Citation Nr: 21025597 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 08-12 139 DATE: April 28, 2021 ORDER The appeal of the claim for an increased rating for traumatic arthritis of the right ankle (right ankle traumatic arthritis) is dismissed. For the period beginning May 8, 2009, the appeal of the claim for an increased rating, in excess of 70 percent, for post traumatic stress disorder (PTSD), is dismissed. For the period prior to May 8, 2009, an increased, 70 percent rating for PTSD is granted. FINDINGS OF FACT 1. On April 2, 2021, prior to the promulgation of a decision in the appeal of an increased rating claim for right ankle traumatic arthritis, the Board received notification from the Veteran, through his representative, that a withdrawal of this appeal is requested, for the period “from September 1, 2007 onward” (the entire appellate period). 2. On April 2, 2021, prior to the promulgation of a decision in the appeal of an increased rating claim for PTSD, the Board received notification from the Veteran, through his representative, that a withdrawal of this appeal is requested, but only for the period beginning May 8, 2009. 3. The severity of the Veteran’s PTSD more nearly approximates an occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking and/or mood. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of an appeal of the increased rating claim for PTSD, for the period beginning May 8, 2009, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a withdrawal of an appeal of the increased rating claim for right ankle traumatic arthritis, for the entire appellate period, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. For the period prior to May 8, 2009, the criteria for an increased, 70 percent disability rating for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In December 2015, the Veteran and his spouse, C.M., testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In April 2016, the Board remanded the case to the RO for further evidentiary development. In a May 2016 rating decision, the RO increased the PTSD disability rating to 70 percent disabling, for the period beginning December 17, 2014. Thereafter, the matter returned to the Board, and in a November 2017 decision, it denied staged rating increases for the service-connected PTSD. Thereafter, the Veteran filed an appeal of the November 2017 Board decision with the United States Court of Appeals for Veterans Claim. In a January 2019 joint motion for partial remand (JMPR), the parties stipulated that a vacateur and remand of the November 2017 Board decision is required because the Board erred when it provided an inadequate statement of reasons and bases for denying the part of the decision that denied the Veteran’s claim of entitlement to an initial evaluation for PTSD, in excess of 30 percent, prior to December 17, 2014, and in excess of 70 percent, beginning December 17, 2014. In a February 2019 order, CAVC vacated and remanded the Board decision. Thereafter, the matter returned to the Board, and in March 2020, the Board remanded the claim for further, additional development, consistent with the CAVC JMPR and order. In a June 2020 rating decision, the RO granted an earlier effective date of May 8, 2009 for the 70 percent disability rating for PTSD. However, since this increase is not representative of a total grant of the benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Dismissal of an Appeal for Increased Rating Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn his appeal of the increased rating claims for: (1) PTSD, for the period beginning May 8, 2009; and (2) right ankle traumatic arthritis, “from September 1, 2007 onward.” See April 2021 Appellate Brief. Thus, there remain no allegations of errors of fact or law for appellate consideration for these two issues. Accordingly, the Board does not have jurisdiction to review the appeal of these increase rating claims, and thus, they are dismissed. 38 U.S.C. § 7104. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). For the period prior to May 8, 2009, the Veteran is currently assigned a 30 percent disability rating for PTSD. He asserts that a 70 percent disability rating is warranted for the service-connected PTSD from June 16, 2005 to May 7, 2009 (an appellate period prior to May 8, 2009). See April 2021 Appellate Brief. The criteria for evaluating an acquired psychiatric disability, including PTSD and depressive disorder, are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130. As a justification for a rating in excess of the currently assigned 30 percent disability rating, an increased 50 percent disability rating is warranted where 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A higher increased, 70 percent rating disability 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 work like setting); and inability to establish and maintain effective relationships. Id. An even higher, 100 percent disability rating requires 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; and, memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442 – 44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). 