Citation Nr: 21028369 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-11 155 DATE: May 11, 2021 ORDER A 50 percent disability rating, but no higher, is granted for posttraumatic stress disorder (PTSD) prior to February 17, 2019, subject to the laws and regulations controlling the disbursement of monetary benefits. A 70 percent disability rating, but no higher, is granted for PTSD from February 17, 2019, subject to the laws and regulations controlling the disbursement of monetary benefits. FINDINGS OF FACT 1. Prior to February 17, 2019, the Veteran's PTSD caused occupational and social impairment with effects including or approaching reduced reliability and productivity. 2. Since February 17, 2019, the Veteran's PTSD has caused occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. Prior to February 17, 2019, the effects of the Veteran's PTSD have met or closely approximated the criteria for a 50 percent disability rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.130. 2. Since February 17, 2019, the effects of the Veteran's PTSD have met or closely approximated the criteria for a 70 percent disability rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1988 to October 1988 and from November 1990 to April 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. 1. Entitlement to higher ratings for PTSD Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran's PTSD is currently rated at 30 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411. That diagnostic code provides that PTSD should be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. Under the General Rating Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for 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 (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 assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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. A 100 percent rating is assigned for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to 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 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) the Federal Circuit stated that "a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that 38 C.F.R. § 4.130 "requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Veteran contended through his representative that his PTSD symptoms more nearly approximately a 50 percent rating. For the reasons below, the Board finds that prior to February 17, 2019, the Veteran's PTSD more nearly approximate a 50 percent rating and a 70 percent rating from that date. In an August 2016 VA initial PTSD examination, the examiner indicated that the Veteran met a PTSD diagnosis under DSM-5. The examiner noted that his PTSD was related to an in-service stressor where the Veteran reported several instances of sexual assault by a superior. He stated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran's PTSD symptoms were depressed mood, anxiety, and chronic sleep impairment. The Veteran stated that pressure from his job and marriage exacerbates his depressed mood. He reported that he had suicidal ideation in the past after his father died. The Veteran stated that he did not have current suicidal ideation and there was no history of suicide attempts. He stated that he averages four hours of sleep a night and wakes up during the night. He also endorsed anxiety and irritability and he secluded himself when he feels irritable. VA mental health records dated in October 2016 reflect that the Veteran has had stressors both at home and at work, which he described as ongoing interpersonal conflict.VA treatment records dated in January 2017 reflect that the Veteran is struggling with his PTSD mood, where he reports that "I've been having a pretty rough time." November 2017 VA treatment records reflect that the Veteran has been struggling with sleep loss and general mood challenges. He stated that he is very uncomfortable in crowds and prefers to spend time alone. He said that he has no friends or regular social activities. He reports that he believes as he gets older, his symptoms get worse. He told the clinician that he thinks his wife may leave him once their son graduates high school. In a February 2018 VA PTSD examination, the examiner noted the Veteran's PTSD. The Veteran was also noted to have major depressive disorder (MDD). The symptoms attributable to his PTSD were recurring and distressing memories/dreams related to trauma, and avoidance of trauma-related stimuli; symptoms depressive attributable to his MDD were significantly depressed mood, anhedonia, feelings of worthlessness, and suicidal ideation and attempt. Overlapping symptoms were sleep disturbance, irritability, and social isolation/detachment. The examiner stated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He stated that it was not possible to differentiate what portion of occupational and social impairment is caused by each mental disorder. The Veteran lived with his wife and teenage son, and he stated that often keeps to himself so as to "keep down confusion" and that he and his wife only "sometimes" get along. The Veteran's wife stated that he does not spend much time with his family, but said he was making more of an effort to talk to his son, grandchildren and his mother. He had occasional contacts with his siblings. The Veteran stated that he does not socialize much. Regarding employment, the Veteran reported difficulties with work, partly because his supervisor rebukes him for lack of focus/following up on tasks. He reported that he was written up four months prior for completing the