Citation Nr: 21024415 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-25 488 DATE: April 22, 2021 ORDER Entitlement to a 50 percent initial rating for posttraumatic stress disorder (PTSD) (from August 19, 2016); a 70 percent rating from December 31, 2019; and a 100 percent schedular rating from [the earlier effective date of] December 11, 2020, is granted, subject to the regulations governing payment of monetary awards. FINDING OF FACT From August 19, 2016, the Veteran’s PTSD is reasonably shown to have been manifested by symptoms productive of occupational and social impairment with reduced reliability and productivity; from December 31, 2019, the PTSD is reasonably shown to have been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; and from [the earlier effective date of] December 11, 2020, the PTSD is reasonably shown to have been manifested by symptoms productive of total occupational and social impairment. CONCLUSION OF LAW The Veteran’s PTSD warrants “staged” ratings of 50 percent from August 19, 2016 to December 31, 2019; 70 percent from December 31, 2019 to December 11, 2020; and 100 percent from [the earlier effective date of] December 11, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.130, Diagnostic Code (Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from December 1968 to September 1970. This matter is before the Board on appeal from an April 2018 rating decision, which granted service connection for PTSD, rated 30 percent, effective August 19, 2016. In September 2020, a videoconference Board hearing was held before the undersigned; a transcript of the hearing is in the record. In November 2020, the matter was remanded for additional development. A February 2021 rating decision granted a 100 percent rating for the PTSD, effective January 26, 2021. [The Veteran separately appealed under the AMA appeals system three issues from an August 2019 rating decision; in his May 2020 Notice of Disagreement (VA Form 10182), he elected the Hearing with a Veterans Law Judge appeal lane, and a hearing in those matters was held in November 2020. The Veterans Law Judge who conducted that hearing will decide those matters.] A 50 percent rating for PTSD from August 19, 2016 to December 31, 2019; a 70 percent rating from December 31, 2019 to December 11, 2020; and a 100 percent rating from [the earlier effective date of] December 11, 2020 are granted. In a March 2017 Disability Benefits Questionnaire (DBQ), the Veteran’s diagnoses included depression and anxiety. His reported symptoms included especially poor interpersonal skills, feeling detached and withdrawn, depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, panic attacks more than once a week, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances including work or a worklike setting, inability to establish and maintain effective relationships, grossly inappropriate behavior, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The provider opined that the Veteran’s psychiatric diagnoses result in occupational and social impairment with deficiencies in most areas. In an April 2017 statement, the Veteran stated that he has difficulty sleeping at night and wakes up from bad dreams sweating. He stated that certain smells remind him of the past; that he was unable to work due to inability to get along with people around him; that he is unable to maintain meaningful relationships; and that, at times, he cannot stand to be bothered with family members. On January 2018 VA examination, PTSD was diagnosed. The Veteran reported that he got along well with his adult son, with whom he lived; they did not do any activities together. He reported that when he had dated in the past, he usually did not get along with girlfriends. He reported that he enjoyed fishing, and he usually went out on his boat by himself; that he generally did not like to be around people; and that he did not visit with family frequently. He reported that he received dialysis three times a week. He reported that his son did all of the grocery shopping. He reported that he worked most recently in the 1980s, and that he stopped working because he was tired of working and it put pressure on his body. He reported he had frequent verbal altercations with coworkers. He reported difficulty with sleep onset and maintenance, and that he had nightmares about two to three times per month. He reported seeing things move out of the corner of his eye; his descriptions of these phenomena were consistent with anxiety. He denied any plans to harm himself or others. His reported symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. On mental status examination, the Veteran was described as alert and cooperative. He denied suicidal and homicidal ideation. His movements were slow, and his clothing was clean and appropriate. His affect fluctuated during the conversation. He became tearful when discussing stressors during military service. His conversation was fluid and logical, and speech volume was quiet; speech rate and rhythm were normal. There was no evidence of delusional or disorganized thought content. The examiner opined that the Veteran’s PTSD results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner opined that the Veteran’s PTSD symptoms did not preclude work. Based on this evidence, the April 2018 rating decision on appeal granted service connection for PTSD, rated 30 percent, effective August 19, 2016. In a July 2018 addendum to the March 2017 DBQ, the evaluating psychologist opined that the Veteran’s PTSD-related symptoms included persistent intrusive thoughts, memories, and dreams; chronic and ongoing avoidant behaviors; substantially diminished adequacy and satisfaction in his occupational and social activities; increased arousal and always feeling highly conscious of potential threat and danger; chronic irritability; feeling depressed more often than not; and difficulty focusing his attention on activities. The psychologist opined that the Veteran’s capacity to function in routine work settings and interpersonal relationships was seriously impaired and posed an ongoing burden for him to cope with life. The psychologist opined that the Veteran is into capable to work due to his PTSD related symptoms. On December 31, 2019 VA examination, the Veteran reported that he lived alone and spent his time watching TV and going to dialysis. He reported that his cousin, who attended the exam with him, called to check on him frequently; they spent time together approximately every day or two and the cousin helped him with chores. He reported that he needed help to do simple activities of daily living; his cousin reported that the Veteran was able to do many chores or care for his personal hygiene. He reported that he had no contact with his adult children, who lived out of the state. He reported that he did not participate in group activities. He reported