Citation Nr: 21014510 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-12 105 DATE: March 12, 2021 ORDER Service connection for obstructive sleep apnea is granted. Entitlement to an increased rating in excess of 70 percent disabling for service-connected posttraumatic stress disorder (PTSD) and psychotic disorder prior to September 1, 2015 is denied Entitlement to an increased 70 percent disability rating, and no higher, for service-connected PTSD and psychotic disorder prior to February 19, 2017 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Diagnosed obstructive sleep apnea was incurred in or caused by active service. 2. Prior to September 1, 2015, service-connected PTSD and psychotic disorder manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to such symptoms of depression, auditory and visual hallucinations, chronic sleep impairment, flattened affect, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work and a work-like setting. 3. Prior to February 19, 2017, service-connected PTSD and psychotic disorder manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to such symptoms of depression, panic attacks, chronic sleep impairment, depressed affect, suicidal ideation, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work and a work-like setting. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for an increased rating in excess of 70 percent disabling for service-connected PTSD and psychotic disorder prior to September 1, 2015 have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2019). 3. The criteria for an increased rating of 70 percent disabling, and no higher, for service-connected PTSD and psychotic disorder prior to February 19, 2017 have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Army from June 2009 to July 2014. This matter comes before the Board of Veterans’ Appeals (Board) from a October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). Subsequently, the Veteran was assigned a 100 percent rating for his psychiatric disorder as of February 2017. The Veteran was scheduled for a May 2019 videoconference hearing but did not show. As the record does not contain any additional requests for a Board hearing, the Board deems the Veteran’s request for a hearing to be withdrawn. See 38 C.F.R. § 20.704 (d) (2019). While the Veteran formally filed for entitlement to a TDIU in November 2015, the Board finds the claim has been informally raised in the record as part and parcel of the perfected appeal for entitlement to an increased rating for service-connected PTSD and psychotic disorder. Thus, the issue of entitlement to a TDIU is properly before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran is already in receipt of special monthly compensation (SMC) under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of creative organ as of July 12, 2014, the day after service separation. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114 (s), (l), (k); 38 C.F.R. § 3.350 (a), (b), (i). As such, the Board will not infer the issue of further entitlement to SMC at this time. 1. Service connection for obstructive sleep apnea Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service treatment records include a July 2012 note which shows the Veteran reported having sleep issues. In September 2012, the Veteran reported poor sleep and was recommended to talk to his primary care physician about a possible referral for a sleep study. The Veteran indicated that he sleeps about three to four hours a night and that he tended to wake up throughout his hours of sleep. An October 2012 treatment note also shows issues with sleep, and consult with primary care medicine for sleep apnea evaluation. The Veteran reported having sleep disturbances, with four hours of sleep per night. He indicated that his wife reported that he stopped breathing in his sleep and that he often wakes up and doesn’t remember. A subsequent October 2012 note shows that the Veteran reported that his sleep issues improved and that he was getting more rest so he did not follow up with his primary care physician regarding a sleep study. Private treatment records include a November 2014 sleep study, in which the Veteran was diagnosed with obstructive sleep apnea. A July 2015 VA examination and medical opinion shows that the Veteran has diagnosed sleep apnea. The VA examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by service. The examiner reasoned that there was a lack of complaints, symptoms, diagnostic work-up or diagnosis of sleep apnea in service treatment records. And while the Veteran had undergone a sleep study in November 2014, the examiner indicated that this was many months after service separation. The Board initially acknowledges that obstructive sleep apnea was diagnosed within one year of service separation, however, sleep apnea is not included among the presumptive chronic diseases listed under 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Therefore, the diagnosis of sleep apnea within one year of service separation does not substantiate the claim. Regardless, the Board finds that obstructive sleep apnea was incurred in or caused by active service. Significantly, the Board finds that the diagnosis of obstructive sleep apnea within four months of service separation is persuasive evidence that the disability existed and had onset while the Veteran was in service. The Board does not find probative the VA medical opinion of record, which found that sleep apnea was less likely than not incurred in or caused by active service, because it relied on an inaccurate factual premise, namely, that there was no in-service evidence of sleep problems. