Citation Nr: 21024892 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-34 016 DATE: April 26, 2021 ORDER Subject to the law and regulations governing payment of monetary benefits, entitlement to a 70 percent evaluation for service-connected posttraumatic stress disorder (PTSD), but no higher, from July 24, 2013, is granted. FINDING OF FACT From July 24, 2013, the Veteran’s PTSD has been characterized by occupational and social impairment with deficiencies in most areas, but without total social impairment. CONCLUSION OF LAW The criteria for a 70 percent initial evaluation, but no higher, for service-connected PTSD are met from July 24, 2013, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from June 1968 to January 1970 and from March 1972 to August 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). This claim has been before the Board previously. In December 2019 the Board denied entitlement to a rating in excess of 50 percent for PTSD. The December 2019 Board decision was thereafter appealed to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand (JMR) was issued in November 2020, which vacated that decision and remanded it in order for the provision of an adequate statement of reasons and bases for its determination. The Board notes that the Veteran currently has a pending claim for individual unemployability due to service-connected disabilities (TDIU). As the Veteran has requested a Board hearing with respect to his TDIU claim, the Board will not adjudicate the claim at this time. Subject to the law and regulations governing payment of monetary benefits, entitlement to a 70 percent initial evaluation for service-connected PTSD from July 24, 2013 Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 50 percent rating: 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 being able to establish and maintain effective work and social relationships. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 70 percent rating: Occupational and social impairment, with deficiencies in most areas, such as with 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; experiencing 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. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following criteria for entitlement to a 100 percent rating: 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; and memory loss for names of close relatives, own occupation, or own name. 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. The focus of an increased rating analysis is on the severity of the symptoms and the level of impairment to occupational and social function rather than how many of the listed symptoms the veteran exhibits. The use of the term “such as” in the rating criteria demonstrates that the symptoms 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. 38 C.F.R. §§ 3.321, 4.2, 4.2, 4.10; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board need not find most, or even some, of the enumerated symptoms are present to award a specific rating. A Veteran may meet the criteria for a given disability rating by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. When determining the appropriate disability evaluation, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a particular Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In adjudicating a claim for a higher rating, all symptoms of a claimant’s service-connected mental disorder that affect the level of occupational or social impairment must be considered. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis In the March 2015 rating decision, the AOJ recharacterized the Veteran’s service-connected psychiatric disability from an anxiety disorder to PTSD and continued the rating. As the Veteran filed a claim for an increased evaluation on July 24, 2014, the appeal period under consideration is from July 23, 2013 to the present, which represents the date of the increased rating claim, plus the one year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As detailed in the above recharacterization, the appeal period includes a period of time when the Veteran’s disability was rated under a different disability, but rated under the same criteria, so the recharacterization of the Veteran’s disability does not have an impact on the claim for an increased rating during the appeal period. The Veteran is service connected for an anxiety disorder and has a 50 percent initial rating under DC 9413 from October 21, 2010, to July 23, 2014 and is service connected for PTSD and has a 50 percent initial rating under DC 9411 for the period beginning July 24, 2014. 38 C.F.R. § 4.130, DC 9411. In February 2015 the Veteran had a VA medical examination. The VA examiner diagnosed the Veteran with PTSD and noted that the new PTSD diagnosis was a continuation of the previously identified psychological problem. The examiner noted the Veteran’s significant distress or impairment in social occupational, and other important areas of function. It was further noted that the Veteran currently experienced symptoms including anxiety, suspiciousness, chronic sleep impairment, disturbances of mood and motivation. During the examination the Veteran explained to the examiner that he had been experiencing detachment from his family; he stated that although he can greet them, he can no longer sit and talk with his family. The VA examiner described the impact of the Veteran’s PTSD on his relationships, specifically that the Veteran has difficulty in being able to establish and maintain effective work and social relationships and has an inability to establish and maintain relationships. The Veteran submitted a private medical opinion, provided by Dr. J.M., from an August 2018 medical examination. Dr. J.M. stated that the Veteran minimizes his difficulties and experiences severe social and occupational limitations due to PTSD. The Veteran reported to the examiner that the Veteran’s wife has helped him stay out of jail and has prevented him from shooting people. The examiner opined that there are deficiencies in the Veteran’s familial and marital interaction, including depersonalization and detachment. The Veteran has severe impairments of judgement, concentration, memory, communication, and the ability to maintain effective relationships. Dr. J.M. concluded that the Veteran is unable to function independently, appropriately, and effectively, which makes adapting to stressful circumstances impossible. The Veteran had an additional VA medical examination in November 2018. The November 2018 examiner concluded that the Veteran’s PTSD symptoms cause significant distress or impairment in social, occupational, or other important areas of functioning. The examiner also noted that the Veteran’s symptoms include anxiety, suspiciousness, chronic sleep impairment, and a difficulty with establishing and maintaining effective work and social relationships. The Veteran and his wife have consistently described the familial effort needed to manage the Veteran’s anger and outbursts. In the September 2015 Form 9 filed by the Veteran, he noted that he is aware it may appear that he is able to “function well,” but that mainly happens due to the support of his family. In July 2018 statement submitted by the Veteran, he indicated that he gets irritated easily and that only his daughter and wife are able to prevent him from getting violent. The Veteran’s wife also submitted a statement in July 2018, in which she described how it is difficult for the Veteran to interact with people. She noted that the Veteran is not close to many people, and that it is difficult for him to communicate with his family. He has difficulty forming relationships due to his inability to trust others. The Veteran’s wife also detailed that she is the one who helps the Veteran get out of situations when he is having a negative reaction. She also noted that he has outbursts of anger and violence, which include the threat of the Veteran using physical force. The Board finds that the evidence of record, including an February 2015 and November 2018 VA examinations for PTSD, the August 2018 private provider opinion, and the lay statements provided by the Veteran and his wife reflect that the Veteran has experienced severe psychiatric symptoms throughout the appeal period. He has consistently and credibly reported experiencing these symptoms. The Board additionally finds that the Veteran’s symptoms indicate occupational and social impairment with deficiencies in most areas. The Veteran’s symptoms impact almost every area of his life, including work, family relations (including accusations of domestic violence), and mood. He has had difficulty maintaining relationships, impaired impulse control, difficulty adapting to stressful circumstances. After a thorough review of the record, the Board finds that the most probative evidence reflects that the Veteran’s psychiatric symptoms and resulting functional impairment most nearly approximate the criteria for a 70 percent, but not higher, evaluation throughout the entirety of the appeal period. The Board finds that the Veteran’s PTSD symptoms do not more closely approximate a 100 percent disability rating due to total occupational and social impairment. In this regard, the Veteran has not been shown to have gross impairment in thought process or communication, delusions, or hallucinations, or to have persistent danger of hurting himself or others. Although it is noted in the August 2018 private provider opinion that the Veteran experienced auditory hallucinations during the early 1970s, there has been no evidence of continued auditory hallucinations since that time. Further, while the Veteran has difficulties maintaining some familial and social relationships, he is able to maintain relationships with his wife and daughters. To the extent that undertaking social situations and relationships may be difficult due to the Veteran’s PTSD symptoms and some impact on his employment, that functional impairment is accounted for in the 70 percent evaluation which the Board has found to be warranted. In sum, because the Veteran’s PTSD symptoms do not result in total social and occupational impairment, assignment of a 100 percent initial evaluation is not warranted. 38 U.S.C. § 5107. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, Associate 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.