Citation Nr: 21011129 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-32 502 DATE: March 1, 2021 ORDER Entitlement to an increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) from July 23, 2015 to October 31, 2019 is granted. Entitlement to an increased rating greater than 70 percent for PTSD from November 1, 2019 is denied. FINDING OF FACT During the entire appeal period, the Veteran’s PTSD was manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The Veteran’s PTSD was not manifested by symptoms resulting in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 70 percent, but no higher, for PTSD from July 23, 2015 to October 31, 2019 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for an increased disability rating greater than 70 percent for PTSD from November 1, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1969 to December 1984. He appealed a September 2012 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to a rating greater than 30 percent for PTSD. In May 2017, the AOJ increased the Veteran’s PTSD rating to 50 percent, effective July 23, 2015. A Board of Veterans’ Appeals (Board) hearing was held in September 2018. A transcript is of record. During the Board hearing, the Veteran withdrew the issue of entitlement to an increased rating for PTSD prior to July 23, 2015 and this issue was subsequently dismissed in the May 2019 Board decision. The May 2019 Board decision also remanded the issue of entitlement to an increased rating from July 23, 2015 for further development. Subsequent to this development, the AOJ increased the Veteran’s PTSD rating to 70 percent, effective November 1, 2019, the date of a VA examination, and granted entitlement to a total disability rating based on individual unemployability (TDIU) effective July 23, 2015. See September 2020 rating decision. Thus, only the issue of entitlement to an increased rating for PTSD from July 23, 2015 is back before the Board. As a preliminary matter, pertinent evidence was added to the Veteran’s file after recertification to the Board and the Veteran has waived initial AOJ consideration of this new, pertinent evidence in accordance with 38 C.F.R. § 20.1305(c). See February 2021 correspondence. Thus, the Board can proceed with adjudication. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran contends his service-connected PTSD is more severe than his 50 percent rating from July 23, 2015 to October 31, 2019, and 70 percent thereafter would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent rating is warranted for 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, and difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted 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. Id. A 100 percent rating is warranted 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 name. Id. When evaluating a mental disorder, the rating agency shall assign an evaluation 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. 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 solely on the basis of social impairment. See 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). At the Veteran’s first VA examination of the appeal period, the January 2017 VA examiner found the Veteran had symptoms of depression, anxiety, and chronic sleep impairment. In November 2019, a VA examiner found the Veteran exhibited the same symptoms but also had suspiciousness, panic attacks weekly or less, disturbances of motivation and mood, and difficulty adapting to stressful circumstances and establishing and maintaining relationships. In December 2020, a VA examiner noted the Veteran’s PTSD symptoms increased to include irritable behavior with angry outbursts, near-continuous panic or depression affecting the ability to function, flattened affect, and the intermittent inability to perform activities of daily living (ADLs). After a review of the entire medical and lay evidence of record, in conjunction with the findings of the three VA examinations, all discussed in detail below, the Board finds the Veteran’s psychiatric symptoms warrant a 70 percent disability rating, but no higher, throughout the entire appeal period. Socially, the Veteran reported he was in his third marriage, lived with his wife during the appeal period, and had three grown children. See January 2017 VA examination report. While the Veteran reported his wife supported him, he noted theirs was a negative marital relationship because he was isolative, “[wanted] to stay home all the time,” and shared no mutual interest in activities. See, e.g., October 2017 VA treatment records (“has been unable to leave his house. He has only gone out for doctor appointments.”); November 2019 and December 2020 VA examination reports. The Veteran reported having only one close friend and did not socialize. See September 2018 Board hearing transcript at 13; November 2019 VA examination report (“one close friend, but no longer interacts with him because Veteran does not want to leave his home.”). He did, however, report a close relationship with his three children and grandchildren. See August 2017 VA treatment records. Thus, although the Veteran’s PTSD symptoms make it difficult to establish and maintain relationships, the record does not reflect he is unable to do so. Additionally, the record reflects the Veteran suffers from anxiety and depression that affect independent, appropriate, or effective function and cause difficulty adapting to stressful circumstances. For example, the record reflects the Veteran had regular panic attacks during the appeal period. See July 2015 VA treatment records (panic attack “when he tried to go out to breakfast with his wife”); February 2016 VA treatment records; September 2018 Board hearing transcript at 16 (“panic and anxiety attacks occur many times weekly”). In October 2015, VA treatment records reflect the Veteran left his scheduled VA appointment while in the waiting