Citation Nr: 21025912 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-31 791A DATE: April 29, 2021 ORDER An initial rating of 70 percent for service-connected posttraumatic stress disorder (PTSD), prior to January 17, 2018, is granted. FINDING OF FACT For the appellate period prior to January 17, 2018, the Veteran’s service-connected PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as impaired impulse control, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships. CONCLUSION OF LAW For the appellate period prior to January 17, 2018, the criteria for an initial rating of 70 percent, and no more, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1986 to July 1991. In January 2018, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In May 2018, the Department of Veterans Affairs (VA) Board of Veteran’s Appeals (Board) granted entitlement to an initial 50 percent rating for service-connected PTSD, effective October 5, 2009, put into effect by an August 2018 rating decision of the VA Regional Office (RO). By an August 2019 rating decision, the RO granted a 100 percent rating for the Veteran’s service-connected PTSD, effective January 17, 2018. In January 2020, the Board denied entitlement to an initial rating in excess of 50 percent for service-connected PTSD, prior to January 17, 2018. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2020 Joint Motion for Remand (JMR) filed by the parties and an October 2020 Court Order, the Court has remanded the claim back to the Board. Entitlement to an initial rating in excess of 50 percent for service-connected PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal concerns the initial evaluation assigned a service-connected disability, as is the case as to the issue of entitlement to an initial rating in excess of 50 percent for service-connected PTSD, prior to January 17, 2018, VA assesses the level of disability from the effective date of service connection. See Fenderson v. West, 12 Vet. App. 119, 125 (1999); 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 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. See Fenderson, 12 Vet. App. 119; see also Hart, 21 Vet. App. 505. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found, a practice known as “staged” ratings. In making all determinations, the Board must fully consider the lay statements of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has reviewed all of the evidence in the Veteran’s claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. The Board has considered the Veteran’s claims and decided entitlement based on the evidence. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In this regard, the Board has considered that the Veteran has reported that her service-connected disabilities, including PTSD, impact her ability to work and has described such during the appeal. The Veteran bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. Throughout the appellate period, beginning with the October 5, 2009, claim, the Veteran’s PTSD has been evaluated under DC 9411 for rating PTSD. As noted, by an August 2019 rating decision, the RO granted a 100 percent rating for the Veteran’s PTSD, effective January 17, 2018. Thus, as the Veteran is already in receipt of a 100 percent rating for PTSD as of January 17, 2018, the Board need only consider, and the entire appellate period is defined by the inquiry as to whether an initial rating in excess of 50 percent for service-connected PTSD is warranted from October 5, 2009, the effective date of service connection, until January 16, 2018, the date prior to the date upon which the 100 percent rating was in effect. Under DC 9411, in pertinent part, a 50 percent rating is warranted for PTSD where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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, and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for PTSD when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. A 100 percent rating is warranted for PTSD if 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; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9411. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the ‘frequency, severity, and duration’ of a Veteran’s symptoms ‘play an important role’ in determining the disability level). Accordingly, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. In an October 2009 statement, the Veteran reported that she was always on guard, that she was paranoid, hypervigilant, critical, and demanding and had difficulty with trust, and could be hostile if attacked or provoked. During a hearing before a Decision Review Officer (DRO) at the RO in January 2011, the Veteran complained of anxiety and tension, and difficulties serving as a police officer. In a January 2010 DBQ, the Veteran reported current therapy, with good to fair results, and worsening symptoms since 2009. She reported that she left her prior job as a police officer because she was too anxious regarding security issues, that she was always watching her back and did not want to crack up, so she left. She complained of nightmares and some problems thinking and concentrating, and reported that she was intolerant, kept weapons by her bed, had increasing memory problems, and could not watch military themed movies. She reported that she was close to her family of origin and had a domestic partner of years, with difficulty with trust and control issues. She reported that she had a variety of friends, worked out, played video games, cooked, used her computer, and