Citation Nr: 21012048 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-17 401 DATE: March 3, 2021 ORDER Prior to August 9, 2017, (July 21, 2015), a 70 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder and residuals, traumatic brain injury, prior to August 9, 2017 is granted. A rating higher than 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder and residuals, traumatic brain injury is denied. FINDINGS OF FACT 1. For the rating period prior to August 9, 2017, PTSD with major depressive disorder and residuals, traumatic brain injury more nearly approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. 2. PTSD with major depressive disorder and residuals, traumatic brain injury more nearly approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. CONCLUSIONS OF LAW 1. For the rating period prior to August 9, 2017, the criteria for a rating of 70 percent for PTSD with major depressive disorder and residuals, traumatic brain injury, but no higher, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1998 to August 2001, from May 2003 to April 2004, and from January 2005 to July 2006. The Board remanded this appeal in May 2020 to allow the Agency of Original Jurisdiction (AOJ) the opportunity to obtain private psychiatric treatment records. A review of the record shows that the AOJ requested the Veteran complete a VA Form 21-4142 twice, and that private psychiatric treatment records were associated with the claims file. The Board’s prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings The Veteran seeks higher ratings for posttraumatic stress disorder (PTSD) with major depressive disorder and residuals, traumatic brain injury. The Veteran’s psychiatric disorders are currently rated as 50 percent disabling from July 21, 2015, the date he filed the instant increased rating claim, to August 9, 2017. He was in receipt of a temporary 100 percent rating from August 9, 2017 to July 1, 2018 pursuant to 38 C.F.R. § 4.29 due to in-patient psychiatric treatment at a VA Psychosocial Residential Rehabilitation Treatment Program. His psychiatric disorders are thereafter rated as 70 percent disabling effective July 1, 2018. The temporary 100 percent evaluation is not at issue in this appeal and will not be disturbed by this decision. Thus, we have recharacterized the issues on appeal as entitlement to a rating in excess of 50 percent prior to August 9, 2017, and entitlement to a rating in excess of 70 percent from July 1, 2018. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Code 9411 pertains specifically to PTSD. Except for eating disorders, all mental disorders including PTSD are rated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 evaluation 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; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating requires 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); or inability to establish and maintain effective relationships. Id. A 100 percent rating requires 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; or memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon 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. 38 C.F.R. § 4.126. If there is a question as to which evaluation to apply to the Veteran's disability, 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. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, as the Court pointed out, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Additionally, “[a] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Rating prior to August 9, 2017 (July 21, 2015). The Veteran’s PTSD with major depressive disorder and residuals, traumatic brain injury, is rated as 50 percent disabling prior to August 9, 2017. He seeks a higher evaluation. Upon review of the evidence, the Board finds that the Veteran’s symptoms warrant a 70 percent rating prior to August 9, 2017. However, the preponderance of the evidence is against finding that the criteria for a 100 percent rating are met during this period. The Veteran was provided a VA psychiatric examination in October 2015. The Veteran reported that his first marriage had ended due to his mood swings and that he had been married ot his current wife for four years. He was highly withdrawn and was unable to identify friends or coworkers with whom he socializes. He denied any hobbies, reported working swing shifts, and that he sleeps when he was not working. Behavioral observations show the Veteran’s grooming and hygiene were adequate. Speech was logical and goal oriented, but obvious for hesitancy and work finding difficulties. Recent and remote memories were impaired. Sustained attention and concentration were impaired. His judgment was intact, and there was no evidence of delusions or hallucinations. The Veteran denied homicidal or suicidal ideation. Active symptoms were listed as depressed mood, anxiety, suspiciousness, mild memory loss, impairment of short- and long-term memory, disturbances of mood and motivation, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances including work or a work like setting. The examiner determined the Veteran’s psychiatric disorders caused 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, coinciding with a 10 percent rating under the General Rating Formula. He was also provided a VA examination for traumatic brain injuries (TBI) in November 2015. The Veteran reported irritability, short-term memory problems and frequent forgetfulness, difficulty concentrating, and that it takes 5 to 6 seconds to process information. Sleep was altered and he reported anxiety attacks and social isolation with no real friends and relationship problems. The examiner attributed