Citation Nr: 21012429 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 09-13 730 DATE: March 4, 2021 ORDER Entitlement to a rating of 100 percent for Post-Traumatic Stress Disorder (PTSD) is granted. FINDING OF FACT PTSD has been manifested by occupational and social impairment with deficiencies. There have been elements of danger to self and others and memory impairment. It has been manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating of 100 percent for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1–4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to November 1969. The Appellant claims as the surviving spouse and VA has recognized her as a substitute claimant, per a September 2018 Memorandum. In May 2019, the Board denied a rating in excess of 50 percent for PTSD. In March 2020, the United States Court of Appeals for Veterans Claims (CAVC or the Court) granted a motion vacating that decision pursuant to a Joint Motion for Partial Remand (JMPR). The JMPR states the Board failed to address evidence (treatment records) suggesting both occupational and social impairment, that the Veteran had problems with his marriage and issues with people, had suicidal ideation, had possible delusions and unusual thinking, and had hospitalization following flashbacks. The Veteran also thought his neighbor was trying to kill him and had fired warning shots from a gun into the air, wore fatigues, lined up his guns on the table, and wear sunglasses and earplugs to block out neighbors. In May 2019 the Board remanded a separate claim for TDIU for extraschedular consideration which the Regional Office denied in February 2021. The Court found itself without jurisdiction over TDIU. Therefore, TDIU is not addressed here. Ratings Principles 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. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the 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. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. PTSD The Veteran sought an increased rating for PTSD in July 2008. The Veteran is currently rated at 50 percent disabling for PTSD from the time he submitted a claim for an increased rating in July 2008 until his death in September 2010. The Board notes that any psychiatric disorder is rated under the General Rating Formula for Mental Disorders, and the criteria under this formula shall be considered no matter what diagnostic code is assigned. Here, because the diagnostic code contemplates the Veteran’s diagnosis of PTSD and his psychiatric symptoms, the Board concludes that the Veteran is appropriately rated under that code. The General Rating Formula for Mental Disorders provides that mental disorders are to be rated under 38 C.F.R. § 4.130 as follows: A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. 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. 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, 442 (2002). The Veteran sought an increased rating for his service-connected PTSD in July 2008, arguing that his PTSD had increased in severity. Specifically, he asserted that he experienced worsening anxiety, agitation, restlessness, panic attacks, guilt, short-term memory loss, insomnia, and a decrease in activity and talking. An August 2008 private treatment record noted passive suicidal ideation. The Veteran had sleep difficulty, anxiety, nightmares, crying spells, irritability, and was becoming paranoid and, according to his wife, confrontational. On a September 2008 VA examination report (date of the examination was in August 2008), the Veteran reported that his mood fluctuated between elevated and depressed. He could be argumentative, confrontational, paranoid, and isolated himself. He also had episodes of confusion, low energy, and poor grooming and hygiene. The Veteran and his wife reported that his sleep had been very disrupted for some months. He reported feeling estranged from others. The wife stated that he had been jealous and had accused her of having interest in other men. In addition, the Veteran had been patrolling his property, looking for signs of intruders and booby traps. He believed people had intentions to harm him in some way. The Veteran reported starting a task and not finishing it. He had some thoughts of dying but no active suicidal ideation. He had intrusive memories of his events and experiences in Vietnam. He avoided stimuli that could remind him of this, such as watching the news. The examiner opined that the Veteran had sleep disruption, significant anger management deficits, difficulty concentrating, memory deficits, and exaggerated startle response. The frequency and manifestation of his symptoms varied with his mood. Over the last several months, his symptoms had increased significantly. The Veteran underwent a VA neuropsychological evaluation in December 2008, with a letter explaining the results dated in January 2009. Results suggested that he was an individual of average intellectual ability who was experiencing mild decline in the areas of mental processing speed. He demonstrated a pattern of memory impairment which is common in psychiatric conditions. Executive function skills were also significantly impaired. It appeared that the psychiatric difficulties were at least contributing to his problems. The Veteran reported he grabbed a supervisor at work and became angry following a loud noise. The Veteran was unable to work and an inability to work might be possible. It was recommended the Veteran should not return to work at that time and the notetaker was unable to state when his return to work might be possible. A July 2009 VA discharge summary states that, in June 2009, the Veteran was taken to the hospital by state police after he called them and reported being in danger. He shot a gun in the air because he believed the neighbor was shooting at him. His neighbor had shot a gun to kill a groundhog the previous week. Since that episode the Veteran was very paranoid and afraid for the lives of his wife and dog. He wore earplugs to keep out noise from neighbors, and worse sunglasses so neighbors could not see him. The Veteran had a progressive personality change, paranoid behavior, memory loss, problems concentrating, mind racing, depression, easily fearful, and crying spells. He was more confused during the day. He was hospitalized for a week and discharged with prescriptions of Seroquel and Celexa. (This event is described several different times in treatment records. See, e.g., October 2008 social worker note, October 2009 psychology note, July 2009 discharge summary note). On a June 2009 statement, the Veteran reported trouble with long and short-term relationships. An August 2009 VA psychiatry note indicated that the Veteran had one angry outburst a week ago, but he was able to control himself. His mood was better, but his affect was constricted. A September 2009 VA psychiatry note indicates that the Veteran reported having episodic frustration and anger. Being more dependent on his wife frustrated him and led to irritability. His mood was okay with affect constricted. During a September 2009 VA consultation, the Veteran’s wife explained that the Veteran became very depressed in the summer of 2008. He was aggressive and paranoid. Since his hospitalization, his medications had helped curb his symptoms. However, he was still prone to arguments, and was more confrontational and irritable than he had ever been. He also had cognitive problems that abruptly began a year ago. He