Citation Nr: 21025882 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-40 428 DATE: April 29, 2021 ORDER Entitlement to a total disability rating prior to April 29, 2017, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Prior to April 29, 2017, the Veteran’s PTSD manifested with symptoms that more nearly approximated a total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation of 100 percent prior to April 29, 2017, have been met for the Veteran’s service-connected PTSD. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from October 1986 to March 1987 and from November 1990 to February 1993 including service in Southwest Asia for which he was awarded the Combat Action Ribbon. The case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This claim was previously before the Board in March 2019 and remanded for additional development. Such development has been completed, and the claim is once again before the Board. While on remand, the Veteran was granted an increased evaluation of 70 percent from the date of claim and 100 percent from April 29, 2017, in a June 2020 rating decision by the RO. The issue on appeal has been reframed accordingly. It is noted that applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). As there is a higher evaluation available for the service-connected PTSD, and the increased evaluation did not cover the entire period of appeal, the Veteran’s claim remains in controversy and shall continue to be adjudicated by the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. § Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A veteran 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). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two disability 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. The Veteran's service-connected PTSD is rated as 70 percent prior to April 29, 2017, and 100 percent thereafter. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Because a 100 percent evaluation is the highest rating available for this condition, the appeal since April 29, 2017, is considered fully resolved. As such, the scope of the remaining appeal shall be limited to the time period prior to April 29, 2017, and the discussion that follows shall reflect such. A 70 percent rating is warranted where 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 an inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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, an 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. Initially, the Board acknowledges that the Veteran's increased rating claim was pending before the RO before August 4, 2014, which was the effective date for when the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) was updated to the fifth edition, the DSM-V. It is anticipated that diagnoses of mental disorders will conform to these manuals. The DSM-IV contained Global Assessment of Functioning (GAF) scores, which are set forth on a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). Additionally, the level of occupational and social impairment due to a psychiatric disorder is the primary consideration in determining the severity of a psychiatric disorder for VA purposes and not all the symptoms listed in the rating criteria must be present in order for a rating to be warranted. See Mauerhan v. Principi, 16 Vet. App. 436, 443-44 (2002) (finding that the psychiatric symptoms listed in the rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, and that a veteran may only qualify for a given disability rating 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 (Fed. Cir. 2013). In the present case, the Veteran’s VA treatment records reflect that he ceased mental health treatment prior to the period on appeal, around 2005, following an altercation with another veteran in treatment. He reinitiated treatment around September 2012 due to significantly worsening symptomatology, and following his brother’s referral. In the initial reassessment, the Veteran reported significant sleep impairment, nightmares, communication difficulties, and reliance on alcohol to minimize the symptoms of his PTSD. At that time, he worked by himself as a technician, which accommodated his ongoing PTSD and difficulties interacting with others. He reported a history of multiple physical altercations, but noted that recently he engaged more in verbal altercations. He denied suicidal and homicidal thoughts. In October 2012, members of the Veteran’s family submitted lay statements regarding the worsening of his PTSD. His brother, also a combat veteran, relayed that the Veteran was recently nearly involved in a physical altercation with an employee at a fast food chain. At the time, it was “almost impossible” to calm the Veteran, and that behavior scared his brother. He worried for the Veteran’s physical safety. The Veteran’s wife similarly detailed the worsening of his PTSD, including very intense nightmares, and seeing the “faces of dead people” from his experiences in Iraq. The Veteran had no friends other than his brother, and his wife endorsed feeling “on guard” around him at all times as she never knew how he would react. She stated that the Veteran drank to “keep the ‘ghosts’ away”. Subsequent mental health treatment records reflect a pattern of physical and verbal abuse towards others related to anger and irritability caused by his PTSD. These treatment records also reflect a pattern of paranoid delusions and some auditory hallucinations. The Veteran continued to use alcohol to self-medicate his PTSD symptoms, and he admitted to driving under the influence on multiple occasions. While regular mental health treatment, as well as medication management, aided in alleviating some of the worst symptoms, such improvements were not consistent throughout the period on appeal. Family members submitted additional statements in January 2016 regarding his ongoing symptomatology. The Veteran’s stepfather reported that he was increasingly combative and argumentative. He could be “a little scary” and unpredictable. He was growing more unpredictable and less stable over time. The Veteran’s mother also endorsed a worsening of symptoms. As she reported, the Veteran had very few friends and experienced significant mood swings. He was on the verge of losing his employment, and he verbally abused others around him. He was, as his mother stated, “a scary [individual] to be around.” The Veteran abruptly ceased his mental health treatment around 2015. The Veteran underwent two VA examinations through the period on appeal. While the examiners concluded that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity, these examinations also detailed symptoms consistent with more severe reports found in his ongoing mental health treatments. By way of example, in October 2012, the VA examiner detailed the Veteran’s history of physical and verbal abuse, including towards his wife as recently as a couple of days before the examination, as well as his pattern of driving under the influence of alcohol as recently as the week before the examination. The report also detailed the Veteran’s history of a verbal altercation with a prior coworker that caused him to leave that position, and he only maintained his employment at the time of the examination because he was able to work alone. In January 2016, the VA examination report noted that the Veteran’s family was afraid of him due to his anger and irritability. He spent most of his spare time at home watching television. The Veteran stated that, while he continued to work almost entirely alone for his company, he believed that he was repeatedly passed over for promotions due to his difficulty interacting with others. He also experienced difficulty performing routine activities at work, such as report writing. The examiner found that he was chronically irritable, and often raised his voice at others and threw objects while angry. The Veteran continued to consume alcohol to self-medicate his PTSD symptoms, and he continued to drive while under the influence, to include as recently as the prior weekend. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran’s PTSD more nearly approximated the severity of a 100 percent rating pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. While technically maintaining a job, the Veteran could only do so during this period because he worked primarily alone. Previous employment ended due to the Veteran’s ongoing irritability and anger, which provoked a verbal altercation with a coworker. Even with the ability to work alone, the Veteran was passed over for promotion opportunities as he could not build relationships with his coworkers or clients. Over time, he expressed that his employment became more tenuous, and he was eventually terminated from the position. In this time, the Veteran’s personal life suffered significantly. Despite engaging in treatment, which helped to alleviate some symptomatology, the Veteran was consistently described as “scary” by his family, and he had no friends in this time. He was verbally and physically abusive to others, and, as a consequence of his alcohol abuse, drove under the influence on multiple occasions, which placed himself and others in danger. He separated from his wife repeatedly, and he experienced strained relationships with the rest of his family. Mental health treatment records also document ongoing paranoid delusions throughout the appellate period. Any limited improvements in the severity of his PTSD were not consistent, nor was he able to maintain his mental health treatment plan with regularity. The Board finds that these severe symptoms more closely approximate a 100 percent rating prior to April 2017. Resolving reasonable doubt in favor of the Veteran, a total disability rating is warranted for his service-connected PTSD throughout the period on appeal. Hannah Fisher Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.