Citation Nr: 21025509 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-47 391 DATE: April 28, 2021 ORDER For the entire period on appeal, an evaluation of 100 percent, for a service-connected acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is granted. FINDING OF FACT The Veteran's service-connected acquired psychiatric disorder is at least in equipoise as to whether it has caused total functional impairment and is manifested by memory loss for names of close relatives, own occupation or own name, intermittent inability to perform activities of daily living, neglect of personal appearance and hygiene. CONCLUSION OF LAW The criteria for an evaluation of 100 percent disability for a service-connected acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from October 1961 to July 1962. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned Veteran's Law Judge (VLJ). A copy of the hearing transcript has been associated with the Veteran's electronic claims file. Increased Evaluation for an Acquired Psychiatric Disorder The Veteran contends that his symptoms meet the criteria for a higher evaluation for the service-connected acquired psychiatric disorder. After review of the entire record, and resolving all doubt in favor of the Veteran, the Board finds that his service-connected acquired psychiatric disorder more closely approximates the 100 percent rating throughout the period on appeal. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 their residual disorders in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will also be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017), a 70 percent 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 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Symptoms listed in VA's general rating formula for 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association. 38 C.F.R. § 4.130. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing Veterans on a disability spectrum based upon their objectively observable symptoms." 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." It was 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." If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. An evaluation over 70 percent, for a service-connected acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression The Veteran maintains that his PTSD has worsened, and he is entitled to a 100 percent disability rating. The Board granted service connection for PTSD in a June 2016 decision. A July 2016 rating decision implemented the Board’s grant of service connection and assigned a 50 percent evaluation effective February 26, 2008. The Veteran through his representative filed a Notice of Disagreement (NOD) against the 50 percent rating in October 2016. The RO provided a statement of the case in July 2018. The Veteran filed a September 2018 Form 9 Appeal to the Board, and a Form 8 Appeal in April 2019 requesting a travel Board hearing on the issue of PTSD increased rating over 50 percent. The Board hearing was held in February 2020, and the Board issued a decision in March 2020, that granted an increased rating from 50 to 70 percent for PTSD. In November 2020 the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) and vacated and remanded the issue to the extent to which it denied an evaluation in excess of 70 percent and the issue is back before the Board. In September 2008, the Veteran underwent a VA examination to determine the etiology and severity of any mental health disabilities. He reported intrusive memories, nightmares, emotional distress, avoidance feelings of detachment, irritability, and difficulty falling asleep. The VA examiner indicated that the Veteran did not meet the criteria for PTSD. On examination, the Veteran’s mood was depressed, appearance was clean, he was able to do the serial 7’s, and he was intact to person, place, and time. He reported sleep problems, denied suicidal and homicidal ideations, and displayed approbate behavior. The Veteran did report having personal hygiene problems indicating that he could go days without showering. In a June 2009 submission, the Veteran reported worsening symptoms that included difficulty sleeping and nightmares. He further reported intrusive thoughts and financial and social issues. In September 2012, the Veteran submitted two statements from mental healthcare professionals. His licensed clinical social worker said in a June 2012 statement that she agreed with the Veteran’s psychiatrist, that his PTSD symptoms were worsening despite his compliance with medical appointments and medications. The Veteran’s psychiatrist said she was his doctor since 2008, and his PTSD symptoms had gotten worse, and that his PTSD was more likely than not a direct result of his military traumatic experiences. A September 2012 Psychiatric impairment questionnaire reflects the diagnoses of PTSD and depression and described the prognosis as poor. Symptoms included intermittent inability to perform activities of daily living, deficiencies in family relations, spatial disorientation, deficiencies in mood, persistent irrational fears, difficulty adapting to stressful circumstances, persistent delusions or hallucinations, intrusive recollections of a traumatic experience, disorientation to time or place, inability to establish and maintain effective relationships, deficiencies in judgment, depression affecting the ability to function independently, appropriately, and effectively, and neglect of personal appearance and hygiene. The practitioner made it clear that the ratings relate to his ability to work and he would not be able to function in a competitive work environment nor is he able to sustain mental activity essential to work. The practitioner described him as markedly limited in many abilities. The practitioner indicated that the condition produces bad days and although a break in symptoms could produce a good day the Veteran did not have consistent symptoms. The practitioner indicated these limitations were likely from the date of diagnosis in February 2008. The third clinician working with the Veteran submitted a statement in October 2016 saying his PTSD is worsening, is more likely than not related to service, and is socially and occupationally disabling. In a January 2017 PTSD Disability Benefits Questionnaire, the Veteran’s treating psychiatrist since 2008 says she believes the Veteran’s PTSD causes 100 percent occupational and social impairment, and that the Veteran’s depression symptoms, which are distinguishable, wax and wane. The psychiatrist lists symptoms: hyperarousal, hypervigilance, intrusive thoughts, difficulty sleeping, sad mood, feeling distant from others, flashbacks. In September 2018, there is a psychological evaluation report from a clinical psychologist that the Board finds adequate to support a 100 percent disability evaluation. The evaluation is comprehensive in that it reviews the history of illness, medical history, family history, social history, current medications, diagnostic examinations and test results. It also lists symptoms that do coincide with a 100 percent disability rating: Memory loss for names of close relatives, own occupation or own name, intermittent inability to perform activities of daily living, and neglect of personal appearance and hygiene, as well as 70 percent disabling symptoms such as depression affecting the ability to function independently, appropriately, and effectively, deficiencies in family relations, and unprovoked hostility and irritability. The Board finds that throughout the period on appeal the Veteran’s symptoms more nearly approximate a 100 percent rating. The September 2012 assessment described severe symptoms including symptoms such as neglect of hygiene, persistent delusions and complete inability to function in a work environment and indicated these existed since 2008. The July 24, 2017 report is extensive and also supports a 100 percent disability rating might be a better approximation of the Veteran’s current disability picture. There is an approximate balance of positive and negative evidence regarding the Veteran’s PTSD rating being 70 or 100 percent disabling and the Board gives the Veteran the benefit of the doubt. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.