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 on the basis of social impairment. See 38 C.F.R. § 4.126(b). The Board has undertaken a thorough assessment of this claim and finds that an increased, 70 percent rating is warranted for the Veteran’s service-connected acquired psychiatric disability, for the period prior to May 8, 2009. The reasons and bases follow. In a May 2006 VA examination report, a VA examiner described the functional impairment of the Veteran’s PTSD as “moderate symptoms or moderate difficulty in social, occupational, or school functioning.” This VA examination report notes, in pertinent part, with respect to his PTSD symptoms, that the Veteran reported that he experienced difficulty with sleeping three to four times a week, with nightmares approximately two to three times a week. He also reported having flashbacks during the day, which may occur in response to the sound of helicopters or any loud or unexpected noises, such as fireworks. Further, the Veteran reported having difficulty dealing with crowds, as he is uncomfortable being in crowded situations. Additionally, the Veteran reported that he may show irritability for no reason at all, and for the “slightest little thing”; he frequently withdraws from others, including his own family and co-workers. The Veteran also reported that at least twice, in his twenty-three year career, he blew up at work, engaged in verbal abuse, and a threatening posture towards a supervisor. On mental status examination, the VA examiner observed that the Veteran was appropriately dressed for the weather and adequately well groomed; he was alert, oriented in all spheres; he was able to effectively relate by not only responding to questions, but also by engaging in spontaneous conversation. The VA examiner also observed that the Veteran’s overall behavior and demeanor were appropriate; his thought processes were logical, goal directed, and appropriate in speed; his thought content was free of any evidence of delusional ideations, hallucinatory perceptions, difficulty with impulse control, including suicidal/homicidal ideation, or any suggestion of ritualistic behavior beyond what might be seen with PTSD. In an assessment of the Veteran’s PTSD diagnosis, the VA examiner found that he had ongoing difficulty with sleep at night; flashbacks during the day; difficulty with emotional expression with others; exaggerated startled response; hypervigilance; easy irritability, which requires him to give himself a “time out” to avoid verbal or physical confrontations; efforts to avoid any stimuli that may remind him of his service in Vietnam; and efforts to avoid interacting in the general public. However, other, additional probative evidence, including medical treatment records and/or reports and buddy statements suggest a more severe functional impairment of the Veteran’s PTSD. For example, treatment records indicate that the Veteran sleeps in a separate room from his wife, and that his wife expressed her concern about the Veteran’s aggressive behavior while he is sleeping. See e.g. November 2006 Social Work Outpatient Note (reflecting that the Veteran reported concerns about his thrashing and kicking his wife in the ribs, with no recollection of the incident and the dreams associated with the thrashing); see also October 2008 Social Work Outpatient Note; see too, December 2008 Social Work Outpatient Note. An October 2008 social work outpatient note reflects that on one occasion, the Veteran chased the Veteran’s wife out of their bed, but then told her that it was safe to go back to bed, and a week prior to this incident, he experienced a panic attack, which commenced at work, and ended at home. In support of his claim, the Veteran has submitted buddy statement from family members. Specifically, in a December 2019 buddy statement, the Veteran’s wife, C.M. reported, that around the time he filed his claim for PTSD, in 2005, the Veteran thrashed around in bed, twitched a lot, talked out, and at times, he thrashed around and hit her, and the Veteran never had a recollection of what he did. Additionally, she reported that the Veteran’s nightmares worsened, and on one night, he woke her up, and she found him “on all fours hovered over [her] like he wanted to get violent with her or something” and he pushed her out of the bed and chased her out of the bedroom. In another December 2019 buddy statement, the Veteran’s son, J.M., reported, , that when he was in elementary school, he woke up at night to his mother shouting, with the sound of footsteps running through the house. He explained that the following morning, he learned that his father, the Veteran, woke up in the middle of the night and started chasing his mother around the house. He further stated that after this incident, his parents never slept together in the