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value.). Rather, the Board finds that service treatment records include July 2012, September 2012 and October 2012 notes outlining the Veteran’s complaints of sleep disturbance, to include reports from his wife that he stopped breathing at night, which he had no memory of. Accordingly, in in resolving all benefit of the doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 2. Entitlement to an increased rating in excess of 70 percent disabling for service-connected PTSD and psychotic disorder prior to September 1, 2015, and in excess of 50 percent disabling prior to February 19, 2017 Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2019). 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 (2019). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102, 4.3 (2019). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board notes that service-connected PTSD with psychotic disorder has been assigned a 70 percent disability rating under Diagnostic Code 9411, PTSD, prior to September 1, 2015, and a 50 percent disability rating for the rating period prior to February 19, 2017. The Veteran filed a claim for a non-initial increased rating for service-connected PTSD and psychotic disorder on June 22, 2015. Therefore, the rating periods on appeal are from June 22, 2015 to August 31, 2015, in which the Veteran is assigned a 70 percent rating, and from September 1, 2015 through February 18, 2017, in which the Veteran is assigned a 50 percent disability rating. Diagnostic Code 9411 utilizes criteria set forth in the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned 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 and maintaining effective work and social relationships. Id. A 70 percent disability rating 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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, or for the veteran’s own occupation or name. Id. The above set of symptoms is not an exclusive or exhaustive list, as evidenced by use of the phrase “such symptoms as,” followed by a list of examples. Rather, it serves as merely an example of the symptoms that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether she has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-V) abandoned the GAF scale and that VA has formally adopted the DSM-V, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-V applies when the appeal was certified after August 4, 2014. Here, the Veteran’s appeal was certified to the Board in a May 2017 VA Form 8; thus, the DSM-V applies and GAF scores are inapplicable. Entitlement to an increased rating in excess of 70 percent disabling for service-connected PTSD and psychotic disorder prior to September 9, 2015 Evidence during this rating period on appeal included VA treatment records, showing regular mental health treatment and individual therapy notes. A June 2015 individual therapy note shows the Veteran reported that he left his job in April because he felt that he could not cope with the stress of dealing with other people. He had a job where he was having to do repairs in resident’s condos and felt that dealing with people, including upset people, was too much for him. He went to his supervisor to request another job where he did not have to deal with people but was told that there was not another job that would accommodate his request. The Veteran reported that he spent most of his time at home now and has regular visitation with his daughter. He indicated that he slept okay with medications but had nightmares and dreams that involve demons and devils. He reported that on awakening, he was somewhat disoriented as to whether he dreamed of the demons/devils or they were real. He expressed that he was more depressed, tearful, and did not leave home except to pick up his daughter for visitation, stopping at a drive thru if she was hungry, or getting gas in his vehicle. During the session, the Veteran was casually dressed, hygiene intact. The Veteran had good eye contact, was cooperative and quiet. His speech was within normal limits and the Veteran had a good mood. His affect was full ranging, and he denied suicidal and homicidal ideations. He reported having auditory hallucinations of a male voice at times, and reported an increased in seeing shadows and did not have delusions. His thoughts were clear, linear and coherent, with memory intact, and fair judgment and insight. A July 2015 individual therapy note shows the Veteran reported staying at home all the time, with the exception of going to pick up his daughter for visitation. He indicated that his ex-wife was moving to Georgetown to live with her boyfriend, so he will have to travel about 40 miles to pick his daughter up and take her home. The Veteran reported lack of motivation and the urge to move somewhere with few people around. During the session, the Veteran was casually dressed with hygiene intact. The Veteran had good eye contact, was cooperative and verbal. His speech was within normal limits and the Veteran had a depressed mood. His affect was blunted, and he denied suicidal and homicidal ideations. He did not have auditory hallucinations but reported seeing shadows. He did not have delusions. His thoughts were clear, linear