Citation Nr: 21011034 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-20 720 DATE: February 26, 2021 ORDER A 50 percent disability, and no more, for posttraumatic stress disorder (PTSD) prior to March 1, 2017, is granted. A 100 percent disability evaluation for PTSD from March 1, 2017 is granted. FINDINGS OF FACT 1. For the rating period prior to March 1, 2017, the Veteran’s PTSD resulted occupational and social impairment with reduced reliability and productivity; it was not characterized by occupational and social impairment, with deficiencies in most areas, such as judgment, thinking, or mood, due to such symptoms as obsessional rituals which interfered 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. 2. For the time period from March 1, 2017, the Veteran's PTSD has resulted in total and social impairment. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability evaluation, and no more, for PTSD prior to March 1, 2017 were met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.126, 4.130 Diagnostic Code 9411 (2019). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 100 percent disability evaluation from March 1, 2017 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from September 1987 to April 1993. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in March 2020. A transcript of the hearing is of record. The Board remanded this matter for further development in August 2020. The requested development has been completed and the matter is now ready for appellate review. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2019). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The General Formula for Rating Mental Disorders, Diagnostic Code 9411, provides that a 30 percent rating is assigned for 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), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation requires 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned for 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. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent evaluation is assigned for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms cited above follow the phrase "such symptoms as" which indicates 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. Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating. The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. The Board must consider all symptoms of the veteran's condition which affect the level of occupational and social impairment. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002). The Veteran maintains that the symptomatology associated with his service-connected PTSD warrants disability evaluations higher than those which are currently assigned. In conjunction with his claim, the Veteran was afforded a VA examination in December 2014. At that time, diagnoses of PTSD and BPD were rendered. The examiner indicated that the symptomatology for each disorder could be differentiated. The symptoms for the service-connected PTSD included intrusive thoughts and memories about past trauma; nightmares; emotional numbness; and feeling disconnected from others. The examiner stated that the Veteran’s PTSD caused 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. Mental status examination revealed the Veteran was well groomed, alert, and oriented times three. His expressed attitude was friendly. There were no noted deficits in immediate, short-term, and long-term memory observed. The rate, tone, and volume of his speech were all within normal limits. He described his mood as "okay" and his affect was congruent. There was no indication of abnormal perception or auditory/visual hallucinations. His thought content was unremarkable with respect to delusions, persecutory ideation, and ideas of reference. His thought processes were logical and goal-directed. Insight and judgment were good. He denied both suicidal and homicidal ideation, intent, or plan. The examiner indicated that the Veteran’s PTSD caused anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran denied any change in his PTSD symptoms since his last VA exam, yet he endorsed increased severity on many of his PTSD symptoms when administered the Posttraumatic Stress Disorder Checklist for DSM-5 (PCL-5). At the time of a December 2015 mental health consult, the Veteran reported having frequent PTSD nightmares and flashbacks. He also reported irritability, difficulty concentrating, very easy startle response, hypervigilance, nightmares, and difficulty sleeping. While noting having had suicidal ideations in the past (most recently 1 year ago while still in prison), he denied any recent suicidal ideations/plans, or homicidal thoughts or plans. Mental status examination revealed that the Veteran was adequately dressed/groomed; had a moderately blunted and irritable affect; had a moderately anxious disposition; a moderately decreased attention span and concentration; slowness of speech; and seemingly concrete thought process and normal thought content. At the time of a February 10, 2016 visit, the Veteran stated that he was feeling significantly better on Seroquel. He noted that he was sleeping better and was not so angry. His mood was better and he wanted to stay on the medication. He denied any auditory hallucinations or impulsive behaviors. He was still having some racing thoughts and difficulty staying asleep, but denied irritability, tantrums, decreased need for sleep, excessive somnolence, legal issues, or drug or ETOH use. He also denied excessive somnolence, appetite changes, or decreased interest in usual activities. He further denied suicidal or homicidal ideations/plans. At the time of a December 2016 visit, the Veteran stated that he was still feeling well since his last visit. He was still taking Seroquel and indicated he was compliant. He reported that his sleep was overall good and denied difficulty falling asleep or staying asleep. He indicated that he still had occasional racing thoughts, but they did not keep him awake. He had sporadic episodes of irritability, but usually expressed vocally; he denied any physical demonstration of frustration or anger. The Veteran also denied any impulsive behaviors, new legal issues, drug or alcohol use, voices, or delusions. He stated that his appetite had been good, and he had had more energy over the last several months, but good energy; in fact, he had lost about 25 pounds over the last year. He denied any decreased interest in usual activities (hunting, fishing, walking, watching movies) and denied suicidal ideations/plans. In a March 1, 2017, examination report, the Veteran’s treating Vet Center clinician indicated that the Veteran’s PTSD symptoms