liked to travel but found too many places too dangerous. She denied a history of violence or assaultiveness or suicide. Mental status examination was unremarkable, she was alert and oriented in all spheres, she was able to maintain minimum hygiene, and she was clean and casually dressed. She demonstrated normal psychomotor activity, normal speech, a cooperative attitude, normal affect, a good mood, normal memory, normal attention, normal thought processes and content, normal insight, normal judgment, above average intelligence, and good impulse control, without delusions or hallucinations, inappropriate behavior, obsessions or ritualistic behavior, panic attacks, homicidal or suicidal ideation, or episodes of violence. The only issues cited by the examiner were mild impairment of immediate memory, moderate problems with shopping, traveling, and driving, and a concrete interpretation of proverbs. She denied depression as a serious issue and reported that she felt anxious “a lot.” The examiner described the Veteran’s PTSD symptoms as such manifested by an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD symptoms, but generally satisfactorily functioning, with routine behavior, self-care, and conversation normal. In a December 2012 DBQ, the examiner found that the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity. The Veteran reported that she had been married for one year, and that such was “pretty good.” She reported that she had contact with her family of origin, although she reported that her relationship was not as good as she would like; and that her family told her that she can be too forthright, controlling, overly sensitive, and needs things a part way. She reported that she had a small number of close friends and socializes occasionally, that she likes to swim, and that she works full-time. She complained of anxiety, suspiciousness, fluctuations in motivation and sleep patterns, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and nightmares that she does not recall, and reported that her mood at work is high-strung and intense, and at home is sensitive and low energy. She denied homicidal or suicidal ideation. In a June 2014 evaluation conducted by the Social Security Administration (SSA), the examiner reported that the Veteran noted that she was going through a divorce, that her spouse was leaving her. She complained of anxiety attacks, feeling overwhelmed, and experiencing episodes of psychical symptoms on a yearly basis, far more frequently in the recent months, that she had been told had to do with her service in Desert Storm. The examiner noted her treatment for poor sleep, nightmares, anxiety attacks, poor impulse control, anger issues, and mood swings. The Veteran reported that she could not deal with people, that her family has told her that she is difficult to talk to and reason with, and that she was laid off in 2013 because she was not collaborative. She reported that she had only two friends because it was difficult to maintain positive relationships with others as she could not control what she said, that she did not think before she spoke. Her speech was sometimes erratic and marked by an exaggerated tone, her thought processes were marked by a flight of ideas and inflamed self-esteem, her affect was extremely labile, and she denied delusions and hallucinations. In a September 2014 statement, one of the Veteran’s VA treatment providers reported the ways in which the Veteran’s symptoms interfered with her occupational functioning. The treatment provider noted the Veteran’s reported intrusive memories interfering with her productivity and concentration and discussed that her distress also led to increased irritability and hypervigilance with often interfered with interpersonal funning. The treatment provider reported that all of her symptoms led to various kinds of relationship difficulties in work-related settings such as the establishment and maintenance of interpersonal relationships, effective resolution of interpersonal conflict, and effective interpersonal communication. During a May 2015 VA examination conducted to evaluate the Veteran’s employability, she reported that she worked as a police officer in Boston until 2008 when she left due to stress. She reported that she was unemployed, that she had lost her most recent job teaching computer science in 2013. She asserted that she was counseled for the way she communicated with colleagues and supervisors; and asserted that she was laid off because she spoke out when people she believed were worthy of promotions were being overlooked and filed a discrimination grievance. She reported that she had problems with interpersonal relationships and had several confrontations with employers. The examiner opined that the Veteran’s service-connected PTSD caused interference in her ability to function in a worklike setting due to difficulty establishing maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. In a November 2017 letter, one of the Veteran’s VA treatment providers asserted that the Veteran’s more prominent symptoms of PTSD include distress in the context of crowded places or unfamiliar surroundings, which can cause increased irritability, hypervigilance, and suspiciousness and often compromise her objectivity. She reported that these symptoms interfere with productivity and concentration and have led to various kinds of relationships difficulties and difficulties in work-like settings. Based on the above, the Board finds that during the appellate period, from October 5, 2009, to January 16, 2018, the Veteran’s service-connected PTSD warrants an initial 70 percent rating, and no more. The clinical and lay evidence discussed herein supports the conclusion that her disability was manifested by manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as impaired impulse control, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships, as is contemplated by a 70 percent rating under the regulatory criteria. 