and coherent, with memory intact, and fair judgment and insight. An August 2015 individual therapy note shows the Veteran reported being uninterested in doing much and spent most of time at home, unless his daughter was visiting and he would take her to the river to swim. He indicated that he was taking naps rather than sleeping through the night, and would get up to look out of the apartment peephole several times a night to make sure there is nothing going on. He denied being easily startled but reported that he would look out of the window if he heard noise outside. The Veteran wondered “how long this will last” and if he was permanently damaged. During the session, the Veteran was casually dressed with hygiene intact. He had average eye contact, and was cooperative and verbal. He had psychomotor retardation. His speech was within normal limits. He had depressed mood, with blunted affect, tearful at times. He denied suicidal or homicidal ideations. He didn’t have auditory hallucinations but reported seeing shadows at time, and is aware nothing is there, but is still bothered. He did not have delusions. The Veteran’s thoughts were clear, linear and coherent. His memory was intact and his judgment and insight were fair. An August 2015 mental health treatment note shows a chief complaint of having nightmares if he slept like normal people. During his appointment, the Veteran reported that his medical used to make him feel better, but he was depressed again and felt shut down. He indicated that he had no set bedtime and napped throughout the day, citing to experiencing nightmares if he slept at night. He reported that he had visitation with his daughter every other weekend and was working part-time, about 20 hours a week, and can take a break and sleep for about an hour if he gets tired. On mental health examination, the Veteran was casually dressed and groomed. He was guarded but cooperative with the new examiner, with normal rate, tone and volume of speech. His mood was depressed, and his affect was flat. He denied suicidal and homicidal ideations. He reported hearing sounds, specifically a man who whispers or calls his name, and tries to get his attention. He denied command hallucinations except for when yesterday he heard the voice say, “hit me.” The Veteran’s thought processes were logical with memory grossly intact and orientation x4. His judgment was adequate, and his insight was intact. Upon review of all the evidence, lay and medical, the Board finds that for the rating period from prior to September 1, 2015, the Veteran had psychiatric symptoms related to depression, auditory and visual hallucinations, chronic sleep impairment, flattened affect, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work and a work-like setting. He had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. These findings are consistent with lay statements provided by the Veteran during his treatment during the rating period. The weight of the evidence shows that the Veteran’s PTSD and psychotic disorder have been characterized by symptoms and a level of impairment consistent a 70 percent rating under Diagnostic Code 9411. The Board finds that the Veteran has not met or more nearly approximated the criteria for a higher 100 percent disability rating for PTSD with psychotic disorder at any time during the appeal period. See 38 C.F.R. § 4.130. The record does not indicate both total occupational and social impairment due to symptoms of such a severity as described for a 100 percent evaluation. While the Veteran reported that he left work and was unemployed during the rating period due to his inability to deal with other people, the Veteran maintained a relationship his daughter. Moreover, the Veteran did not exhibit symptomatology of such severity as indicated for a 100 percent rating (i.e. gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, or for the veteran’s own occupation or name). While the Veteran did report having hallucinations, to include hearing a man and seeing shadows, such hallucinations were not persistent, and the Veteran did not exhibit any other symptoms productive of complete social and occupational impairment. Vazquez-Claudio, 713 F.3d 112; Bowling, 15 Vet. App. 1. The Board finds that the degree of severity of the Veteran’s psychiatric symptoms and functional impairment is not consistent with a 100 percent rating for PTSD and psychotic disorder at any time during the appeal period. Entitlement to an increased rating in excess of 50 percent disabling for service-connected PTSD and psychotic disorder prior to February 19, 2017 Evidence during this rating period on appeal included VA treatment records, showing regular mental health treatment and individual therapy notes. A September 2015 individual therapy note shows the Veteran continued to spend a lot of time alone. He did join a small group of friends to watch a football game, but did not plan to join them if they decided to go to a restaurant or bar to watch the game. The Veteran reported that he was not sleeping well and did not believe his medication was working. He stated that his mood was okay with depressed days, and that he did not feel motivated to do things like go to the gym. He was working a boat that was given to him and planned to continue to work on this and be ready for next summer. He reported that visits with his daughter are going well. During the session, the Veteran was casually