Citation Nr: 21024381 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-13 802 DATE: April 22, 2021 ORDER An initial rating in excess of 50 percent, prior to May 30, 2017, is denied. An increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted for the period beginning May 30, 2017. An increased rating of 100 percent rating for PTSD is granted from September 24, 2020. FINDINGS OF FACT 1. Prior to May 30, 2017, the relevant, competent evidence shows occupational and social impairment with reduced reliability and productivity. 2. The weight of the competent and probative evidence demonstrates that from May 30, 2017, the severity, frequency, and duration of the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in most areas, due to symptoms of suicidal ideation, impaired impulse control, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. 3. The weight of the competent and probative evidence demonstrates that from September 24, 2020, the Veteran’s PTSD has been productive of total occupational and social impairment due to symptoms of gross impairment in thought processes or communication; persistent danger of hurting self; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. CONCLUSIONS OF LAW 1. 2. The criteria for entitlement to a 70 percent rating for PTSD for the period prior to May 30, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a 70 percent rating, but no more, for PTSD for the period beginning May 30, 2017 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.130, DC 9411. 3. The criteria for entitlement to a 100 percent rating for PTSD from September 24, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to December 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter last before the Board in August 2020, when it was remanded to the Agency of Original Jurisdiction (AOJ) for further development updated treatment records and a new VA examination. It has now returned for appellate review. Such items have been completed so there has been substantially compliance with the Board’s prior remand directives. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c).   Increased Rating for PTSD The U.S. Court of Appeals for Veterans Claims (the Court) has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, staged ratings for the disability on appeal have already been assigned. In a November 2014 rating decision, the Veteran was awarded service connection and assigned a 50 percent rating for PTSD, effective November 25, 2013. Then, in a December 2020 rating decision, the Veteran's PTSD rating was increased from 50 percent to 70 percent, effective November 23, 2020. However, the Veteran contends that the severity, frequency, and duration of his PTSD symptoms warrant a higher rating. See, e.g., 03/14/2017 Form 9. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. For the entire period on appeal, the Veteran has been rated under DC 9411 for PTSD, which is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula, in relevant part, a 50 percent rating is warranted 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful situations (including work or a worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The criteria for a 100 percent rating are 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 of 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 own name. 38 C.F.R. § 4.130, DC 9411. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "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." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. 1. An increased rating of 70 percent, but no higher, for PTSD is granted for the period beginning May 30, 2017. In his November 2015 Notice of Disagreement (NOD), the Veteran claimed entitlement to an increased rating for his service-connected PTSD, at that time rated at 50 percent. See 11/12/2015 NOD. Turning to the evidence, the Veteran was first afforded a VA examination in November 2014. 11/14/2014 C&P Exam. Upon examination, the examiner diagnosed the Veteran with PTSD and concluded that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. See id. at 2. The examiner also indicated that the following symptoms applied to the Veteran’s PTSD: anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Id. at 7. In March 2017, the Veteran reported that his PTSD was causing occupational and social impairment in many aspects of his life. See 03/14/2017 Form 9. He further reported that the following PTSD symptoms resulted in occupational and social impairment: severe mood swings; impaired impulse control; difficulty adapting to stressful circumstances; illogical, obscure, or irrelevant speech; and neglect of personal appearance and hygiene. See id. The record also contains several lay statement submitted by the Veteran’s wife and daughter, which detail the Veteran’s worsening PTSD symptoms. In March 2017, the Veteran’s wife reported that the Veteran’s PTSD symptoms have worsened and caused him to become increasingly isolated and depressed, resulting in angry and violent outbursts, to include screaming and spitting at their daughter. See 05/30/2017 Buddy/Lay Statement. In October 2017, the Veteran’s wife reported that she had to call the suicide hotline twice since her March 2017 statement due to the Veteran’s suicidal threats. See 02/01/2018 Buddy/Lay Statement. In a May 2017 statement, the Veteran’s daughter reported that following an argument with her mother, she found the Veteran sitting next to a lake crying and contemplating drowning himself. See 05/30/2017 VA 21-4138, Statement in Support of Claim. Private mental health treatment records from Genesis Counseling Center show that the Veteran sought treatment for his PTSD following an incident on May 29, 2017, when the Veteran threatened to leave and never come back following an argument with his wife. See 05/18/2018 Medical Treatment Record – Non-Government Facility. Further, a June 2017 Genesis Counseling Center intake note indicates that the Veteran’s PTSD was “overwhelming.” Id. at 2. The Veteran was next afforded a VA examination in January 2020. 