same room, even up to the present day. He also recalled a period when he was child, when he spent a good amount of time outdoors, and that on one occasion, he walked behind his father and shouted, in an attempt to scare him. He explained that to his surprise, his father turned around and gave him a swift shove with one arm, which sent him “sailing across the garden” and that the Veteran had a look like he wanted to kill. Additionally, the Veteran has also submitted a psychiatric opinion from a private psychiatrist, Dr. M.L.C, in support of his increased rating claim. In this December 2019 medical opinion, Dr. M.LC. explained that at work, the Veteran struggled with intractable PTSD symptomatology, leading to behaviors, actions, and symptoms that should have had him removed from the workplace, due to mental illness, which included threatening behavior and overt violence. Dr. M.L.C. explained that since his separation from service, the Veteran has been extraordinarily irritable, angry, and has manifested significant verbal aggression. He noted that the Veteran described his self-destructive behavior, since his active duty service, including suicidal ideation and difficulty within workplace environments; the Veteran consistently reported being hypervigilant; he has manifested an exaggerated startled response; his sleep has altered significantly with initial and terminal insomnia; the Veteran has experienced these symptoms for decades; and that they have impaired every sphere of his life, including occupational, social, and familial functioning. Dr. M.L.C. clarified that these symptoms are not mimicked by any other disease process. Dr. M.L.C., opined that the Veteran’s symptoms have been present since his return from active service, and that they had become very prominent and disabling by the time he commenced regular treatment in 2005. Overall, for the period prior to May 8, 2009, the frequency, severity, and duration of the Veteran’s psychiatric symptoms more closely approximate an occupational and social impairment with reduced reliability and productivity, due to symptoms, including and not limited to, flashbacks; difficulty with emotional expression with others; exaggerated startled response; hypervigilance; chronic sleep impairment; unprovoked periods of irritability; avoidance; and difficulty in adapting to stressful circumstances (including work or a work like setting). Particularly, the Board acknowledges that the Veteran is service-connected for PTSD, at a 70 percent disability rating, effective May 8, 2009. In this regard, the Board finds that Dr. M.L.C.’s conclusion from his December 2019 opinion that the Veteran’s symptoms have been present since his return from active service is persuasive, and similarly and equally, support a consistent, 70 percent disability rating for the period prior to May 8, 2009. Furthermore, among other factors that support this 70 percent disability rating, include medical and lay evidence which reflect a history of violent behavior towards his wife during his sleep, of which he can never recall the morning after, since approximately 2005; his turbulent, volatile history of his interactions with his coworkers, at the time he was employed, prior to May 8, 2009. Further, even when these three factors are considered together, collectively, the evidence subtly suggest that the Veteran is also a danger to himself and others. (Continued on the next page)   Although an increased 70 percent rating is warranted, the Board finds that an even higher, 100 percent disability rating for total occupational and social impairment is not shown, and thus, an increased 100 percent disability rating is not warranted. The medical evidence does not show that the frequency, severity, and duration of the Veteran’s psychiatric symptoms are similar to or akin to the examples listed in the criteria for a 100 percent disability rating. Specifically, for example, the Veteran does not have a history of hospitalizations due to his psychiatric disability. Additionally, the evidence does not show that the Veteran has symptoms that severely impact his activities of daily living, such as, for example, a gross impairment in thought processes or communication; an intermittent inability to maintain minimal personal hygiene; disorientation to time or place; and/or severe memory loss, to the degree and magnitude of forgetting close relatives’ names or even his own name. It is important to note that the Veteran does not assert that the severity of his PTSD is characterized by a total occupational and social impairment. Rather, and specifically, the Veteran asserts that a 70 percent disability rating should be granted for his PTSD, from June 16, 2005 to May 7, 2009. See April 2021 Appellate Brief. Therefore, based on the foregoing reasons and bases, an increased, 70 percent disability rating for service-connected PTSD is granted, for the period prior to May 8, 2009. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.