Citation Nr: 21015074 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 19-20 097 DATE: March 16, 2021 ORDER From April 27, 2016, to the present, entitlement to a 100 percent evaluation for service-connected posttraumatic stress disorder (PTSD) is granted, subject to regulations governing the payment of monetary awards. FINDING OF FACT The most probative evidence reflects that the Veteran’s service-connected PTSD resulted in total social and occupational impairment from April 27, 2016, to the present. CONCLUSION OF LAW From April 27, 2016, to the present, the criteria for a 100 percent initial evaluation for the Veteran's service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United states Army from May 1971 to May 1991, to include in the Republic of Vietnam. He is in receipt of a Purple Heart Medal. This matter comes to the Board of Veterans' Appeals (Board) from a January 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In March 2021, the Veteran presented oral testimony in support of his appeal at a board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. Preliminary matter One week after the Veteran’s appeal was certified to the Board, the Veterans Service Organization representing the Veteran revoked the organization as the Veteran’s power of attorney. At the March 2021 hearing, the Veteran acknowledged this revocation and conveyed his wishes to proceed with the hearing and readjudication of his appeal on a pro se basis. 38 C.F.R. § 20.608. As such, the Board will proceed as per the Veteran’s wishes. As the disposition in this matter is fully favorable to the Veteran, he is not prejudiced by the Board’s actions in this regard. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Entitlement to an evaluation in excess of 50 percent for service-connected PTSD Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent evaluation is warranted when there is 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; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when there is 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. The Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM 5, and examinations conducted pursuant to the DSM 5 do not include GAF scores. As the Veteran’s claim for benefits was certified after August 2014, the DSM 5 criteria will be utilized in the analysis set forth below. Analysis As an initial matter, the Board notes that the appeal period for consideration is much broader than that addressed by the AOJ in the June 2019 Statement of the Case which readjudicated the Veteran’s appeal. Specifically, the Veteran filed a claim for an increased evaluation for his service-connected PTSD on April 27, 2016, and the AOJ denied such in a September 2016 rating decision. Although the Veteran did not initiate an appeal, treatment records show that he sought VA treatment decompensation of his psychiatric state in December 2017 – during the appeal period of the September 2016 rating decision. Since these records are pertinent to the evaluation assigned for the Veteran’s service-connected PTSD and were in VA’s constructive possession during the appeal period of the September 2016 rating decision, such did not become final and remained open until readjudicated by the AOJ in the January 2019 rating decision, from which this appeal stems. 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). As such, the appeal period for consideration by the Board begins on April 27, 2016. The Veteran asserts that his service-connected PTSD is more disabling than the currently-assigned 50 percent evaluation, and that the functional impairment stemming from this service-connected disability is more congruent with total occupational and social impairment. For the reasons expressed below, the Board agrees. As an initial matter, the Board notes that there has been substantial disagreement concerning what acquired psychiatric disability or disabilities are productive of his symptoms. Specifically, the VA clinician who completed the January 2019 VA psychiatric examination opined that many of the Veteran’s severe psychiatric symptoms, to include suicidal ideation, were attributable to a diagnosis of adjustment disorder with mixed disturbance of emotions and conduct, which is a nonservice-connected disability resulting from the Veteran’s legal and housing difficulties. While acknowledging the above, a different VA clinician opined in June 2019 that the diagnosis of adjustment disorder with mixed disturbance of emotions and conduct had resolved, and yet, his severe psychiatric symptoms persisted. In light of this contradictory evidence, all psychiatric symptoms noted within the Veteran’s file will be attributed to this service-connected PTSD for the purpose of analyzing his appeal. Mittleider v. West, 11 Vet. App. 181 (1998). The evidence of record during the appeal period, to include the Veteran’s extensive records of VA psychiatric treatment and reports of January 2019 and June 2019 VA psychiatric examinations, reflect severe psychiatric symptoms prior to, and throughout, the appeal period. The Veteran has consistently reported experiencing flashbacks, extreme irritability, avoidance, isolation, hypervigilance, detachment and estrangement from friends and family members, anxiety, suicidal ideation (claimed to be constant at time), and passive thoughts of hurting others, to include co-workers. These symptoms have been reported with increasing severity and frequency before and during the appeal period. With particular attention to the Veteran’s reports of suicidal and possible homicidal ideation, the Board notes that there is evidence of record reflecting the Veteran’s denial of such on some occasions; however, the Veteran has an extensive history of altercations with other parties, and VA treatment records, the Veteran’s February 2019 notice of disagreement, and the March 2021 Board hearing transcript reflect that he has openly expressed thoughts in furtherance of self-harm. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Indeed, close review of the record reflects that the Veteran has utilized VA’s Crisis Line in instances where he could not readily connect his primary therapist. The record reflects that the Veteran was last employed with a business that manufactured bags filled with candy in 2014, and he left this job due to conflicts with his supervisor. Similarly, his prior occupations in the printing and hospital industries ended due to his inability to work harmoniously with his co-workers and supervisors. VA examinations pre-dating the appeal period for consideration note that each of these occupations was punctuated by verbal and physical altercations with others stemming from the Veteran’s extreme irritability. Although this evidence pre-dates the appeal period for consideration, the reasons that the Veteran left his prior jobs bear noting as relevant evidence regarding the level of occupational impairment stemming from his service-connected PTSD. Further, the record reflects that the Veteran’s service-connected PTSD results in significant social impairment. To this point, the Veteran is divorced and has not been involved in another relationship “in years.” He has two grown children – a son, with whom he is “distant,” and daughter, who he calls or texts approximately once per month. He claims to have no friends and does not attend gatherings, small or large, in social settings. While his brother lives in close proximity, their interactions are limited to nearly once each month. The Veteran asserts that his service-connected PTSD is the cause of the above-noted interpersonal issues, and the evidence of record is congruent with this assertion, as his irritability, anxiety, and agitation are manifestations of this service-connected disability. The Board observes that the January 2019 and June 2019 VA examination reports reflect that the examiners’ opinions that the Veteran's service-connected PTSD did not result in total social and occupational impairment. However, the frequency and severity of the Veteran's psychiatric symptoms reported in these examination reports are not congruent with the Veteran's VA treatment records, to include his extreme irritability and inability to function peaceably in social and/or worklike situations, noted above. The Board acknowledges that the medical evidence of record does not reflect that the Veteran experiences all of the symptoms associated with the 100 percent schedular evaluation. However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). With this in mind, the record unambiguously shows that the Veteran has been unemployed and self-isolated throughout the entirety of the appeal period, save for a monthly call, text exchange, and/or visit from family members. In sum, the most probative evidence reflects that the Veteran's service-connected PTSD resulted in total social and occupational impairment from April 27, 2016, to the present. As such, a 100 percent evaluation is warranted throughout the entirety of the appeal period. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.