Citation Nr: 21025911 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-43 199 DATE: April 29, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s PTSD more nearly approximated the criteria for a 70 percent rating, causing occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from August 1966 to August 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which granted service connection for PTSD and assigned a 30 percent rating effective June 30, 2014. In an October 2015 Decision Review Officer (DRO) decision, the rating for PTSD was increased to 50 percent effective June 30, 2014.   This matter was previously before the Board in August 2018 and was remanded. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). I. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of 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, as well as 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. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires: (1) a determination of the date of the receipt of the claim and (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Hazan, 10 Vet. App. at 521. Entitlement to an Increased Disability Rating for PTSD For the entire period on appeal, the Veteran is in receipt of a 50 percent disability rating for PTSD effective June 30, 2014, under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a 50 percent rating is assigned when a veteran’s psychiatric disability causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation 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. 38 C.F.R. § 4.130. The maximum schedular rating of 100 percent 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all 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). Symptoms listed in the General Rating Formula 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, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Id. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Id. Turning to the evidence, the Veteran maintains that his psychiatric disability is more severe than has been assessed. After a thorough review of the record, the Board agrees and finds that a 70 percent disability rating is warranted for the entire period on appeal. In September 2014, the Veteran was provided a VA examination to evaluate the nature and severity of his PTSD. At this time, the Veteran reported that he has sleep disturbances with dreams related to Vietnam that wake him up in a panic. He also reported having memories of Vietnam experiences, especially when exposed to reminders of the event. He reported feeling guilty all of the time and endorsed feelings of hopelessness, helplessness, and worthlessness. He also acknowledged a history of suicidal ideation and indicated that he had a hypothetical plan to shoot or drown himself several weeks prior. Additionally, he indicated that he was terminated from his prior job in sales three years earlier because he did not get along very well with others. However, the Veteran reported that he has been married to his wife since 1968 and has a great relationship with her and their daughter. He also reported that he recently reconnected with a long-term friend and that he enjoys hunting and fishing. The Veteran’s wife also discussed the Veteran’s symptoms during this examination. She reported that his mood is up and down with a lot of highs and lows. She characterized the highs as happy and glad in the moment. She characterized the lows as withdrawn, not engaged in important things. She also reported that the Veteran has difficulty getting along with authority figures. The Veteran’s mental status was normal with respect to orientation, speech, and memory. However, the examiner noted that the Veteran presented as moderately irritable, annoyed, and hostile at times in response to questions. The Veteran was guarded and vague in his answers at times. The examiner noted symptoms of depressed mood and chronic sleep impairment. She diagnosed the Veteran with PTSD and concluded that the Veteran’s symptoms cause occupational and social adjustment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. While the Veteran has engaged in minimal treatment for his PTSD, his symptoms are documented across a variety of treatment settings. In September 2015, he presented with a positive PTSD screening due to reports of nightmares, avoiding situations or trying not to think about his trauma, and feeling constantly on guard, easily distracted, and numb or detached from others, activities, and surroundings. The Veteran declined a referral for mental health services, and it was noted that he would be treated by primary care. The Veteran also reported PTSD symptoms during the course of orthopedic treatment. During visits in February 2017, he complained of memory loss, insomnia, depression, and anxiety. Mental status examinations revealed that he was alert and oriented with an appropriate mood and affect. Additionally, the Veteran’s wife submitted a letter on behalf of the Veteran’s claim in August 2017. At this time, she reported that the Veteran’s life has been a struggle with both physical and mental issues. She indicated that the Veteran has always had a sleep disorder. She further reported that the Veteran tells her that the only thing keeping him alive is her and their daughter. In 2018 and 2019, complaints of memory disturbances were documented during primary care, cardiology, and orthopedic treating visits. The Veteran was seen by primary care for these symptoms in July 2019. At this time, he reported that he often feels disoriented to time and place. He also complained of increased irritability with some decline in his ability to focus and concentrate. He presented with fair insight, fair judgment, and memory deficits. Otherwise, his mental status was normal with good eye contact, normal speech, and logical thought processes. Additionally, he reported that he gets depressed at times and has anxiety a few times a week. He further