Citation Nr: 21030370 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-15 897A DATE: May 18, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to September 24, 2019 is denied. Entitlement to a rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted from September 24, 2019. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas prior to September 24, 2019. 2. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment from September 24, 2019. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to September 24, 2019 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) have been met from September 24, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1968 to January 1970 including service in the Republic of Vietnam. He was awarded the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the March 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying entitlement to an initial rating greater than 10 percent for his service-connected anxiety disorder. In September 2014, the RO recharacterized the Veteran's psychiatric disorder to PTSD and increased his initial rating to 30 percent and granted a temporary total disability rating from February 10, 2014 to May 31, 2014, while he underwent hospitalization for PTSD, In February 2020, the Board denied an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD) prior to February 10, 2014 and granted a rating of 50 percent from June 1, 2014. In December 2020, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the February 2020 Board decision, in relevant part, to the extent that it denied a rating greater than 50 percent for PTSD from June 1, 2014, pursuant to a Joint Motion for Partial Remand. The Court found that the Board did not explain its weighing of relevant evidence contained in the 2015 and 2019 VA examinations. Specifically, the Court found that the Board did not discuss whether the evidence demonstrated "impaired impulse control (such as unprovoked irritability with periods of violence)." As the Veteran abandoned all other claims on appeal, the only issue at question is whether the Veteran's PTSD warrants a rating greater than 50 percent from June 1, 2014. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Entitlement to a rating greater than 50 percent for posttraumatic stress disorder (PTSD) from June 1, 2014 The Veteran contends that his PTSD warrants a rating greater than 50 percent from June 1, 2014. Specifically, he contends that the VA examinations prior to April 2016 were inadequate and that the October 2015 VA examiner "omitted pertinent and critical statements made that day by the Veteran, thus misrepresenting the full and accurate disability picture." The Veteran's PTSD has been rated under the criteria contained in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411, Posttraumatic Stress Disorder. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See Id. A 70 percent rating is assigned when there is objective evidence demonstrating 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 worklike setting); inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or 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. See Id. When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify "the level of occupational and social impairment caused by those signs and symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment." In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. The U.S. Court of Appeals for the Federal Circuit (Federal Court) held that "a veteran may only qualify for a given disability rating under § 4.130 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, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 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." Id. at 118. The Federal Circuit indicated that "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background In October 2014, the Veteran submitted a Disability Benefits Questionnaire ("DBQ") where the medical practitioner noted "lots of fights, property damage, triggered by PTSD" and "heavy use" of alcohol. Symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation (not at present but in November 2008), impaired impulse control, and intermittent inability to perform activities of daily living were noted. In the October 2015 VA examination, the Veteran acknowledged sporadic outbursts such as breaking a picture frame after getting frustrated assembling furniture and cursing twice in front of his youth football team after losing his patience. The Veteran reported having a good relationship with his wife, having an improving relationship with his sons, and a close relationship with his grandchildren whom he sees regularly and babysits as needed. The Veteran also reported that he had 3-4 close friends that he spends time with every couple of months. With respect to symptoms, the Veteran experienced panic attacks about once a week, insomnia with night sweats, having distressing dreams almost every night, and avoiding crowds and burning smells. The 2015 VA examiner also noted that the Veteran experienced disturbances of motivation and mood. Behaviorally, the Veteran was alert and oriented to time, person, and place. He exhibited good hygiene, grooming, and was dressed appropriately. The Veteran denied any delusions, hallucinations, and suicidal or homicidal ideations. The examiner remarked that the Veteran reported increasing difficulties with irritability over the last 6 months but noted that the Veteran had close interpersonal relationships, stable work history, interest in returning to work, and interest in supporting his community through youth football coaching. VA Medical Center treatment records from October 2015, November 