Citation Nr: 21010930 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-04 543 DATE: February 26, 2021 ORDER Entitlement to an initial evaluation of 70 percent, for the period prior to May 28, 2016, for post-traumatic stress disorder (PTSD), is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s PTSD symptoms caused occupational and social impairment with deficiencies in most areas for the period prior to May 28, 2016. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for a 70 percent rating, prior to May 28, 2016, for PTSD, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is a Purple Heart recipient with honorable active duty service in the Korean War from June 1950 to June 1953. In March 2018, the Board denied the Veteran’s appeal, in relevant part, for an increased rating for PTSD for the period prior to May 28, 2016. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the parties agreed to a Joint Motion for Partial Remand (JMPR) and the matter was remanded for the Board to comply with the terms of the JMPR. In a May 2019 Board decision, the Board continued to deny the Veteran’s claim for an increased rating for PTSD for the period prior to May 28, 2016. However, the Veteran also appealed this decision to the Court and the parties subsequently agreed to a JMPR. The matter has been returned to the Board for further appellate review. 1. Entitlement to an initial evaluation in excess of 50 percent for PTSD, prior to May 28, 2016. The Veteran’s PTSD has been assigned a 50 percent rating for the period on appeal and has been evaluated under Diagnostic Code 9411 which uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when a veteran’s psychiatric disorder causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent 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 a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The maximum schedular rating of 100 percent 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment; but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). Factual Background A review of the record shows the Veteran received a VA examination for PTSD in February 2013 where he reported being married and divorced twice. He reported the he lives alone and described his family relationship as non-existent. The Veteran further reported having no social relationship, but he enjoys gardening, watching tv, and watching war movies. Occupationally, the Veteran reported that he had several jobs in the judicial system. He became a lawyer in 1990 and retired one year ago. With regard to past mental health treatment, the Veteran reported having his first encounter with a mental health professional in October 2003 due to “not feeling well.” He reported having no history of parasuicidal behavior or psychiatric hospitalizations. The examiner noted symptoms of depressed mood, disturbances of motivation and mood, and suicidal wishes with structured plan and method, by gunshot. The examiner noted that the Veteran owns a gun and has symptoms of irritability, socially withdrawn, loneliness, and lack of motivation. The examiner diagnosed the Veteran with depressive disorder, NOS, and found that his symptoms cause occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In his May 2015 PTSD examination, the Veteran again reported being divorced twice and having two daughters. He reported that he lives alone, social support is poor, and his family relations were described as distant. The Veteran reported that he worked as an economist for three years; he worked in the Puerto Rico Supreme Court as a sub-secretary for about 21 years; and he retired in 1981 from government and set up a law practice. He retired from law practice in 2014. The examiner noted symptoms of feeling sad, depressed, loss of interest in activities, loss of appetite, crying spells, weight loss, trouble sleeping, poor concentration, and feelings of worthlessness and guilt. The examiner diagnosed the Veteran with unspecified depressive disorder and found that his symptoms cause occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Analysis After considering the above and remaining evidence, the Board finds a 70 percent rating, but no higher, is warranted. As noted above, the February 2013 and May 2015 VA examiners found that the Veteran’s symptoms cause occupational and social impairment with an occasional decrease in work efficiency and mild or transient symptoms which is indicative of mild to moderate impairment. There is evidence of record to support this finding. For example, in his February 2013 PTSD examination, the Veteran reported having no past mental health treatment except for in October 2003 due to “not feeling well.” The Board notes, however, that this isolated incident of treatment was unrelated to the Veteran’s military service as he explained further in his February 2015 PTSD examination that he became depressed in 2003 after his fiancé broke off their engagement. In addition, the Veteran reported having several jobs in the judicial system, including becoming a lawyer, and there is no indication from the record that his psychiatric disorder caused any occupational impairment throughout his career. In fact, in his May 2015 PTSD examination, he reported that he stopped practicing law due to his disappointment with the judicial system, and that he continues to work as a notary. A September 2016 VA treatment record shows that the Veteran worked as a notary until January 2016. Moreover, although the Veteran reported having no social relationships and distant family relations, records show that the Veteran was fairly active in his community as a December 2012 VA treatment note shows that the community was holding a holiday celebration at his home; and, in his February 2015 PTSD examination, he reported that he maintains ties with his community and reported an upcoming gathering in his home with his neighbors. Conversely, the record shows that in November 2012, the Veteran was referred for mental health