Citation Nr: 21030432 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-07 224 DATE: May 18, 2021 ORDER A 100 percent rating for post-traumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran's service-connected PTSD has been characterized by symptoms resulting in total occupational and social impairment, due to such symptoms as: gross impairment in thought process 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; and memory loss for names of close relatives, own occupation or own name. CONCLUSION OF LAW The criteria for a rating of 100 percent for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.7, 4.130 Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1969 to May 1972. The Board will grant a 100 percent rating for the Veteran's service-connected PTSD. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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. A 100 percent rating for PTSD is granted. The Veteran contends that his service-connected PTSD is worse than that which is contemplated by his current 30 percent rating. Diagnostic Code 9411 provides for a 30 percent rating where the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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 appropriate where the evidence shows 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is appropriate where the evidence shows 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is appropriate where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought process 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. Id. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and 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." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. VA treatment records indicate a diagnosis of PTSD and psychosis, not otherwise specified, a history of suicide attempts and psychiatric admissions, and ongoing treatment for PTSD, to include VA PTSD group therapy. An October 2014 VA treatment record indicates that the Veteran reported that he sees shadows from the corners of his eyes. He also reported intrusive thoughts and hyperarousal. A May 2015 VA treatment record indicates that the Veteran continues to have daily baseline struggles with his PTSD symptoms. He reported that he avoids crowds, loud noises, and sits with his back to the wall to scan his surroundings. He reported intermittent flashbacks. He also reported auditory hallucinations manifested as hearing people talking, and he reported that he keeps his television running constantly to drown out auditory hallucinations out. Intermittent paranoia was also reported. The Veteran was afforded a VA examination in August 2015. The examiner noted that an in-person examination was conducted and that a review of the Veteran's VA e-folder was completed in conjunction with the examination. The examiner noted a diagnosis of PTSD. The examiner noted that the Veteran experiences 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 reported that he has been separated from his spouse since September 2014, and that he is considering a divorce. He stated that he currently resides alone. He reported that he has no contact with his two children, but that he maintains contact with his siblings. He stated that he does not have many friends. He stated that his sister lives in a large southern city and that he speaks to her nearly every day, and that he visits her. The Veteran reported that his interests include restoring an old car, exercising, watching television, and visiting church members. The examiner noted that the Veteran has anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, or recent events, which are related to his PTSD. The examiner noted that the Veteran did not specifically endorse depressed mood, but he reported that he has periods when he wants to just "take off." The Veteran reported that his mind tends to wander when idle. No present suicidal intent or plan was reported. No recent suicidal attempts or homicidal intent or plan was reported. The Veteran reported sleep disruption on a nightly bases, and reported daytime fatigue. The Veteran reported problems with anxiety, and stated that he does not like to be around a lot of people, to include when shopping or waiting. He also reported panic attacks, which were related to anger. He reported that he prefers to be alone. Audio and visual hallucinations were reported. In particular, the Veteran reported that he sometimes will see something run across the floor in his periphery, and stated that he feels something crawling on his skin at times. He reported an increasing number of triggers of distressing thoughts. He reported that he often does not recall the content of his dreams, but that he occasionally dreams of deceased individuals. The examiner noted that the Veteran can manage his financial affairs. An October 2015 VA treatment record indicates that the Veteran reported "bad dreams" revolving around dead people. He endorsed flashbacks occurring twice weekly of being covered in leeches. He also reported avoidance of large crowds because he cannot "watch them all." In a November 2015 VA treatment record, the Veteran reported limited social support. He reported have dreams where he is fighting. In a February 2017 VA treatment record, the Veteran reported that he hears voices from the television and radio, and reported hearing "mumbling" and "people talking to him." A May 2017 VA treatment record indicates that the Veteran reported intrusive thoughts, nightmares, and hypervigilance. He also reported seeing shadows in his periphery. A July 2017 VA treatment record indicates that the Veteran reported intrusive thoughts, nightmares, and hypervigilance. He reported triggers, particularly from the television. He reported recollections of traumatic events. He reported that bugs are a trigger. He reported having frequent dreams about "dead people," which have been ongoing since service. Ongoing concerns with memory, to include delayed recall and reverse ordering of numbers, was reported. The Veteran stated that he is unable to read as many books as he did in the past. The Veteran reported intermittent anxiety, which was related to his heart condition and thoughts of dying as a result. A September 2017 VA treatment record indicates that the Veteran reported intrusive thoughts, nightmares, and hypervigilance. Regarding his symptoms, the Veteran stated, "they will never go anywhere, and I just deal with [it]." The examiner noted that memory and concentration continue to be a concern. In particular, the Veteran reported forgetting where he places things, forgetting the names of people, and forgetting what he is doing. In an October 2017 VA treatment record, the Veteran was observed as angry, irritable, speaking loudly, having scattered thought process, and cognition marked by poor concentration. The Veteran was afforded a VA examination in March 2018. The examiner noted that an in-person examination was conducted and that a review of the Veteran's VA e-folder was completed in conjunction with the examination. The examiner noted a diagnosis of chronic PTSD. The examiner noted that the Veteran experiences 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 reported that he lives