getting irritated frequently, raising his voice and throwing things when angry. He reported sleeping approximately 3 hours per night and napping frequently during the day, feeling tired most of the time. He reported low appetite and estimated he lost approximately 80 pounds over the previous year. He reported frequent suicidal ideations but denied plans to harm himself or others. He reported frequent memory problems and seemed to be disoriented and paranoid at times. His reported symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and flattened affect. On mental status examination, it was noted that the Veteran wore clothing that was weather-appropriate but appeared soiled. He made minimal eye contact and his affect responded minimally to conversation. His conversation was fluid and logical. There was no evidence of delusional or disorganized thought content. The examiner opined that the Veteran was capable of managing his financial affairs, and opined that the Veteran’s PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In an April 2020 addendum opinion, the VA examiner opined that the Veteran’s symptoms may cause him to be fatigued and drowsy during the day, and sleep disruptions due to PTSD are likely to contribute to this. The examiner opined that the Veteran had problems with concentration and memory that are affected by symptoms of PTSD. The examiner opined that, as a result of these symptoms, the Veteran was likely to have problems with fatigue in a work environment, and would likely also have difficulty remembering instructions and staying on task due to reported problems with memory and concentration. At the September 2020 Board hearing, the Veteran testified that the only time he leaves his home is for dialysis three times a week, and he is otherwise home, alone. He testified that he has difficulty sleeping due to nightmares and recurring intrusive memories of Vietnam, and gets up and walks around all night. He testified that his condition has worsened due to the need to self-isolate so much during the COVID pandemic. In an October 2020 statement, the Veteran stated that he had tried to work but would burst out in very angry moods, causing people around him to stay away from him. He stated that he got about 2 to 3 hours of sleep a night, constantly walking the floor and looking out his window. He stated that he had very bad nightmares. The Veteran submitted a December 11, 2020 dated statement from a nurse manager in the dialysis unit where he has been a patient throughout the appeal period. She stated that she observed the Veteran’s dialysis treatment being discontinued on numerous occasions due to hallucinations. She stated that she has witnessed the Veteran becoming disoriented as to time and place on the dialysis unit. She related that most days he appears unkempt, with his shirt inside out, clothes dirty, and neglecting his personal hygiene, etc. She stated that she had witnessed him becoming irate during his treatment, yelling, and cursing to get off the machine for fear of going blind; she stated that he is only able to stay on the dialysis machine for 2 hours despite his orders being for 3.5 hours. She stated that he missed countless treatments due to his mental illness. On December 2020 DBQ, the Veteran’s diagnosis was PTSD including symptoms of anxiety and depression. The evaluating provider (the provider of the March 2017 DBQ) opined that the Veteran struggles to maintain his lifestyle, sleeps poorly, is often overcome with distress, and lives alone and without any social support. It was noted that the Veteran has to use a power scooter when shopping for groceries. His reported symptoms included depressed mood; anxiety; near-continuous panic or depression; chronic sleep impairment; flattened affect; speech intermittently illogical, obscure, or irrelevant; gross impairment in thought processes or communication; difficulty adapting to stressful circumstances including work or a worklike setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control such as unprovoked irritability with periods of violence; spatial disorientation; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene; and disorientation to time or place. The provider stated that the Veteran has reportedly been experiencing psychotic symptoms in the course of his dialysis treatment, presenting as physically unkempt and with neglected personal hygiene, appearing disoriented as to time and place, and displaying inappropriate yelling and cursing. She opined that the Veteran’s psychiatric diagnoses result in total occupational and social impairment, explaining that he is incapable of functioning in a routine work setting and is permanently disabled at 100 percent. The provider stated that the Veteran has been under his care on an outpatient basis. On January 26, 2021 VA examination, the Veteran reported sleep disturbance with difficulty falling asleep and staying asleep, difficulty concentrating, intrusive memories and flashbacks of military trauma, chronic anxiety, suicidal ideation without intent, difficulty getting along with others, verbal and physical altercations, and auditory and visual hallucinations. He reported that he lives alone, and was last employed in the 1980s; he had difficulty getting along with supervisors and coworkers. His reported symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, persistent delusions or hallucinations, and neglect of personal appearance and hygiene. On mental status examination, the Veteran demonstrated a wide range of affect which was congruent with the topic of conversation. He was alert and fully oriented. His grooming was adequate, but hygiene was poor. He made appropriate eye contact and was cooperative. No obvious cognitive problems were noted. His speech was fluent and thought processes were logical. The examiner opined that the Veteran’s PTSD symptoms would significantly hinder his ability to interact with coworkers and would impair task performance and reliability; his chronic irritability, delusional thinking and hallucinations, and chronic depressed mood would likely impair his job performance to a significant degree. The examiner opined that the Veteran would likely be able to perform solitary, sedentary work in a low stress environment, because such an environment would require little interaction with others. The examiner opined that the Veteran’s symptom report, in conjunction with letters from his therapist and a VA nurse, and his VA records, support that he meets the criteria for a rating based on occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The examiner was unable to identify when the worsening of the disability (based on the evidence of record) occurred/is first shown, because there is no clear evidence in the record to allow for such a determination; the examiner opined that it is not possible to estimate when the symptoms worsened without undue speculation. Based on this evidence, a February 2021 rating decision granted the Veteran a 100 percent schedular rating for PTSD, effective January 26, 2021. Additional treatment records throughout show symptoms for the most part similar to those noted on contemporaneous examinations and treatment visits described above. The Veteran has also submitted lay statements describing his difficulties due to psychiatric disability. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned upon a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Under Code 9411 and the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for PTSD when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events. A 50 percent rating 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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 a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating 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 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, Code 9411. The use of the phrase “such symptoms as”, followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and the plain language of this regulation makes it clear that “the veteran’s impairment must be ‘due to’ those symptoms,” “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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). “[I]n the context of a 70[%] rating, § 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. at 117. Although a veteran’s symptoms are the “primary consideration” in assigning a rating under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation “also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board finds that throughout from August 19, 2016 (the effective date of the award of service connection), the Veteran, his treating and evaluating mental health personnel, and the VA examiners have reported symptoms that reflect occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent rating. Progress notes and the Veteran’s statements and hearing testimony reflect that the disability picture for the service-connected mental health disability was consistently shown to be one reflective of occupational and social impairment with reduced reliability and productivity. Accordingly, the Board finds a 50 percent rating is warranted from August 19, 2016. Continuing the analysis, the Board finds that the reports of VA examinations, treatment records, medical statements, hearing testimony, and lay statements, overall, do not show that prior to December 31, 2019 symptoms of the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, so as to meet the criteria for the next higher (70 percent) rating. While he reported isolating himself, he consistently maintained relations with close family (his adult son and a cousin), and that he enjoyed taking his boat out and going fishing, suggesting regular (albeit solitary) leisure activity. There was no evidence of a cognitive or thought disorder or impaired insight or judgment, and he consistently denied having suicidal ideation. This disability picture does not reflect that due to PTSD he had occupational and social impairment with deficiencies in most areas prior to December 31, 2019; instead, it reflects a reasonably well-functioning individual, with no deficiency in daily-activity functioning, thinking, or judgment, and with the ability to maintain familial relationships. The Board finds significant the December 31, 2019 VA examination report and April 2020 addendum opinion, which describe worsening symptoms, and reflect a disability picture reasonably reflective of occupational and social impairment with deficiencies in most areas. The Veteran first reported that he had no contact with his adult children, got irritated frequently to the point of raising his voice and throwing things when angry, had lost a significant weight due to diminished appetite, and had frequent suicidal ideations. Notably, he reported frequent memory problems and seemed to be disoriented and paranoid at times, reflecting cognitive impairment that was not noted [or reported] prior to that examination. Additionally, in an April 2020 addendum, the December 2019 VA examiner opined that the Veteran had problems with concentration and memory that were affected by his PTSD symptoms, and would likely have difficulty remembering instructions and staying on task due to these reported problems. As the examination reflects deficiencies in most areas, the Board finds that a 70 percent rating for PTSD is warranted from the date of the examination, December 31, 2019. The evidence of record does not show that symptoms that met (or approximated) the criteria for a 100 percent schedular rating were manifested at any time prior to December 11, 2020. It is not shown that, prior to December 11, 2020, the Veteran had symptoms productive of total occupational and social impairment. While on occasion he self-reported symptoms of greater severity, it is not shown by the record that his symptoms resulted in such total impairment. The record does not show that he required assistance tending to finances, gross impairment in thought processes or communication was not shown, his behavior was not shown as grossly inappropriate, and he was not in persistent danger of hurting himself or others. Furthermore, he lived on his own, and maintained relations with a cousin, who visited him regularly. The lay statements he submitted in support of this claim detail the types of problems that resulted from his psychiatric symptoms. The levels of functioning impairment described are encompassed by the criteria for the 70 percent rating [now] assigned from December 31, 2019. Accordingly, a 100 percent schedular rating is not warranted prior to December 11, 2020. The February 2021 rating decision granted the Veteran a 100 percent schedular rating for PTSD effective January 26, 2021, stating that this was the date of a VA examination showing increased symptomatology. On close review of the record, however, the Board notes that the December 11, 2020 statement from a nurse manager, in the dialysis unit where the Veteran was a patient, also describes symptoms productive of the total impairment that warrants a 100 percent rating. The nurse’s observations of the Veteran having hallucinations requiring cessation of treatment on numerous occasions, his disorientation as to time and place, his unkempt appearance and neglect of personal hygiene, and his yelling and cursing to stop the dialysis machine for fear of going blind (suggesting paranoia resulting in grossly inappropriate behavior) reflect a worsening of symptoms consistent with what was found on the January 26, 2021 VA examination. Therefore, the Board finds that a 100 percent schedular rating for the Veteran’s PTSD is warranted from the earlier effective date of December 11, 2020. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.