evaluation by his primary care physician after he complained of PTSD symptoms of difficulty falling asleep or staying asleep; being easily startled, nightmares, avoidance of crowds, and irritability. In his December 2012 initial VA psychotherapy evaluation, the examiner noted the Veteran presented with symptoms of depression, crying spells, feelings of guilt, sleep disturbances, social isolation, and varying enjoyment of activities. The examiner also noted that, while the Veteran has been able to manage stressors and life’s demands generally well with a degree of success, he is holding onto feelings of guilt regarding combat experiences he has not processed. The examiner explained that these unresolved memories and emotions have prompted mixed feelings of pride and resentment about his military career, and the Veteran appears to have had interpersonal conflicts for various years which has caused social isolation leaving him feeling lonely and worthless at times. It was also noted that the Veteran had past death wishes where he drank a third bottle of brandy, but he vomited and fell asleep. In an October 2013 written correspondence, the Veteran reported having nightmares and flashbacks of the war. He reported that he wakes in the middle of the night sweating, and that he is constantly jumping due to the noises around him and very nervous around people. In his May 2015 PTSD examination, the examiner noted symptoms of feeling sad, depressed, loss of interest in activities, loss of appetite, crying spells, weight loss, trouble sleeping, poor concentration, and feelings of worthlessness and guilt. The record also shows a December 2015 emergency room visit where the Veteran presented to the emergency room for chest pains, but he was admitted for depression. He reported stressors of feeling lonely and stated that his physical conditions cause severe pain. He further reported that loneliness causes physical pain and stated that he would rather be dead than to endure pain alone at home. The Veteran’s depression screen was noted as severe, and he was identified as a high risk for suicide. Given the above findings, the Board concludes the evidence is in equipoise as to whether the Veteran’s symptoms more nearly approximated the criteria for a 50 percent rating or a 70 percent rating. Although the evidence shows that the Veteran had no occupational impairments throughout his employment; no mental health treatment prior to 2012, and that he maintained a fairly active social life with his community, the evidence also shows that beginning in 2012 and thereafter, the Veteran began exhibiting PTSD symptoms of depression, sadness, loneliness, social isolation, guilt, feelings of worthlessness, hopelessness, and occasional suicidal ideation. Therefore, as the evidence is in equipoise, the Board resolves all doubt in favor of the Veteran and finds that a 70 percent rating, but no higher, is warranted for the period prior to May 28, 2016. A higher rating is not warranted because the Veteran did not exhibit most of the listed criteria for a 100 percent rating, and his symptoms did not equate in severity, duration or frequency to total social and occupational impairment for this period. Although the Veteran reported suicidal ideation, the Board finds that his assigned 70 percent rating compensates him for these symptoms and that these symptoms in conjunction with his other symptoms did not equate in severity, frequency, or duration to total social and occupational impairment for this period. With regard to his suicidal ideation symptoms, the Board notes that in his February 2013 PTSD examination, the examiner found that the Veteran had suicidal wishes with a plan and method by gunshot; however, the examiner did not find that the Veteran was at risk of suicide and further found that his symptoms were no more than moderate in severity. This finding is consistent with a February 2013 VA psychiatric evaluation for admission to the Day Hospital program when the Veteran reported increased depression and irritability due to loneliness and retirement from work. He also reported on/off thoughts of death; however, the examiner noted that these thoughts have not deteriorated into suicidal intention as the Veteran identified the presence of hope and love for his daughters as a strong deterrence against suicide. Similarly, in his May 2015 PTSD examination, the Veteran denied suicidal/homicidal ideation citing his children, faith, and understanding of consequences as primary deterrents. Moreover, although the Veteran was admitted for depression in December 2015 and was identified as a high risk for suicide, he denied any suicidal/homicidal ideations and was discharged home after two days to continue in the Day Hospital program. As for his overall disability symptom picture, both VA examiners found that the Veteran exhibited no more than moderate impairment. The record shows the Veteran maintained gainful employment with no significant occupational impairments; he enjoyed leisure activities that included gardening, watching tv, and watching war movies; and he was active in his community. In the Veteran’s February 2013 PTSD examination the examiner found that the Veteran did not meet the criteria for PTSD since he did not persistently re-experience his traumatic event from service; he had no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness, nor did he have persistent symptoms of increased arousal. Again, as stated previously, while the Veteran’s suicidal statements and ideations are significant for this period, however, these symptoms, in conjunction with his other symptoms did not meet the listed criteria for a total rating and, as explained above, do not equate to total occupational and social impairment. For the foregoing reasons, the Board concludes a 70 percent rating, but no higher, is granted, for the period prior to May 28, 2016, for service-connected PTSD. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.