reported that he needs medication to help with sleep and nightmares and that he has passive thoughts about suicide. In September 2019, the Veteran was afforded another VA examination to assess the nature and severity of his PTSD. However, he declined the examination, stating that he did not want to go through another initial PTSD examination and have to talk about his stressors again. Several months later, the Veteran underwent a neurological consultation to discuss his cognitive difficulties. The consultation was performed in November 2019, at which the Veteran appeared anxious and easily distractable. He interrupted the neurologist several times asking personal questions. He denied having memory problems, but he displayed deficits on examination. Notably, he could not remember who the U.S. fought in World War II or who ran against President Trump in the 2016 election. His mental status was alert and he could count in serials of seven and follow a three-step command, but he displayed limited attention and concentration with the examiner needing to repeat his questions. The Veteran’s thinking was also concrete with respect to proverb interpretation. The neurologist noted that it was difficult to evaluate the cognitive status of the Veteran due to his denial of symptoms, limited cooperation, and attention. He concluded that the Veteran may have neurodegenerative disease or mild cognitive symptoms and longstanding behavioral deficits that could best be assessed by psychiatry. Based on the above evidence of record, the Board concludes that a 70 percent rating, but no higher, is warranted for the entire period on appeal, and that a higher rating than 70 percent is not warranted at any time during the appeal period. The September 2014 VA examiner only assessed the Veteran with mild or transient symptoms causing occupational and social impairment and documented symptoms of depressed mood and sleep impairment. However, the Veteran and his wife reported additional symptoms, including nightmares, memories of Vietnam when exposed to reminders, suicidal ideation, mood lability, and difficulty getting along with others. Additionally, the Veteran presented as guarded, vague, irritable, annoyed, and hostile at times in response to questions. These symptoms are more closely aligned with a finding of occupational and social impairment with deficiencies in most areas, which corresponds to a 70 percent disability rating. Symptoms documented in treating records include chronic sleep impairment, nightmares, passive suicidal ideation, anxiety, depression, mood lability, difficulty with focus and concentration, feelings of hopelessness, helplessness, worthlessness, and guilt, avoidant behaviors, and feeling on guard, easily distracted and numb or detached. Memory disturbances were also documented during primary care, cardiology, and orthopedic visits in 2018 and 2019. Additionally, the Veteran presented to a neurology consultation with significant cognitive deficits in November 2019. At this time, he was difficult to evaluate due to limited attention and cooperation. He was anxious and easily distractible. He exhibited deficits in long term memory and concrete thinking with proverb interpretation. These records also demonstrate that the Veteran’s symptoms cause deficiencies in the areas of work, family relations, judgment, thinking, and mood. The Veteran reported that he was terminated from his last job, which was in sales, because of difficulty getting along with others. Additionally, his wife reported that his moods are up and down with a lot of highs and lows. The Veteran has presented as irritable, annoyed, and hostile in response to questions during the September 2014 VA examination. The Veteran was also uncooperative during a neurological visit in November 2019. Additionally, the Veteran complained of cognitive deficits during treating visits in 2018 and 2019. He was evaluated for these deficits by a neurologist in November 2019, at which time he displayed problems with attention, concentration, and memory. Accordingly, the Board concludes that the preponderance of evidence supports a finding that the Veteran’s symptoms more nearly approximated the criteria for a 70 percent disability rating.  The Board also finds, however, that a rating greater than 70 percent is not warranted at any time during the period on appeal. Notably, there is no evidence on record that the Veteran experiences 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, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. The Veteran has been married to his wife since 1968 and maintains a good relationship with her and their daughter. As of September 2014, he was engaging in activities such as hunting and fishing. Furthermore, his mental status has been alert, and he has displayed an appropriate mood and affect in most of his treating visits throughout the relevant period. Even when he was seen for cognitive deficits in November 2019, there is no indication that the Veteran was disoriented to time or place or experienced memory loss for close relatives, own occupation, or own name. He presented as alert with an ability to follow three step commands and count in serials of seven. Additionally, he told the neurologist that he is able to perform his activities of daily living independently and drive with no issues. This evidence demonstrates that the Veteran does not have total social and occupational impairment. Thus, the Board finds that a rating higher than 70 percent is not warranted. In sum, the Board concludes that a 70 percent rating is warranted for the period beginning on June 30, 2014.  However, the preponderance of evidence is against a finding that a rating greater than 70 percent is warranted at any time during the appeal period.  Accordingly, a 70 percent rating, but no higher, is granted for the period beginning on June 30, 2014.  GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.