawal. In addition, the only career that the Veteran has been able to maintain successfully was his truck driving, which he himself reported was due to his total isolation from others. Collectively, these symptoms are of the type, extent, severity and/or frequency to result in occupational and social impairment with reduced reliability and productivity. However, a rating greater than 50 percent is not appropriate because the evidence of record does not indicate that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as contemplated by the 70 percent rating criteria. The Veteran has consistently denied suicidal ideation throughout the record for the period on appeal, as evidenced by his VA and private treatment records. Furthermore, there is no mention in the record for this period on appeal of obsessional rituals, illogical speech, spatial disorientation, neglect of personal appearance and hygiene, or other symptoms on par with the level of severity contemplated by those symptoms. Therefore, the Board finds that an initial disability rating of 50 percent for the Veteran's PTSD prior to October 16, 2019 demonstrates that VA has taken into consideration the Veteran's statements as well as all medical evidence of record, in that the Veteran's PTSD symptoms are impairments and that his symptoms manifest in a way that reduces his reliability and productivity. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.