wrong project as he misheard what he was asked to do. In addition, he stated that his co-workers tease him about his hearing problems. Occasionally, he will ask to leave work early when he feels angry in order to avoid confrontations. The examiner also noted the other symptoms attributable to his PTSD and MDD. The Veteran stated that he would get depressed in part because of his chronic pain and said "he feels worthless sometimes because he knows his wife is unhappy in their relationship." He acknowledged that he had a short temper and that a trigger for this anger is when co-workers tease him about his hearing. He also reported that he experiences intrusive thoughts about his military trauma, and that he sleeps about four hours a night with fairly frequent nightmares. The Veteran indicated that he has memory lapses, often temporarily forgetting tasks that he was about to undertake. In the February 2019 VA examination report, the examiner noted the Veteran's PTSD. He stated that the Veteran won't attend ballgames if someone sits behind him and he checks his doors four to five times a day. He reportedly forgets medications, family birthdays, names, what is going on, and he misplaces things. The examiner opined that the Veteran had occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The PTSD symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work/workalike setting, suicidal ideation, obsessional rituals which interferes with routine activities, impaired impulse control, and persistent danger of hurt self or others. The examiner stated that the Veteran would not be capable of managing his finances. The Veteran reported that he felt he cannot be a man/husband to his wife because of the in-service sexual assault. The examiner remarked that the Veteran thinks about shooting himself or driving his car into a tree and fears "doing something stupid." He reported being angry about his life and cries daily; he has chronic sleep impairment and wakes up from nightmares related to his military service; he avoids crowds out of alertness. At his August 2020 Board hearing, the Veteran testified that he has had suicidal thoughts, and that he thinks about the stresses in work and with his wife at home. He admits to thinking about "doing crazy stuff." He also stated that he is having trouble at his job and that he sometimes misses six or seven days a month for a medical appointment or because he has had a rough day or night. The Veteran reported that he does not have much of a social life, and does not have a lot to do with other people. Prior to February 17, 2019 the Board finds that the Veteran's PTSD was characterized by occupational and social impairment with reduced reliability and productivity due to symptoms such 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; or impaired abstract thinking as described for a higher 50 percent evaluation for PTSD. 38 C.F.R. § 4.130. The Veteran's PTSD symptoms such as irritably, anxiousness, and impaired judgment impacted work due to an inability to understand his superior's instructions or focus on the task at hand. The Veteran also did not understand complex commands. He also reporting difficulties at work because co-workers tease him about his hearing issues and he exhibited feelings of worthlessness. VA examination reports dated in August 2017 and February 2018 indicate that the Veteran is having a very difficult time with his work as he cannot understand commands/focus on the task at hand and he is having difficulties with his marriage. VA treatment records reflect that he fears his wife will leave him. The Veteran's wife stated that he does not spend much time with his family, and the Veteran admitted to not having a social life. Accordingly, the Board finds that the Veteran has experienced occupational and social impairment with reduced reliability and productivity prior to February 17, 2019 and, thus, that a 50 percent rating is appropriate. However, prior to that date there were no indications of even more severe impairment such as delusions, dangerous thoughts or behavior, impaired self-maintenance, or disorientation. The preponderance of the evidence thus is against a rating higher than 50 percent prior to February 17, 2019. For the time period from February 17, 2019, and thereafter, the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, warranting a 70 percent disability evaluation. Beginning on February 17, 2019 as evidence by his VA examination, the Veteran's PTSD were noted to be severe. The VA examiner indicated that the Veteran expressed symptoms such as depressed mood, impairment of short-term and long-term memory, impaired abstract thinking, suicidal ideations such as shooting himself or driving his car into a tree; moreover, at his Board hearing he expressed much difficulty at work due to his constant panic attacks and that he tries to avoid people at work and needs to constantly take off time, missing between six and seven work days per month. The Board finds the Veteran to be competent and that he is credible in his assertions. Based on the foregoing, the Board will resolve the evaluation in favor of the Veteran finding that his symptoms more closely approximated a 70 percent disability evaluation from February 17, 2019. However, the Board concludes that the Veteran's disability picture did not more nearly approximate the criteria for 100 percent rating criteria under DC 9411 for this time period. 38 C.F.R. § 4.130. The weight of the evidence shows that the Veteran did not have 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.