2015, December 2015, January 2016, February 2016, March 2016, and April 2016 show that the Veteran consistently denied having any recent anger control issues or incidents, and denied having suicidal or homicidal ideations. In February 2016, the Veteran reported more anxiety and that he got too anxious and frustrated to coach football. In April 2016, the Veteran stated that the October 2015 VA examiner left out or disregarded his statements and requested another VA examination. The Veteran also contended that he still had symptoms listed in the October 2014 DBQ such as flattened affect, panic attacks of more than once a week, impaired judgment, disturbances of mood and motivation, difficulty in social relationships, forgetting to complete tasks and understanding complex commands. VA Medical Center treatment records from May 2016 show that the Veteran reporting an anger issue preventing him from attending the 50th commemoration of the Vietnam War. The Veteran reported that his anger was related to the current political issues. The Veteran still denied any recent anger control incidents and denied having suicidal or homicidal ideations. Later that month, the Veteran reported struggling with control of his anger and stated that avoidance was his main method of control. In June 2016 and in July 2016, the Veteran again denied having any recent anger control issues or incidents and denied having suicidal or homicidal ideations. In August 2016, the Veteran reported having an angry verbal outburst with his wife but denied any suicidal or homicidal ideation. In the following week, the Veteran denied any recent anger control issues. The Veteran also reported that he was coping with stressors without resorting to anger and was coaching a 13-year-old touch football team. In September 2016, October 2016, November 2016, December 2016, and August 2017, the Veteran denied having any recent anger control issues or incidents and denied having suicidal or homicidal ideations. In November 2016, the Veteran "defriended someone he has known for over 50 years" due to political differences. In March 2017, the medical practitioner noted symptoms of memory loss and psychiatric impairment. The Veteran denied feeling unhappy, depressed, anxious, and also denied homicidal or suicidal ideations. In April 2017, there was no obvious memory deficits and was deemed a "reasonably accurate historian." The Veteran exhibited adequate motivation and interest during the session. He reported that he moved to Florida partially to decrease interaction with family. The Veteran denied experiencing significant distress related to his PTSD and reported that he was managing his symptoms well with medication. In June 2017, he reported stress and ongoing anxiety but also said that he had a good support system that included his spouse, family, and friends. In August 2017, the Veteran's mood was positive, reported that he and his wife were doing well and that his second wedding anniversary was coming up. In October 2017, the Veteran reported stress and moderate depression but also that he had a good support system. In February 2018, the Veteran reported that his extended family was staying with him and that he was complying with medications and treatments. He denied suicidal or homicidal ideations. In August 2018, the Veteran reported that he was involved in two physical altercations and that he felt "on the edge." One of the incidents was at a casino where his hat was "flipped" by a group of young people and the other incident was at a bar where he punched someone over a political conversation. In September 2018, the Veteran reported "mild improvement in anger and irritability with the initiation of hydroxyzine" but also an increase in nightmares. The Veteran denied suicidal or homicidal ideations and reported that he was living with his spouse. In January 2019, the Veteran reported "somber" mood with periods of isolation and irritability. He said that he moved to Florida because he did not "want his grandchildren to be exposed to his behavior of irritability and anger." The Veteran also reported that his mother was diagnosed as having pancreatic cancer and that she was living with his sister in Florida. He reported getting "angry from time to time" but denied suicidal or homicidal ideations. On September 24, 2019, the Veteran was afforded a VA examination for his PTSD. The Veteran reported that his marriage of four years has "not been going good" and that he became "very violent with her," grabbing her around the neck and pushing her a couple times. The Veteran also stated that he loved his sons and grandchildren from his first marriage, but that he had "never been close to his grandchildren" and that he had one close friend whom he can confide in. He reported being "depressed all the time," being anxious, and denied suicidal or homicidal ideations. The Veteran also reported having "passive thoughts of self-harm." The examiner diagnosed the Veteran as having PTSD in partial remission as the evaluation did not meet the threshold for a DSM-V PTSD diagnosis. In October 2019, the Veteran denied active suicidal or homicidal ideas but reported that he had "thought about it" although he would not hurt himself because it was "crazy to do." He denied suicidal or homicidal ideations in November 2019 and again in December 2019. Analysis prior to September 24, 2019 After reviewing the evidence of record, the Veteran's disability picture is best approximated by the criteria for a 50 percent evaluation prior to September 24, 2019. There is no evidence of record, lay or medical, showing symptoms of: homicidal 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; inability