38 C.F.R. §§ 4.126, 4.130, DC 9411. As discussed above, there is evidence of impaired impulse control, or symptoms of the same severity, frequency, and duration; the Veteran reported, in October 2009, that she could be hostile if attacked or provoked and the SSA examiner, in June 2014, noted treatment for poor impulse control and anger issues. There is evidence of difficulty in adapting to stressful circumstances, or symptoms of the same severity, frequency, and duration; the VA treatment provider, in the September 2014 and November 2017 statements, asserted that the Veteran’s symptoms led to difficulties in work-related settings, and the VA examiner, in May 2015, found interference in her ability to function in a worklike setting due to difficulty establishing maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. There is also evidence of the inability to establish and maintain effective relationships, or symptoms of the same severity, frequency, and duration; the Veteran reported, in her June 2014 SSA evaluation, that she was going through a divorce, that her spouse was leaving her, that she could not deal with people, that her family told her that she is difficult to talk to and reason with, that she was laid off she was not collaborative, and that she had only two friends because it was difficult to maintain positive relationships with others as she could not control what she said, that she did not think before she spoke. There is no evidence or assertion, however, that the Veteran’s disability was manifested by 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; memory loss for names of close relatives, own occupation or own name, or symptoms of the same severity, frequency, and duration as is contemplated under the regulatory criteria for a 100 percent rating. 38 C.F.R. §§ 4.126, 4.130, DC 9411. As noted, in the June 2014 evaluation, the SSA examiner found that the Veteran demonstrated thought processes that were marked by a flight of ideas and inflamed self-esteem, and the Veteran’s VA treatment provider, in September 2014, noted difficulties with effective interpersonal communication. However, no examiner or treatment provider has found gross impairment in thought processes or communication and the Veteran has not described such, or symptoms of the same severity, frequency, and duration. While the VA examiner, in January 2010, noted the Veteran’s complaint of increasing memory problems, they reported that mental status examination revealed only mild impairment of immediate memory; no examiner or treatment provider has found memory loss severe such that the Veteran could not recall names of close relatives, own occupation, or own name, and the Veteran has not described symptoms of the same severity, frequency, and duration. Further, the Veteran’s PTSD symptoms did not cause total social and occupational impairment prior to January 17, 2018. She was employed until October 19, 2013. And with respect to social impairment, on VA examination in January 2010 she reported that she was close to her family of origin, had a domestic partner of years, and had a variety of friends. On VA examination in December 2012, she reported that she had been married for one year, and that such was “pretty good.” Although the relationship was not as good as she would like, she still had contact with her family of origin, had a small number of close friends, and socialized occasionally, that she likes to swim. SSA records showed that in June 2014 the Veteran was going through a divorce. It appears that she still had contact with her family, though they told her that she is difficult to talk to and reason with; she also still had two friends. In November 2017, one of the Veteran’s VA treatment providers noted that the Veteran’s more prominent symptoms of PTSD had led to various kinds of relationships difficulties; however, there was no indication of total social impairment at that time. In summary, the preponderance of the evidence reflects that during the appellate period prior to January 17, 2018, beginning on October 5, 2009, the Veteran’s service-connected PTSD symptoms approximate the criteria for an initial 70 percent rating; the claim of entitlement to an initial rating in excess of 50 percent for service-connected PTSD is granted. 38 U.S.C. § 5107(b). However, the criteria for a 100 percent rating were not met. The issue of entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) is part and parcel of a Veteran’s increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in a July 2015 rating decision the RO granted a TDIU, effective October 10, 2013, the first day after the Veteran’s last day of full-time employment. While such was not in place during the entire appellate period, related to the Veteran’s claim of entitlement to an initial rating in excess of 50 percent for service-connected PTSD, since October 5, 2009, and prior to January 17, 2018, decided herein, there is no basis for the award of a TDIU prior to October 10, 2013, while the Veteran was employed. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.