these problems to the Veterans’ TBI and noted that these symptoms interfere with the Veteran’s daily functioning such that he is not confident in pursuing a career, making friends, or building relationships. In a November 2015 statement, the Veteran reported ongoing and worsening anger and irritability, severe anxiety, depression, nightmares, and memory loss. Multiple lay statements received from the Veteran’s family members in November 2015 note the Veteran was irritable, depressed, had nightmares, and is unsocial. VA treatment records show the Veteran reported depression and severe anxiety with intrusive thoughts, irritability, memory impairment, and passive suicidal ideation in December 2015. The psychiatrist noted no delusions but that the Veteran’s insight was poor to fair due to his symptoms and that the dominant symptoms included severe irritability limited to verbal conflicts. He reported compulsive behavior and that he must have well laid out plans for things he has no control over, and that he constantly worries. In May 2016 he continued to report passive suicidal ideation, irritability with verbal outbursts, low motivation, decreased concentration, nightmares, and hypervigilance. He denied aggressive thoughts, risk for physical confrontation was low, and he did not have any plan and/or intent to harm himself. In a statement accompanying the June 2016 Notice of Disagreement, the Veteran stated that he has no friends, that his memory problems caused trouble at work, and that he cannot retain new information. He also reported that he showers once per week and rarely brushed his teeth. He also reported suicidal thoughts crossed his mind from time to time without attempts, that he was depressed much of the time, and that he had panic attacks. He also fought with his wife over minor issues. A statement from his wife states that she had to push the Veteran to take care of himself, that he showered and brushed his teeth ever 7 to 10 days, and that he did not take his medicine. She also noted the Veteran had spoken of suicide on occasion, that he does not socialize, is depressed and has high anxiety and panic attacks, and is rude and inappropriate to others. In the March 2017 VA Form 9 the Veteran reported suicidal ideation, depression that prevents him from working and interacting with his family, that he struggles with interacting appropriately in social environments, that he could not build relationships on his own, and had difficulties maintaining his physical appearance. May 2017 VA treatment records show the Veteran reported a severe depressive episode with suicidal ideation and plans to overdose approximately one month prior. Depression also led to a decrease in his frequency of activities of daily living, such as showering and brushing his teeth. He began PTSD inpatient treatment at the Batavia VAMC on August 9, 2017. Treatments notes show he reported thoughts of worthlessness and hopelessness, thoughts of being better off dead, and occasionally thoughts of suicide but that he rarely has plans or intent to harm himself. He also reported exaggerated negative beliefs, diminished interest or participation in activities, detachment and estrangement to others, inability to experience positive emotions, irritable behavior, hypervigilance, problems concentrating, and sleep disturbances. Considering the above, we find that the Veteran’s symptoms most closely approximated the level of impairment contemplated by a 70 percent evaluation for the rating period prior to August 9, 2017. Although he denied suicidal ideation at the October 2015 VA examination, he reported suicidal ideation thereafter and at least one of his VA psychiatrists noted suicidal ideation. The Veteran and his family have submitted multiple lay statements detailing the Veteran’s neglect of his personal hygiene. He has had continuous depression throughout the period on appeal and has reported panic attacks. The lay available lay statements also suggest the Veteran has impaired impulse control with occasional inability to interact appropriately with others. The Veteran has reported that he has no friends or hobbies, and that the only people he interacts with are family members. Although he remained employed, he has missed approximately 100 hours of work per year due to his symptoms and has often reported that he makes mistakes at work, has been demoted, and does not interact with coworkers. He has also reported work-related stresses throughout the relevant period and difficulties adjusting. His symptoms have been severe enough affect his activities of daily living. Although the Veteran does not appear to have obsessional rituals, he has reported that he must have plans for any situation out of his control. The severity, frequency, and duration of the Veteran’s psychiatric disorders more closely approximated occupational and social impairment with deficiencies in most areas, and that a 70 percent rating is warranted for the entire period on appeal prior to August 9, 2017. The next question for the Board is whether the Veteran’s disability meets or more nearly approximates the criteria for a 100 percent rating. We find that the criteria for a 100 percent rating were not met or approximated. He has not endorsed total occupational and social impairment, or relevant signs of the 100 percent rating criteria. Moreover, although he was impaired in his occupational capacity, he remained working throughout the relevant period. Neither VA examination nor the treatment record reflects symptoms approximating total occupational or social impairment. There are no reports of gross impairment in thought processes or