Citation Nr: 21025925 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-12 335 DATE: April 29, 2021 ORDER An initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to February 21, 2014 is denied. A 100 percent rating for posttraumatic stress disorder from February 21, 2014 (PTSD) is granted. FINDINGS OF FACT 1. Prior to February 21, 2014, the Veteran was working full time but with occupational and social impairment in most areas. 2. From February 21, 2014, the Veteran’s PTSD is shown to most closely approximate manifestations of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent PTSD prior to February 21, 2014 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411 (2020). 2. The criteria for a rating of 100 percent for PTSD from February 21, 2014 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the Army National Guard from July 2004 to November 2004 and on active duty from June 2006 to October 2007, and from July 2011 to May 2012 including service in Southwest Asia. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision that granted service connection for PTSD and assigned a 70 percent rating, effective June 14, 2014. In January 2015, the RO granted an initial effective date of June 14, 2013, the date of receipt of the application to reopen the claim. In February 2021, the Veteran testified at a video conference hearing before the undersigned; a transcript is in the record. The RO previously granted a TDIU effective March 23, 2016 (the date the Veteran submitted a formal claim for TDIU). Notably, the effective date of March 23, 2016 for TDIU did not represent a full grant of benefits sought. However, as this decision grants an increased rating of 100 percent for PTSD, effective February 21, 2014, the matter of an earlier effective date for TDIU after that date is now considered moot. A TDIU from June 13, 2013 to prior to February 21, 2014 is not warranted as the Veteran was working full time. A 100 percent rating for PTSD Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. PTSD is rated under Code 9411 and the General Rating Formula for Mental Disorders, which provides for a 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating 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); inability to establish and maintain effective relationships. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The RO received the Veteran’s application to reopen a previously denied claim for service connection for PTSD in June 2013. VA records starting in December 2014 show treatment for PTSD and a severe alcohol use disorder in a VA domiciliary in which she had resided since September 2014. In January 2015, a psychologist noted Veteran was dressed casually but neatly. Grooming and hygiene were intact. Mood was agitated, affect was broad and the Veteran calmed considerably over the course of the session. Thought processes were linear. Speech was normal and eye contact was good. Interpersonally, the Veteran was well related. Insight was good, judgment intact. No suicidal or homicidal ideations were reported. A January 2015 psychology assessment noted the Veteran was experiencing clinically significant symptoms of PTSD including intrusive experiences related to her trauma, disturbing dreams, self-blame, problems with concentration and sleep, and feeling distant from others. In December 2015 correspondence, the Veteran’s sister described the Veteran’s symptoms of substance abuse, and generally described the Veteran’s inability to perform activities of daily living, as well as what can be summarized as grossly inappropriate behavior with respect to actions surrounding the Veteran’s substance abuse. The letter also described the Veteran’s temperament and behavior as withdrawn and easily explosive. In a January 2016 PTSD Disability Benefits Questionnaire (DBQ), a VA contract psychologist diagnosed PTSD and alcohol use disorder (related to PTSD). The psychologist noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood were noted. Symptoms were depressed mood, anxiety, suspiciousness, panic attacks (less than weekly), near continuous depression, chronic sleep impairment, impairment of short and long term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The examiner noted the Veteran reported leaving her part time barista job due to anxiety and irritability. The Veteran also reported a history of recurring depression that began at aged 17, a history of self-harm and suicidal ideation, and a history of binge eating. Although she denied any current suicidal ideation, her results suggests she is prone to experiencing recurrent thoughts related to suicide and may be at risk for displaying impulsive suicidal gestures. In March 2016, the Veteran was dismissed from the domiciliary for recurrence of alcohol abuse. A psychologist also noted non-compliance with medication. There are no further records of VA care in the file. At the February 2021 video conference hearing, the Veteran testified that she was taking medication for PTSD, attending counseling, and court ordered anger management group therapy. She reported working full time as a hospital emergency room technician up to February 2014 and after moving to another state, working part time as a barista until August 2014. The Veteran testified to experiencing homelessness. The Veteran expressed difficulty with intimate relations, and testified that she expressed difficulty engaging in normal daily activities such as attending school without vomiting. The Veteran also described a violent altercation she had with her sister while she was intoxicated. The Veteran testified that her PTSD symptoms had gotten worse since she was last examined in 2016. The Veteran’s PTSD is initially rated 70 percent disabling, and the analysis turns to whether a rating in excess of 70 percent is warranted for the pendency of this appeal. The January 2016 examiner found that the Veteran’s psychiatric disability results in occupational and social impairment with deficiencies in most areas, depressed mood, anxiety, suspiciousness, panic attacks (less than weekly), near continuous depression, chronic sleep impairment, impairment of short and long term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. Notably, the Veteran does not demonstrate all or most of the criteria listed for a 100 percent rating under Code 9411. However, as noted above the list of criteria in the General rating formula is not meant to serve as an exhaustive list, but merely examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Upon review of the Veteran’s overall reported symptoms, as well as the overall disability picture presented on examination, the Board finds that the overall disability picture described is most closely consistent with the criteria for a 100 percent rating. See 38 C.F.R. § 4.3. The Board places weight on her reports of working full time in a hospital up to February 21, 2014 notwithstanding occupational and social impairment in most areas. Since that time, she had periods of homelessness, residence in an VA domiciliary with limited success at treatment particularly with relapse of severe alcohol abuse associated with PTSD. The Board also placed weight on the reports of grossly inappropriate behavior in the form of excessive intoxication, found to be a response to PTSD, physical attacks on a twin sister, and severe anxiety to the point of vomiting. Accordingly, the Board finds that a 100 percent rating is warranted for PTSD, effective from the end of the last period of full time employment on February 21, 2014. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.