01/22/2020 C&P Exam. Upon examination, the examiner diagnosed the Veteran with PTSD and concluded that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. See id. The examiner also indicated that the Veteran’s ongoing PTSD symptoms resulted in impairment and distress in a number of areas of his life, to include suicidal ideation, nightmares most nights, upsetting intrusive trauma memories, distress at reminders of trauma, irritability, and verbal angry outbursts. Id. at 7-8. VA treatment records contain a January 2020 Nursing Note and March Nursing Mental Health Check-In Note, which reveal that the Veteran reported suicidal thoughts. 04/24/2020 CAPRI at 9, 11. Finally, the record contains a July 2020 Bedford County Sheriff Office Incident Report, which reveals that the Veteran’s daughter called the police after the Veteran threatened to commit suicide. See 09/24/2020 Civilian Police Reports. Based on the foregoing, the Board finds that the weight of the competent and probative evidence supports a grant of a 70 percent disability rating for PTSD from May 30, 2017, the date VA received a lay statement from the Veteran’s daughter in which she reported that the Veteran’s PTSD symptoms had worsened to include suicidal ideation. See 05/30/2017 VA 21-4138, Statement in Support of Claim. The Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10, 19-20 (2017). The Court specified that VA must not require "more than thought or thoughts to establish the symptom of suicidal ideation," and may not require that the Veteran have been "hospitalized or treated on an inpatient basis" to establish suicidal ideation because that imposes a higher standard that the criteria in the Diagnostic Code for mental disorders. Id. at 20-21. Moreover, the Court cautioned VA not to conflate the risk of "suicidal ideation, which VA generally considers indicative of a 70 [percent] evaluation, and his risk of self-harm, the persistent danger of which VA generally considers indicative of a 100 [percent] evaluation." Id. at 21. As applied, the Veteran's daughter’s report that she found her father sitting next to a lake, crying and contemplating drowning himself is sufficient to establish the suicidal ideation symptom consistent with a 70 percent rating in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Board finds the Veteran’s daughter’s statement to be competent, credible, and probative as to her first-hand observations of the Veteran. In this regard, the Board finds that the Veteran’s daughter is competent to report experiences observable by her senses, to include her father’s suicidal ideation and other worsening PTSD symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also acknowledges the Veteran’s daughter’s September 2020 lay statement, in which she reports living with the Veteran for the past 15 years, and acting as his primary caretaker for the past two years, which further bolsters the credibility of her statements. See, e.g., 09/24/2020 Buddy/Lay Statement. Furthermore, the Board finds her statements to be credible, as they are consistent with other evidence of record, including statements submitted by the Veteran and his wife describing his worsening PTSD symptoms. Resolving any doubt in favor of the Veteran, the Board finds that the Veteran's symptomatology for the period on appeal most closely approximates the severity of symptoms contemplated by occupational and social impairment with deficiencies in most areas, due to symptoms of suicidal ideation, impaired impulse control, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. That is, the severity of symptoms contemplated by a 70 percent rating for PTSD under the General Rating Formula. See 38 C.F.R. § 4.130, DC 9411. After a holistic analysis of the severity, frequency, and duration of the signs and symptoms of the Veteran’s PTSD, the Board finds, however, that entitlement to the next-higher and maximum schedular rating of 100 percent for PTSD is not warranted for the period beginning May 30, 2017. In this regard, the Board finds that the competent and probative evidence tends to weigh against a finding of total social impairment. In fact, the Veteran’s symptoms of suicidal ideation, impaired impulse control, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships are specifically contemplated under the rating criteria for a 70 percent evaluation. See 38 C.F.R. § 4.130, DC 9411. For the foregoing reasons, the Board finds that entitlement to an increased rating of 70 percent, but no higher, is warranted for the period beginning May 30, 2017. Prior to May 30, 2017, the Board finds that the preponderance of the evidence is against a rating in excess of 50 