to establish and maintain effective relationships. Although the Veteran reported various incidents of violence, none of the incidents he reported seem "unprovoked." The two incidents reported by the Veteran were caused by someone tipping his hat or political arguments. Likewise, he broke a picture frame out of frustration while putting together a table at home and cursed in front of his youth football team due to frustration. It is also noted that there is no "periods of violence" but only singular incidents. Thus, the Board finds that these incidents were not a sign of impaired impulse control as described in the rating criteria and they did not result in occupational or social impairment as the Veteran did not change nor was he restricted from his usual activities. They did not result in any form of intervention. Further, the outpatient records show that these events were infrequent and the Veteran denied impaired impulse control on several occasions. The Veteran also reported that his anger control was improving in September 2018. Regardless whether these were provoked or unprovoked, the Veteran's overall the overall severity and manifestations of the appellant's PTSD does not more nearly approximate occupational and social impairment with deficiencies in most areas prior to September 24, 2019. The Veteran consistently denied any issues with anger control as well as having any suicidal or homicidal ideation with the only thought of suicidal ideation being in November 2008 as reported in the October 2014 DBQ. The Veteran also consistently reported maintaining a good relationship with his family. Although he stated that he moved to Florida to not expose his grandchildren to his behavior of irritability and anger, he did not report a worsened relationship, only that he loved his sons and grandchildren from his first marriage. The Board also observes that, by moving to Florida, he moved closer to his sister who was taking care of his mother in Florida. Therefore, in view of the evidence of record, the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating greater than 50 percent prior to September 24, 2019. Of note, although the Veteran may exhibit some symptoms of a higher rating, a holistic review of the Veteran's symptoms demonstrate that his symptoms are better categorized by the 50 percent rating. See Vazquez-Claudio, 713 F.3d at 115-17. Moreover, some of the symptoms listed in the diagnostic code for a higher rating have not been shown at all. In summary, the most probative evidence reflects that the criteria for a rating greater than 50 percent for PTSD have not been met prior to September 24, 2019. See 38 C.F.R. § 4.130, DC 9411. Analysis from September 24, 2019 After reviewing the evidence of record, the Veteran's disability picture is best approximated by the criteria for a 70 percent evaluation from September 24, 2019. However, the preponderance of the evidence is against assignment of a rating greater than 70 percent. The Veteran has not exhibited a majority of the symptoms provided for a 70 percent rating. However, since September 24, 2019, he has reported suicidal ideations or passive thoughts of death. In Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017), the Court of Appeals for Veterans Claims (Court) held that the language of the general rating formula "indicates that the presence of suicidal ideation alone ... may cause occupational and social impairment with deficiencies in most areas." The Court also held that "insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred." Id. Based on the Court's holding reasoning in Bankhead, and resolving doubt in favor of the Veteran, his anxiety disorder and major depressive disorder is more nearly approximated by the criteria for a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9413. On September 24, 2019, the Veteran also reported that he became very violent with his wife and grabbed her around the neck and pushed her a couple times. It is unclear from the record whether this report pertained to a single incident or separate incidents of grabbing his spouse's neck and pushing her. The Veteran did not report anything that provoked him and reported that he loved his wife, suggesting impaired impulse control, such as unprovoked irritability with periods of violence. However, his symptoms have not more nearly approximated total occupational and social impairment at any point during the appeal period. Symptoms such as gross impairment in thought processes or communication; persistent danger of hurting self or others; disorientation to time and place; memory loss for names of close relatives, own occupation, or name, have not been shown. The ultimate determination, however, of the degree of occupational impairment is a legal rather than a medical determination. 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present"). As set forth below, it is determined that the Veteran's PTSD has not produced total occupational impairment. The evidence of record show the Veteran maintained a marriage and a good relationship with his family. Thus, neither the symptoms nor overall level of impairment meet the criteria for a 100 percent schedular rating under the Rating Schedule, and a rating greater than 70 percent assigned herein is therefore not warranted for the PTSD. For the foregoing reasons, the criteria for a 70 percent rating for the Veteran's service-connected PTSD were met on September 24, 2019. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.130, Diagnostic Code 9411. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yun; 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.