dressed with hygiene intact. He had average eye contact, and was cooperative and verbal. He had psychomotor retardation. His speech was within normal limits. He had depressed mood, with blunted affect, tearful at times. He denied suicidal or homicidal ideations. He didn’t have hallucinations or delusions. The Veteran’s thoughts were clear, linear and coherent. His memory was intact and his judgment and insight were fair. An October 2015 mental health treatment note shows the Veteran did not see a change from his increased in medication from his prior visit. The Veteran indicated that his sleep was “all right” with nightmares “seldom (about once a week).” He continued to hear a man’s voice “trying to get [his] attention” but said he’s used to it. He did say he would be interested in therapy specific to that problem, including group. Upon mental status examination, the Veteran was casually dressed with hygiene intact. He had soft and slow speech, and was cooperative with the examination. His mood was “all right” and his affect was blunted. He denied suicidal and homicidal ideations. He admitted to hearing a voice sometimes but denied any command hallucinations. His thought processes were logical, and his memory was grossly intact. His orientation was x4 with adequate judgment and intact insight. An October 2015 individual therapy note shows that the Veteran reported that he is at home mostly, but was looking at the possibility of buying a home next year. He reported spending time with his daughter. He stated that he was feeling distressed about an event that happened recently with his daughter. He was at the beach with her, she was about an ankle deep in the ocean when a wave knocked her down. The Veteran quickly went into the water to rescue her, but he said he was still shaken by this. His daughter thought it was fun and wanted to go back in. During the session, the Veteran was casually dressed with hygiene intact. He had average eye contact, and was cooperative and verbal. He had psychomotor retardation. His speech was within normal limits. His mood was “okay”, with blunted affect. He denied suicidal or homicidal ideations. He didn’t have hallucinations or delusions. The Veteran’s thoughts were clear, linear and coherent. His memory was intact and his judgment and insight were fair. A December 2015 mental health treatment note shows the Veteran reported that insomnia remained a huge issue as he was often unable to sleep. The Veteran was divorced for one year and has a four-year-old daughter. He worked part-time stocking auto parts (approximately 24 hours per week). He was encouraged to come to Peer Support Walk-In Clinic as well as to consider attending the Socialization Group at Veteran’s Group led by the Peer Specialists as he tends to isolate. He reported that he enjoyed fishing and hunting and engaged in these activities with his brother or by himself. He was again encouraged to attend PTSD Group but he reported that he did not enjoy groups. Upon mental status examination, the Veteran was well groomed dressed in weather appropriate attire. His mood was dysthymic with constricted affect. He denied suicidal and homicidal ideations, and was future oriented. He did not report hallucinations or delusions. His thought processes were logical, and his memory had no deficits noted. His orientation was x4 with fair judgment and limited insight. A January 2016 mental health treatment note shows the Veteran stated: “When I have a good day, I am good, but if I have a bad day, I shut down. I think they are about even, because even if I have a good day, I think about the bad.” He reported that nightmares were “the same.” He denied any physical violence but admitted to verbal aggression. He had successfully transitioned to a new individual therapist. Upon mental status examination, the Veteran was casually dressed and groomed. He had soft and slow speech, and was cooperative with the examination. His mood was “all right” and his affect was blunted. His speech was soft and slow. He denied suicidal and homicidal ideations. He admitted to seeing shadows sometimes. His thought processes were logical, and his memory was grossly intact. His orientation was x4 with adequate judgment and intact insight. A March 2016 individual therapy note shows that the Veteran reported had been “really depressed” and had “bad panic attacks.” He reported that his mother resided in Surfside and was supportive. He continued to work in an auto parts store part-time. The Veteran indicated that his ex-wife was moving to Georgetown with his daughter and he expressed concern about his ability to see her due to finances. The Veteran was significantly depressed and reluctant to discuss his military experiences. He reported that his mother was supportive as was a friend with whom he goes fishing, however, he has a brother who is also a combat Veteran who resides with his mother, but they do not get along well. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect was blunted. His speech was variable. He denied suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no deficits. His orientation was x4 with good judgment and limited insight. An April 2016 individual therapy note shows a chief complaint of the Veteran having a falling out with his mother and that he had really bad panic attacks. He had financial difficulties and limited visitation to see his daughter which is a source of frustration. He indicated that his mother had been supportive but is now setting limits on him calling her while in-crisis when he experiences the panic attacks. The Veteran’s therapist reviewed some skills to engage in to decrease anxiety and recommended he rely on the Veteran Crisis Line. He reported that he was considering increasing his part time hours to distract himself. He reported that he brought his daughter fishing the other day. He was significantly depressed with ongoing thoughts about suicide, which had been chronic. His commitment to his daughter served as a deterrent. Veteran was well versed in where to seek help if suicidal ideation becomes unmanageable. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect was flat. His speech was monotonous. He denied suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no deficits. His orientation was x4 with fair judgment and with some insight. An April 2016 mental health treatment note shows that the Veteran had run out of medication a few weeks prior, in which he reported having “jolts in my head and crazy thoughts” of hanging himself and harming others but looked at a picture of his 4-year-old daughter and “changed [his] mind.” He reported having four to five panic attacks per week and felt they are lasting longer (about 30 minutes), and complained that, “I’m not getting the support from my mom like I used to.” He also reported having nightmares a few times a week. When asked, he felt they were associated with his panic attacks. Upon mental status examination, the Veteran was casually dressed and groomed. He was cooperative with the examination. His mood was “all right”, and his affect was glum. His speech soft and slow. He denied suicidal and homicidal ideations. He did not report delusions. His thought processes were logical, and his memory was grossly intact. His orientation was x4 with adequate judgment and limited insight. An April 2016 individual therapy note showed that the Veteran was having panic attacks daily and rarely left the house. He enjoyed visits with four year old daughter and was looking forward to spending time with her at the river, swimming and fishing now that the warmer weather had arrived. The Veteran reported that his PTSD symptoms had worsened and he was perseverating on his experiences in Afghanistan. He remained in touch with four or five individuals from his unit although his best friend, who had resided in Columbia and was the closest to him, died of a gunshot wound during a Halloween night incident on in 2015. The Veteran had a very difficult time discussing this loss due to his limited social support. The Veteran discussed decreasing social isolation and engaging in meaningful activities. The VA therapist indicated that the Veteran was intermittently suicidal but that protective factors included love for his daughter. He was well versed on a safety plan and stated that he will contact the Veteran Crisis Line if symptoms became unmanageable. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect was blunted. His speech was monotonous. He denied suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no marked deficits. His orientation was x4 with fair judgment and limited insight. A June 2016 individual therapy note showed that the Veteran was “tired of living like this” that he was “not normal” and that his “nightmares were bad.” The Veteran reported experiencing anxiety, panic attacks and was intermittently suicidal as his medications were not fully targeting symptoms. He indicated that he had a disagreement with his mother, but they have reconciled their differences which was a positive as he had very limited social supports. Finances were also an issue. The Veteran reported that he was contemplating getting a service dog and was encouraged to explore this option as he resided alone and had visitation with his young daughter but cried each time she left. He does have a friend that he sees intermittently. The Veteran had been fishing more and was trying to engage in more activities. He remained employed part-time at an auto parts store but was not getting along well with a Vietnam Veteran who was recently hired. The Veteran’s boss appeared to be understanding when the Veteran had to go outside when he was experiencing panic attacks. Veteran is reluctant to discuss his combat experiences. The Veteran reported very poor sleep hygiene with difficulty falling asleep. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was dysthymic, and his affect was blunted. His speech was variable. He denied suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no marked deficits. His orientation was x4 with good judgment and some insight. A June 2016 individual therapy note showed that the Veteran reports that he had plans to spend the next three weekends with his daughter. He reported that his depression persisted with chronic suicidal ideation. He experienced suicidal ideations as recently as the night before this therapy session, with a plan to cut himself with a knife which he contemplated doing for an extended period. The Veteran indicated that religious beliefs and love for his daughter served as deterrents. The Veteran’s therapist had a plan to develop safety plan with Veteran during his next visit and reviewed available resources. Veteran has Veteran Crisis Line materials but was reluctant to call them, because he didn’t “want the police showing up at my house...”