percent. The Board finds the relevant, competent evidence shows occupational and social impairment with reduced reliability and productivity. In support of this finding, the 2014 examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported an up/down relationship with this wife, but a good relationship with his children. He also reported being close to his sisters. He denied suicidal or homicidal ideation at this time. The Veteran PTSD was manifested in 2014 by anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Additionally, in March 2017, the Veteran reported that his PTSD was causing occupational and social impairment in many aspects of his life. He further reported that the following PTSD symptoms resulted in occupational and social impairment: severe mood swings; impaired impulse control; difficulty adapting to stressful circumstances; illogical, obscure, or irrelevant speech; and neglect of personal appearance and hygiene. 2. Entitlement to a 100 percent rating for PTSD is granted from September 24, 2020. In September 2020, the Veteran’s daughter submitted lay statements regarding the Veteran’s worsening PTSD symptoms. See 09/24/2020 Buddy/Lay Statement. The Veteran’s daughter reported that his PTSD symptoms were worsening to include frequent suicidal threats, cognitive decline, intermittent inability to perform activities of daily living (ADLs), persistent danger of hurting himself, and neglect of hygiene. In a September 2020 letter, A.J., NP, detailed the Veteran’s history of PTSD and progressively worsening symptoms. See 09/24/2020 Medical Treatment Record – Non-Government Facility. A.J. reported that the Veteran had received treatment since July 2018 at Centra Medical Group – Bedford, and had a history of insomnia, PTSD, depression, mild cognitive impairment, nightmares, and mood swings. Further, A.J. indicated that the Veteran’s family had noticed a decline in his cognitive function over the course of the past year, to include memory loss, confusion, and changes in demeanor. Finally, A.J. indicated that due to the Veteran’s significant history of PTSD, anxiety, and mild cognitive impairment, he may be experiencing the onset of dementia or further cognitive decline and is at risk of acute delirium. See id. at 3. Finally, in November 2020, the Veteran was afforded another VA examination to assess the severity of his service-connected PTSD. 11/23/2020 C&P Exam. Upon examination, the examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See id. The examiner also indicated that the following symptoms applied to the Veteran’s PTSD: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances or motivation or mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and neglect of personal appearance and hygiene. Id. at 7. The examiner also reported that the Veteran threatened suicide in March 2020 following a family argument, and that since his last examination in January 2020, his symptoms of suicidal ideation, anger, negative alterations in mood, and flashbacks have all increased. Id. at 8. Resolving any doubt in favor of the Veteran, the Board finds that the Veteran's symptomatology for the period on appeal most closely approximates the severity of symptoms contemplated by total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent danger of hurting self; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. That is, the severity of symptoms contemplated by a 100 percent rating for PTSD under the General Rating Formula. See 38 C.F.R. § 4.130, DC 9411. Specifically, the evidence of record contains statements from the Veteran’s daughter and A.J., N.P., received by VA on September 24, 2020. See 09/24/2020 Buddy/Lay Statement and 09/24/2020 Medical Treatment Record – Non-Government Facility. The Board finds the statements submitted by the Veteran’s daughter and A.J., N.P., to be competent, credible, and probative as to the material issue of the severity of the Veteran’s PTSD. Further, the Board finds that the PTSD symptoms described in the September 24, 2020 statements, including frequent suicidal threats, cognitive decline, intermittent inability to perform ADLs, persistent danger of hurting self, and neglect of hygiene and appearance, more nearly approximates total occupational and social impairment, which warrants a 100 percent rating for PTSD. The Board acknowledges the November 2020 VA examination report and the examiner’s finding that the Veteran had occupational and social impairment with deficiencies in most areas, the severity contemplated by a 70 percent rating for PTSD, rather than total occupational and social impairment. However, the Board has engaged in a holistic analysis and taken into consideration the Veteran’s overall PTSD disability picture, and finds that it is most nearly approximated by total occupational and social impairment. Indeed, the November 2020 examination report reflects that the Veteran’s symptoms of suicidal ideation, anger, negative alterations in mood, and flashbacks had all increased in severity since a January 2020 VA examination, to include numerous suicidal threats. For the foregoing reasons, the Board finds that entitlement to the higher and maximum schedular rating of 100 percent rating for service-connected PTSD is thus warranted from September 24, 2020. 38 C.F.R. § 4.130, DC 9411. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.