communication. He has not reported delusions or hallucinations, and his VA psychologists routinely noted no evidence of such. Although the Veteran has reported occasionally inappropriate interactions with others and being rude during conversations, there is no indication his behavior has been grossly inappropriate. He has neglected his hygiene and activities of daily living but has never been found to become unable to perform activities of daily living. Although he has memory problems, they have not risen to the level of severity contemplated by a 100 percent rating, such as forgetting names of close relatives, his own occupation, or his own name. The examinations and treatment records reflect that these manifestations are not present. Mental status examinations in VA treatment records show this level of impairment is not present inasmuch as thought processes or communication are not grossly impaired, there are no delusions or hallucinations, he remains oriented, can perform activities of daily living, and does not have the outlined degree of memory loss. The Veteran an episode of suicidal ideation with a plan to overdose during this period. As noted above, suicidal ideation is one of the criteria of a 70 percent rating, and persistent danger of hurting one’s self is a criteria of a 100 percent rating. However, overall, the Board finds that the Veteran’s symptoms during the period on appeal did not reach the level of impairment required for a 100 percent rating. As noted, suicidal ideation is explicitly contemplated by a 70 percent rating. He regularly denied having any plan or intent to harm himself or others, and his psychiatrists often determined the Veteran posed no threat of harm to himself or others. The Veteran’s one episode described was transitory. Records from the Veteran’s in-patient care show he regularly denied active suicidal or homicidal intent. At all other points during this period, there is little reliable evidence that the Veteran’s suicidal thoughts caused him to be in persistent danger of hurting himself or others. Thus, although the record overall reflects severe impairment, it does show total impairment as required for a 100 percent rating. The criteria for a 100 percent rating under Diagnostic Code 9411 are not met or approximated. The degree of impairment has remained uniform at 70 percent throughout this relevant period 2. Entitlement to a 100 percent rating from July 1, 2018 Upon review of the evidence, the Board finds that the preponderance of the evidence is against finding that the criteria for a 100 percent rating are from July 1, 2018. The Veteran was afforded a VA examination in February 2018. He reported that he does not have any friends, and that in October/November 2017 he had punched holes in the bedroom walls. He was on the verge of divorce due to his anger, suicidal thoughts, and withdrawal. He had been employed for 10 years, reported issues with calling in sick too often, and that he had a safety violation in 2017. He also reported memory and concentration issues. Active symptoms attributed to his psychiatric disorders were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, disturbances of mood and motivation, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work like setting, suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Behavioral observations show the Veteran’s grooming and hygiene were borderline. He was oriented to all spheres and reported fleeting suicidal ideation one time over the past three months. There were no symptoms of a thought disorder or psychosis. The examiner determined the Veteran’s psychiatric disorders caused occupational and social impairment with deficiencies in most areas, coinciding with a 70 percent rating under the General Rating Formula. A May 2018 VA psychiatry note shows the Veteran reported a low frustration tolerance that presents in irritability with his son and wife, and he denied any physically aggressive thoughts and behaviors. He denied current suicidal and homicidal intent and did not exhibit signs of mania or psychosis. No delusional thoughts or behaviors were noted. Insight was fair to poor, with lapses related to low frustration tolerance and verbal conflicts. He was casually dressed and groomed. In September 2018 he reported minimal depression with ongoing anxiety and chronic sleep issues. He also had vivid dreams and hypervigilance in public and reported issues with concentration and that he takes time to process information. He had no significant hopelessness or suicidal and homicidal ideation. He was casually dressed and groomed, there were no delusional thoughts, and insight was fair. He denied suicidal or homicidal ideations in December 2019, but reported his mood continued to be irritable. In January 2020 he reported that he and his wife had temporarily separated and denied thoughts to hurt himself or anybody else. There were no hallucinations or delusions, and insight and judgment were intact. He was assessed as being a low risk of hurting himself or others. In March 2020 he reported that his main concern was anxiety and that he had. He denied thoughts of hurting himself or others but reported a panic attack at work with brief thoughts of futility and passive death wishes. There were no hallucinations, mood was irritable, thought was linear with no cognitive deficit, and insight and judgment are intact. The Veteran has provided relevant private treatment records. In January 2020 he complained of memory issues, anxiety, and depression. He reported that he occasionally forgets things that he is told to do but was able to manage his accounts. Following evaluation, the treating