caused depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure or irrelevant; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of mood and motivation; difficulty in maintaining and establishing effective work and social relationships; difficulty adapting to stressful circumstances, including work or worklike setting; inability to establish and maintain effective relationships; persistent delusions and hallucinations; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In March 2020, the Veteran testified at a Board hearing that he had a history of suicidal ideation and visual and auditory hallucinations. At the time of a September 23, 2020 outpatient visit, the Veteran reported having depressive, anxiety and trauma symptoms secondary to psychosocial stressors, chronic pain and upcoming SC hearing. He denied active suicidal ideation (SI) and was future oriented but endorsed frequent passive SI all the time. He denied plan/intent/preparatory as he had too much to live for. He also endorsed anger/irritability, reporting recent altercation with a "homeless man" secondary to perceived harassment, requiring 3 stitches above his eye. Anxiety remained, endorsing racing thoughts "running 10,000 miles an hour", ruminations and panic attacks, "lying in bed...palpitations, SOB and head pounding", able to decrease with deep breathing and distraction techniques. Sleep was disrupted, averaging 5-6 restless broken hours, with prolonged latency up to 2 hours secondary to anxiety. Trauma symptoms included nightmares, hypervigilance, hyperstartle and intrusive thoughts. He reported auditory hallucinations (AH), "bombs and sirens going off" and visual hallucinations (VH), "shadows" but was able to use reality checks. He denied paranoia. The examiner indicated that the Veteran had depression, frequent passive SI, irritability; anxiety-racing thoughts; ruminations; anxiety attacks; psychosis-AH and VH; PTSD-nightmares, intrusive thoughts, hyperstartle and hypervigilance. At the time of his November 16, 2020 VA examination, which served as the basis for the assignment of the 100 percent disability on that date by the RO, the Veteran’s PTSD was noted to cause total and social and occupational impairment warranting a 100 percent disability evaluation. Time Period Prior to March 1, 2017 For the time period prior to March 1, 2017, the Board will resolve reasonable doubt in favor of the Veteran and find that his PTSD caused occupational and social impairment with reduced reliability and productivity, warranting a 50 percent disability evaluation. After a review of all the evidence, lay and medical, the Board finds that the criteria for a disability evaluation in excess of 50 percent have not been met or nearly approximated at any time prior to March 1, 2017. The Board finds the Veteran's PTSD symptoms and the severity of his symptoms did not more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to include as 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 worklike setting); or inability to establish and maintain effective relationships during this time period, and the criteria for a 70 percent rating are not met. 38 C.F.R. §§ 4.3, 4.7. The Veteran was not shown to have suicidal plans or intentions during this time period. There were no findings or assertions of suicidal or homicidal plans or intentions at the time of the VA examinations or in the numerous VA outpatient treatment records which have been associated with the claims folder. There were no obsessional rituals found which interfered with routine activities. Speech was not found to be intermittently illogical, obscure, or irrelevant at any time during this period, including at the time of any VA examination. While depression has been diagnosed throughout the appeal, it was not found to be near-continuous affecting the ability to function independently, appropriately and effectively. There were no panic attacks noted to be occurring on a near-continuous basis. He was found to be alert and oriented to time, place, and person, and there were no findings of neglect of personal appearance or hygiene. The Board recognizes the Court's holding in Mauerhan, 16 Vet. App. 436. With this in mind, the weight of the lay and medical evidence shows that the Veteran's overall PTSD picture was adequately contemplated by the 50 percent rating. The Veteran did suffer from sleep problems, but this is specifically listed under the criteria for a 30 percent rating, a lower rating than the current 50 percent evaluation. Disturbance of motivation and mood and difficulty in establishing and maintaining relationships are specifically contemplated in the 50 percent rating criteria. The same is true with the Veteran's depression and anxiety, which are both symptoms contemplated under the 30 percent disability rating. A 50 percent disability rating also considers "disturbances of motivation and mood" which would include the Veteran's reported depression and anxiety symptoms. Moreover, the December 2014 VA examiner indicated that the PTSD caused 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, which is the overall specific criteria listed for a 10 percent disability evaluation. Despite the Veteran's contention that his symptoms warranted an evaluation in excess of 50 percent prior to March 1, 2017, the Board finds that the evidence of record does not support this contention. For these reasons, the Board finds that a preponderance of the evidence is against a rating in excess of 50 percent for PTSD prior to March 1, 2017. As the preponderance of the evidence is against a higher rating for this time period, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Time Period From March 1, 2017 For the time period from March 1, 2017, and resolving reasonable doubt in favor of the Veteran, the Board will find that the Veteran’s PTSD has resulted in total and social impairment. At the time of the March 1, 2017 evaluation, the Veteran was found to have numerous symptoms related to his PTSD, including gross impairment in thought processes or communication; persistent delusions and hallucinations; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure or irrelevant; and impaired abstract thinking; The Board finds that these symptoms more closely approximate that for a 100 percent schedular disability evaluation. This is confirmed by the November 2020 VA examiner, who found the Veteran to be totally and socially impaired by his PTSD, with similar symptoms being reported at that time. Resolving reasonable doubt in favor of the Veteran, the criteria for a 100 percent disability from March 1, 2017, have been met. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.