reported having poor short-term memory. He would forget to turn running water off, leave a burner on, and left his car door open. He continued to drive, but only on familiar routes and within a 10-mile radius. He reportedly patrolled the property as if patrolling a combat area. He had recently stopped working due to inefficiency with tasks. An October 2009 letter from a doctor with a physician service organization states the Veteran is confused and forgetful, including turning on the stove for no reason, and it is dangerous to leave him alone. He had decline in self-care and is unable to seek gainful employment. His wife provides care and transports him to his medical appointments. A November 2009 VA consultation report noted agitation, paranoia, poor memory, episodic confusion, memory loss, and mental status change. On a November 2009, Statement in Support of Claim, the Veteran’s marriage was described as pure hell, with extensive verbal abuse. On a separate statement the same month, the Veteran reported constant feelings of death. A December 2009 social work evaluation, the Veteran reported that over the past year and a half he had experienced an increase in crying spells, insomnia that lasted days, and waking to combat-related nightmares with sweating and thrashing. He avoided going out, and had not hunted, fished, or gone bowling over the past 1 to 3 years. He felt easily agitated and confused. He presented with a depressed mood and affect, and the examiner opined that his disordered sleep and hypervigilance were a result of the Veteran’s efforts to avoid his traumatic stressors. A January 2010 psychiatry note indicated some degree of depression in the form of lack of motivation, sadness, and apathy. He admitted to paranoia on and off. The psychiatrist increased his dose of Seroquel. Treatment records dated between February 2010 and August 2010 reflect that the Veteran was doing well. His mood had improved with the increased medication. There was some degree of apathy, diminished motivation, and impaired decision-making skills, but the paranoia had resolved. An October 2010 psychology report noted the Veteran experienced unusual perceptual or sensory events as well as unusual ideas that may include magical thinking or delusional belief. Based on the above, a 100 percent rating is warranted. As noted by the JMPR, the Veteran was reported to have passive suicidal ideation. As reported by the Court in Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017), suicidal ideation involved a range from a passive wish to transient but recurrent thoughts of committing suicide, to a specific plan. Here, there are reports of passive suicidal ideation. The Veteran had significant social impairment. The Veteran reported the frequency and manifestation of his symptoms varied with his mood and, based records, worsened after hospitalization only to improve briefly before his death. His symptoms included worsening anxiety, agitation, restlessness, panic attacks, guilt, insomnia, and a decrease in activity and talking. The Veteran had sleep disruption (insomnia that lasted days), crying spells, and waking to combat-related nightmares sweating and thrashing. He avoided going out, and had not hunted, fished, or gone bowling for years. The Veteran had near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. He was repeatedly noted to be depressed, argumentative, confrontational, paranoid, and isolating. There was some degree of apathy, diminished motivation, and impaired decision-making skills. The Veteran had impaired impulse control (such as unprovoked irritability with periods of violence); influenced by extreme paranoia. The Veteran was very paranoid and afraid for the lives of his wife and dog. He had fired near and threatened a neighbor with a gun at least once, leading to hospitalization. He had significant anger management deficit. The Veteran reported he grabbed a supervisor at work and became angry following a loud noise. In June 2009, the Veteran was taken to the hospital by state police after he called them and reported being in danger. He shot a gun in the air because he believed the neighbor was shooting at him. After that event, the Veteran had worsening symptoms, including increased paranoid behavior, memory loss, problems concentrating, mind racing, depression, easily fearful, and crying spells. This caused him to be hospitalized. The Veteran had angry outbursts. The Veteran reported having episodic frustration and anger. Being dependent on his wife frustrated him and led to irritability. He was prone to arguments and was more confrontational and irritable. He had spatial disorientation and neglect of personal appearance and hygiene at times. He also had episodes of confusion, low energy, and poor grooming and hygiene. He also had short-term memory loss. He demonstrated a pattern of memory impairment. He had executive function skills were also significantly impaired. He was more confused during the day. He also had cognitive problems. He would forget to turn running water off, leave a burner on, and left his car door open. He continued to drive, but only on familiar routes and within a 10-mile radius. He experienced unusual perceptual or sensory events as well as unusual ideas that may include magical thinking or delusional belief. He felt easily agitated and confused. The Veteran had inability to establish and maintain effective relationships, including having extreme difficulty with his wife, including jealousy and verbal abuse. He reported feeling estranged from others. He believed people had intentions to harm him in some way. In addition, he engaged in obsessional rituals which interfere with routine activities, The Veteran had been reported repeatedly patrolling his property, looking for signs of intruders and booby traps. His anger has been detrimental to social life, having no friends, having poor relationships with neighbors and his wife, and having altercations and arguments with coworkers. The Veteran repeatedly reported isolating himself and had issues with his neighbor, to the point where he was hospitalized after firing a gun near the neighbor. His only relationship was with his wife, which was not described as a happy relationship. The Veteran had social impairment to the extent that he had no friends or social contacts and is otherwise isolated from others due to PTSD symptoms. He had occupational impairment caused by a difficulty in adapting to stressful circumstances (including work or a work-like setting). He had intrusive memories of his events and experiences in Vietnam. He avoided stimuli that could remind him of this. The Veteran reported starting tasks and not finishing them. In a response of stressful event – hearing his neighbor fire at a wild animal on the neighbor’s property – the Veteran started to wear earplugs to keep out noise from the neighbors, and worse sunglasses so neighbors could not see him and fired a gun into the air. It the opinion of several treating medical personal that his functional impacts (mainly memory problems) from his psychiatric disorder that the Veteran would not be able to work for at least some periods on appeal and was recommended that he not attempt to work. He had disordered sleep and hypervigilance were a result of the Veteran’s efforts to avoid his traumatic stressors. Therefore, the Veteran's PTSD would cause occupational impairment reflected by a 100 percent rating. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.