. The Veteran had aspirations to own his own garage as he was very good mechanically and discussed with his therapist exploring what this might entail. The Veteran’s family was involved and supportive. The Veteran was pursuing getting a service dog from a trainer in Surfside. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was dysthymic, and his affect was blunted. His speech was variable. He denied suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no marked deficits. His orientation was x4 with good judgment and some insight. A June 2016 mental health treatment note shows that the Veteran reported that his new trial of new medication was helping him get to sleep but was not helping with his nightmares or panic, which was “all the time.” He admitted to having a suicidal ideation two days ago, but he indicated that, “I don’t wanna go to Hell.” Upon mental status examination, the Veteran was casually dressed and groomed. He was cooperative with the examination. His mood was “ok”, and his affect was anxious and dysphoric. His speech was soft and slow. He denied current suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory was grossly intact. His orientation was x4 with competent judgment and improved insight. An August 2016 individual therapy note shows that the Veteran reported that he was doing better and that he had a service dog. He had become involved with a girl from high school who has a daughter the same age as his daughter, and he reported that he was pleased about the relationship. The Veteran had plans to go to a lake house in September with his daughter and extended family. He reported that his depression persisted, but that chronic suicidal ideation had decreased dramatically. He indicated that religious beliefs and love for his daughter serve as deterrents. The Veteran reported that his panic attacks have decreased by half since getting his service dog two months ago. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect congruent to his mood. His speech was variable. He denied current suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no impairments noted. His orientation was x4 with good judgment with insight. An August 2016 individual therapy note shows the Veteran was still having panic attacks and had a flashback the other day in the shower. Similar to his previous session, the Veteran reported being involved with a girl from high school who has a daughter his daughter’s age, and that he was much more hopeful about his future. His depression persisted, with chronic suicidal ideations which had decreased dramatically. He indicated that religious beliefs and love for his daughter serve as deterrents. The Veteran reported that his panic attacks have decreased by half since getting his service dog. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect congruent to his mood. His speech was variable. He denied current suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no impairments noted. His orientation was x4 with good judgment with insight. An October 2016 individual therapy note shows the Veteran was doing ok, and that he was really depressed the day before, which came out of nowhere. He reported that he began living with the girl from high school. His depression persisted, with chronic suicidal ideations which had decreased dramatically. He indicated that religious beliefs and love for his daughter serve as deterrents. The Veteran reported that his panic attacks have decreased by half since getting his service dog. He indicated that he was unhappy with his job and his boss. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect congruent to his mood. His speech was variable. He denied current suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no impairments noted. His orientation was x4 with good judgment with insight. An October 2016 individual therapy note shows that the Veteran had a panic attack on the way in to his session and that his job was letting him go. Much of the same was reported from the last two sessions. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect congruent to his mood. His speech was variable. He denied current suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no impairments noted. His orientation was x4 with good judgment with insight. A November 2016 primary care triage note shows that the Veteran suffered a panic attack while in the mental health outpatient clinic. He was treated and released to EMS for transport to a private medical facility. A November 2016 individual therapy note shows that the Veteran had a panic attack during his session. At the beginning of the session, the Veteran’s therapist inquired about suicidality and his love for his daughter nor his loyalty to his dog were cited as protective factors, but when asked the question, his response was an emphatic “no.” His relationship was strained with his new girlfriend as she was frustrated by his unemployment as he remains in his home and has not even considered looking for a new job most likely due to increased depression symptoms. When the Veteran was asked if he would consider residential PTSD treatment because his needs were exceeding his bi-weekly therapy level of care, given that his panic attacks have increased, the Veteran began shaking uncontrollably with his eyes darting around room with an inability to focus, and he was unable to articulate any words when asked basic questions such as his dog’s name or my name. The Veteran began crying and his service dog