Citation Nr: 21010455 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-53 211 DATE: February 24, 2021 ORDER Entitlement to an initial rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the appeal period, the preponderance of the probative evidence weighs in favor of finding that the PTSD caused occupational and social impairment with deficiencies in most areas (contemplated by the 70 percent rating). CONCLUSION OF LAW Throughout the appeal period, the criteria for an increased rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 10, 1962 to June 16, 1972, with service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued on January 6, 2017 and June 4, 2020 by the Department of Veterans Affairs (VA) Regional Office (RO). In the initial rating decision, the Veteran was granted service connection for PTSD with an evaluation of zero percent effective August 29, 2016, the date VA received his intent to file a claim. In June 2020, the Veteran’s initial rating was increased to 50 percent. In January 2021 the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Increased Disability Rating 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. In a decision, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the Veteran’s PTSD is rated at 50 percent, effective August 29, 2016, the date of his initial claim for PTSD. The Veteran’s PTSD is rated under Diagnostic Code 9411. Pursuant to that code, 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 warranted 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. 38 C.F.R. § 4.71a, Diagnostic Code 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. After review of the evidence of record, the Board finds that the Veteran’s PTSD symptoms more closely approximate a 70 percent disability rating. Specifically, the evidence demonstrates social and occupational impairment with deficiencies in most areas, including family relations, work, thinking, and mood, due to symptoms such as: impaired impulse control, anger, depressed mood, anxiety, chronic sleep impairment, and inability to establish and maintain effective work and social relationships. At a May 2020 VA examination, the examiner noted the following symptoms or findings: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous depress affecting the ability to function independently, appropriately and effectively; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and inability to establish and maintain effective relationships. In an initial VA PTSD examination in December 2016, the examiner noted the Veteran’s chronic sleep problems, flattened affect, and impaired judgment. The Veteran reported sleep problems, stating that he wakes up sometimes with his hear racing about three times per night. The examiner reported that the Veteran stated that he strangled a guy at Fort Lee, Virginia and told the man that he would kill him because the man accused him of things the Veteran had not done and picked on him. This is not in his records. The Veteran stated that the warrant officer on duty offered him the ability to move so that his record would not be tarnished. A September 2016 VA mental health treatment record noted that the Veteran had symptoms of PTSD including distress related to trauma reminders, depression, and hyperarousal. The clinician noted that the Veteran likely has addition symptoms that he cannot identify yet as has just become aware of his behavior. With respect to deficiencies in family relations and social relationships, the Veteran has stated that he cannot see his children for more than one hour before he needs to return home. In a December 2016 lay statement, the Veteran’s wife of 45 years stated that before going to Vietnam, the Veteran was a very social person with many friends and acquaintances. She stated that after returning from Vietnam, he seemed quiet, cold and isolated himself weeks on end. She stated that the family could not take vacations because of the Veteran’s fears and social anxieties. The Veteran missed many family get-togethers and his children’s activities to avoid crowds. The Veteran testified that he has difficulty going out in public. He avoids going into stores as much as possible. The Veteran testified that he only has one real friend who he talks to on the telephone. With respect to deficiencies with work, the Veteran reported that after separating from the Army, he has not been able to maintain any employment position for a length of time, impacting his current resources. His longest term at any one job was seven years at Fort Lee, Virginia. The May 2020 VA examiner noted that the Veteran has almost always needed to work by himself and outdoors, holding positions as an instructor in the army, a painter, logger, truck driver, apartment management, and various construction jobs. He was last employed in 2014. Overall, the Veteran has demonstrated a level of impairment consistent with the 70 percent rating criteria, and the Veteran’s symptoms are found to have caused occupational and social impairment in most of the areas. He has difficulty establishing and maintaining work and social relationships, as evidenced by his limited familial relationship, self-isolation at home, and reported difficulties at work. Thus, resolving any reasonable doubt in favor of the Veteran, a 70 percent evaluation is warranted. At the January 2021 hearing before the Board, the Veteran’s representative requested that the Board award a 70 percent rating for PTSD and confirmed that that rating would satisfy the Veteran’s appeal. Therefore, as this decision grants a 70 percent rating, it represents a full grant of the benefit sought on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (noting that while an appellant is presumed to be seeking the maximum benefit under the law, the appellant can choose to limit the appeal to a lesser benefit). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals J. Morgan Department of Veterans Affairs 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.