psychiatrist noted the Veteran’s memory seemed normal but referred him for evaluation through speech therapy. He had a private psychiatric evaluation in May 2020. He reported a history of very passive suicidal ideation with none for the past two months. The psychiatrist noted the Veteran was oriented in all spheres and knew the current date. His affect was constricted, and mood was neutral. Associations were tight without loosening, circumstantiality, or tangentiality. Perceptual disturbances were denied. The Veteran did report an unusual experience following an argument with his wife that he described as a “touch by the hand of God moment” and an epiphany, but no delusional system was evident. Memory was reported as bad. He reported suicidal ideation without plan or intent, denied homicidal ideation, and denied any wish to harm himself. Insight and judgment were fully present. In June 2020 he reported flashbacks, irritability, and depressed mood when he was tired and stressed. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms for the currently assigned 70 percent rating. To warrant a 100 percent rating, the Veteran would need to more closely approximate total occupational and social impairment. While the Board notes the Veteran’s reported difficulties with relationships and work, total occupational and social impairment was not shown or approximated. The Veteran has reported memory deficiencies, but the deficiencies were mild in nature and do not approximate the level of memory impairment contemplated by a 100 percent rating, such as forgetting his own name, occupation, or the names of close relatives. At no point did the Veteran or his providers indicate that there was substantial memory loss, such as names of close relatives. In addition, the Veteran has reported working full time during this period. While he has reported missing approximately 100 hours of work per year due to his psychiatric treatments and symptoms and has had difficulties concentrating on his work and working around others, there has not been total occupational impairment. The Board notes that the Veteran has expressed suicidal ideation at times throughout the relevant period. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. Since July 1, 2018, the Veteran has regularly denied current thoughts, intent, or a plan involving self-harm or harming others in existing treatment records. The Veteran does appear to have presented an immediate danger of harming himself in 2017 and has reported a plan, after which he was admitted to a psychiatric in-patient clinic for five weeks and was in receipt of a temporary 100 percent rating until July 1, 2018. Although he has reported suicidal ideation since July 1, 2018, such is explicitly contemplated by the current 70 percent rating. He has regularly denied presenting any danger of hurting others, and most recently his private and VA treatment providers have determined he does not present a danger to himself or others. There is little reliable evidence of a persistent danger to self or others. The February 2018 VA examiner found the Veteran was intermittently unable to perform activities of daily living, including maintenance of minimal personal hygiene, and had impaired impulse control with unprovoked irritability and periods of violence. In addition, the Veteran has provided multiple lay statements and testimony at the February 2020 Board to show total occupational and social impairment. He has reported that he has missed over 1000 hours of work over the past 10 years due to his psychiatric symptoms, and that his symptoms had impacted his job performance and ability to advance in his career. Regarding social impairment, he does not have close friends, is isolated, fights with his wife, and has panic attacks and hypervigilance. He also reported periods of suicidal ideation, almost constant depression, that he is in persistent danger of hurting himself, and that he is generally unable to maintain his personal hygiene. We accept the Veteran has difficulties maintaining his personal hygiene and tending to activities of daily living. However, there is little evidence of record suggesting inability to do so. This is supported by the examiner’s own observation that the Veteran’s grooming and hygiene were borderline, suggesting he was not incapable, and VA psychologists have regularly noted that the Veteran was casually groomed during the period on appeal. To the extent the Veteran reports he is in danger of hurting himself, such statements are broadly inconsistent with his statements made during both private and VA psychiatric treatment sessions and with the conclusions of his mental health providers. He has routinely denied any intent to harm himself or others, and his doctors regularly determine he is at low risk of harming himself. We acknowledge he had suicidal plans in 2017 which led to in-patient VA care for his PTSD. However, he has denied any intent to harm himself at nearly every private or VA psychiatric appointment since. Although the Veteran had an incident of punching holes in a wall, most of the Veteran’s VA and private psychologists have determined he presented no threat of violence to himself or others and the Veteran has otherwise routinely denied any violence. The record also establishes an absence of symptoms such as delusions or hallucinations, gross impairment of thought or communication, or disorientation. In sum, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating from July 1, 2018. The criteria for a 100 percent or higher rating are not met and the benefit sought on appeal must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.