room due to anxiety. In November 2015, the Veteran stated he “was unable to go to daughter’s house for Thanksgiving because he did not feel able to cope” and his physician found him “highly anxious [and] easily irritated with mood swings.” See November 2015 VA treatment records. In March 2016, the Veteran reported his mood was “a lot better” at home and whenever he left his house, to go to the grocery store for example, he “usually panics.” See March 2016 VA treatment records. Indeed, the Veteran reported an altercation “when someone cut in front of him in line” because he was already anxious from being “forced to leave the house.” See April 2016 VA treatment records. Thus, the record reflects the Veteran’s level of anxiety is to the severity and duration that he actively isolates himself in his home to avoid regular panic attacks. Thus, the Board finds the Veteran’s PTSD symptoms affect independent, appropriate, or effective function and cause difficulty adapting to stressful circumstances. The Veteran reported and the medical records reflect he had impaired impulse control during the entire appeal period; however, the record does not reflect his general behavior was grossly inappropriate. See December 2015 VA treatment records (“more angry…some road rage”); February 2016 VA treatment records (“easily upset by others, easily angered”); April 2016 VA treatment records; June 2016 VA treatment records (“agitated easily in public ‘for no apparent reason’ almost daily”). For example, the Veteran noted a history of “road rage” and recalled an incident that resulted in a car accident and the Veteran having a panic attack. See February 2016 VA treatment records. Despite these incidents of impaired impulse control, the Veteran’s physician noted the Veteran “used good judgment” and was in “good control.” Id.; see also December 2015 VA treatment records. Further, the record does not reflect any physical violence or relevant legal issues during the appeal period. See, e.g., November 2019 VA examination report. Additionally, the record reflects the Veteran reported memory loss that waxed and waned in severity. See February 2016 VA treatment records (“memory problems are his biggest concern…he turned on [the] sink tap, then walked away and forgot it was running.”). For example, March 2016 VA treatment records reflect the Veteran was “very forgetful [and could not] recall the names of people he knows well.” In December 2016, a physician found the Veteran’s memory, insight, and judgment grossly intact and the Veteran reported no problems with his memory. See December 2016 VA treatment records. Overall, the record reflects the Veteran has impaired short and long-term memory, but his impairment is not to the severity that he forgets his own name. See, e.g., November 2019 VA examination report (short-term memory deficits); July 2020 VA examination report. At times, the Veteran also expressed passive suicidal and homicidal ideation, but consistently denied any intent or plan. See, e.g., December 2016 VA treatment records (“Veteran denies SI/HI, reports at times he ‘just wants to shake someone, choke them,’ but no plan and are non-specific thoughts”); October 2018 VA treatment records (passive suicidal ideation); November 2019 VA examination report (“denied overt suicidal behaviors or serious suicidal ideation”). More frequently, the Veteran denied any suicidal or homicidal ideation. See, e.g., January 2017 VA examination report; September 2018 VA treatment records. Importantly, VA examiners and the Veteran’s numerous physicians have not found the Veteran a persistent danger to himself or others. Further, the record reflects the Veteran had no gross impairment in thought or communication, was properly oriented during the entire appeal period, and denied suffering from any delusions or hallucinations. See, e.g., December 2020 VA examination report. Finally, while the December 2020 VA examiner checked the box that the Veteran had the intermittent inability to perform ADLs, the Board finds this is not reflected in the record or the VA examination itself. The Veteran arrived at the December 2020 VA examination on time, he was casually dressed, and the VA examiner found the Veteran “capable of managing his financial affairs.” In January 2017, a VA examiner noted the Veteran was “able to maintain ADLs, including personal hygiene.” Additionally, VA treatment records reflect the Veteran has “good grooming and hygiene” during the entire appeal period. See, e.g., July 2015, June 2016, February 2017, and June 2018 VA treatment records. As such, the record does not reflect the Veteran’s inability to perform ADLs rises to the frequency, severity, or duration required to satisfy the rating criteria for total social and occupational impairment. In summation, the Veteran’s psychiatric symptoms render it difficult for him to establish and maintain effective relationships. He noted suicidal and homicidal ideation with impaired impulse control during the appeal period, but not to the extend he was a persistent danger to himself or others. He also does not have grossly inappropriate behavior or complain of delusions or hallucinations during the appeal period. He is properly oriented and does not exhibit gross impairment in thought or communication. Finally, the Veteran’s memory loss is not so severe he cannot remember his own name or hardwired information, and he retains the ability to perform ADLs, including maintenance of minimal personal hygiene. Thus, while the Veteran’s symptoms are undoubtedly severe, they do not rise to the rating criteria for total social and occupational impairment, the next highest rating. As such, the Board grants entitlement to an increased rating of 70 percent, but no higher, for PTSD from July 23, 2015 to October 31, 2019 and denies a rating greater than 70 percent from November 1, 2019. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.