jumped onto him to assist. Medical personnel were called, and the Veteran had stopped shaking at this point, but other above-mentioned symptoms persisted. It was unclear whether the Veteran had had a seizure or if he was having a severe panic attack. He was assessed medically and 911 was called with Veteran being transported to a private hospital for further evaluation. The Veteran was quite fragile, and he was at very high risk for suicide as he is chronically suicidal and often anhedonic but the stress of losing his job and his relationship being affected are serving to exacerbate these issues. A November 2016 individual therapy note shows the Veteran “stopped caring.” The Veteran reported that he celebrated Thanksgiving with family. He was drinking daily (several beers and a glass of Southern Comfort). He also reported having issues related to intimacy. Veteran often orders out fast food rather than cooking and we discussed this as being unhealthy and also cooking would be a good distraction from an otherwise mundane day. He remained very frustrated that antidepressant medication trials have been numerous and unsuccessful. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect congruent to his mood. His speech was variable. He denied current suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no impairments noted. His orientation was x4 with good judgment with insight. A January 2017 individual therapy note shows the Veteran stopped drinking. The therapy indicated that his depression persisted with chronic suicidal ideation which had decreased since last seen. His relationship with his girlfriend had improved and he was actively seeking employment, but his options were limited as he wanted his service dog with him while working. The Veteran had previously been ordering out fast food rather than cooking but reported that he has been cooking and making a concerted effort to get out each day. He enjoyed bringing his dog to the dog park. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect congruent to his mood. His speech was variable. He denied current suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no impairments noted. His orientation was x4 with good judgment with insight. A January 2017 mental health treatment note showed that the Veteran was having panic attacks about every day. He enjoyed bringing his dog to the dog park although had been doing less of this over past two weeks. He remained alcohol free and lost 15 pounds as a result. It was recommended that Veteran be evaluated for a TBI as in 2012 when he was leaving COP Airborne in Salar, Afghanistan he was a passenger in a MRV that was hit with an IED. He had marked memory deficits and it was unclear whether he has been properly evaluated. Upon mental status examination, the Veteran was well groomed. He was cooperative with the examination. His mood was depressed, and his affect congruent to his mood. His speech was variable. He denied current suicidal and homicidal ideations. There was no evidence of psychosis. His thought processes were logical, and his memory had no impairments noted. His orientation was x4 with good judgment with insight. Upon review of all the evidence, lay and medical, the Board finds that for the rating period from prior to February 19, 2017, the Veteran had psychiatric symptoms related to depression, panic attacks, chronic sleep impairment, depressed affect, suicidal ideation, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work and a work-like setting. The Board finds that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. These findings are consistent with lay statements provided by the Veteran during his treatment during the rating period. The weight of the evidence shows that the Veteran’s PTSD and psychotic disorder have been characterized by symptoms and a level of impairment consistent an increased 70 percent rating under Diagnostic Code 9411. The Board finds that the Veteran has not met or more nearly approximated the criteria for a higher 100 percent disability rating for PTSD with psychotic disorder at any time during the appeal period. See 38 C.F.R. § 4.130. The record does not indicate both total occupational and social impairment due to symptoms of such a severity as described for a 100 percent evaluation. While the Veteran reported that he was fired from work and was unemployed during the latter portion of the rating period, the Veteran maintained a relationship his daughter, his mother, and had moved in with a woman he knew from high school, who also had a daughter the same age. And while the Veteran’s relationship with his mother and girlfriend were strained at separate points during the rating period, the Veteran mended these relationships with both women. Moreover, the Veteran did not exhibit symptomatology of such severity as indicated for a 100 percent rating (i.e. gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, or for the veteran’s own occupation or name). While the Veteran did report having daily panic attacks and suicidal ideations, the Veteran did not also exhibit complete social and occupational impairment. Vazquez-Claudio, 713 F.3d 112; Bowling, 15 Vet. App. 1. The Board finds that the degree of severity of the Veteran’s psychiatric symptoms and functional impairment is not consistent with a 100 percent rating for PTSD and psychotic disorder at any time during the appeal period. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.