alone, and that he is still separated from his spouse. He reported that his marriage was effected by his PTSD symptoms. He reported having two brothers, one of which lives out of state. He stated that he is closer to the brother who lives out of state. He reported that he has a sister who also lives out of state, but that he speaks to her daily. He reported having few social relationships, but that he has contact with friends a couple of times weekly. He stated that his hobbies are limited by his medical conditions, and that he spends most of his time at home. He reported that he watches television, and uses exercise equipment at home occasionally. He also stated that he "might go visit a friend," and that he attends VA group therapy for his PTSD. The examiner noted no psychiatric hospitalizations for suicide attempts since the last VA examination. The Veteran's symptoms were noted to include the following: depressed mood, anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, and directions or events. The Veteran denied suicidal/homicidal ideation. Sleep disturbance was noted, which was described as fragmented, to include problems with initiation and maintenance. The Veteran reported the need to have the television on to sleep. The use of medication for sleep was noted. Depressed mood was described as periodic. The Veteran stated that he feels like he has nothing to look forward to anymore, and that he has more negative thoughts than positive thoughts. The examiner noted that the Veteran could manage his financial affairs. A January 2018 VA treatment record indicates that the Veteran reported intrusive thoughts, nightmares, and hypervigilance. No changes in frequency or intensity were noted. The Veteran stated that he feels that they are "as good as they will get." Nightmares were reported, with intermittent awaking due to nightmares. Memory and concentration were noted as an ongoing concern. The Veteran reported forgetting names of people, forgetting what he is doing, and forgetting where he places things. The Veteran reported that he may be changing his residence since his sister's ex-husband stopped paying the mortgage where he is renting from him, and that he may move to Las Vegas. The examiner described the Veteran's mood as anxious, his affect as constricted, his cognition marked by drowsiness, poor concentration, and poor memory, and his thought process as rambling and circumstantial. A February 2018 VA treatment record indicates that the Veteran is having problems with insomnia. The Veteran reported that he rarely spends time around others. The Veteran mentioned moving to Las Vegas, but indicated that definite plans to move had not yet been made. An April 2019 private medical record indicates that the Veteran was admitted from an emergency room (ER) with confusion. It was noted that the Veteran's sister worried about his mental health and questionable social support, and brought him to live with her. It was noted that the Veteran's sister reported that the Veteran became confused after coming to live with her, causing her to bring him to the ER. In the ER, the Veteran was noticed to be confused, giving conflicting history on suicidal thoughts, alcohol intake, and was found to be very hypertensive. His family was noted as worried about his medication. It was noted that his confusion waxed and waned during his admission, and at one point it was thought that he may be developing alcohol withdrawal or even catatonia. The Veteran was assessed as having toxic metabolic encephalopathy caused by medication. A Board hearing was held in March 2021. The Veteran testified to problems sleeping since his service, and that he uses medication to sleep, the absence of the use of which causes an inability to sleep. He testified to being easily irritated, and having to call the suicide hotline to calm down. He testified to suicidal thoughts. He stated that he has attended PTSD classes for many years, but that "after so long, those thoughts come back to me, and I have to get back in there to get a refresher course, you know, because those thoughts be in my mind [. . .] it's not something that just goes away and you forget about it [. . .] it says with you. I mean, it's been with me 50 years." The Veteran testified to previous suicide attempts and hospitalization. He testified that his condition effected his previous marriage, which ended in divorce, and his current marriage with his spouse from whom he is separated. He testified that in difficult situations, he attempts to count to ten to diffuse the situation, but that many times the technique does not work. He also testified that he has had hallucinations and delusions for many years. The Veteran testified to long period of depression, sadness, constant panic, and anxiety. He also testified to constant memory loss. In particular, he stated that he forgets the names of people, where he places things, where he is, and what he is doing. The Veteran testified that he lives in a senior citizens apartment complex. He stated that it is hard for him to think about doing things during the day, and that he gets confused with different things. The Veteran testified that, in terms of hygiene, he has days when he does not feel like doing anything. He stated that he does not like to be around people much, and there are several days that he does nothing. He also testified that there are a lot of days when he does not feel like getting out of bed. He testified that his senior citizens apartment complex does not provide a dining hall, and that he usually eats TV dinners so that he does not have to cook. The Veteran's sister testified that the Veteran treats his anxiety with the use of medication, but that he sometimes forgets what to take. She testified that she checks on the Veteran daily to ensure that he takes his medication. She testified that she calls the Veteran to encourage him to get up, shower, and move around. She also testified that several times weekly she has found the Veteran in such a condition that she has had to tell the Veteran to attend to his personal hygiene. She testified that over the past two years, the Veteran's living condition had deteriorated to the point that she moved him to live with her for a few months before he was hospitalized, after which the Veteran was moved to the senior community where he currently resides. She stated that the Veteran cannot be alone "for long periods of time." Before moving to live with her, the Veteran's sister testified that she visited the Veteran and he had racoons living in the house with him. She stated that the house had to be condemned. She stated that she had to call a removal service to get "rid of everything." She testified that the Veteran was living "in such filth. I had no idea my brother was living like this. [. . .] [I]t was bad. It was just bad." She testified that she does not believe that the Veteran is able to live alone unsupervised without reverting to the condition in which she found him prior moving to live with her, and prior to moving to the senior citizens apartment complex. The evidence shows that the Veteran has a history of suicide attempts and psychiatric hospitalizations. In the March 2021 Board hearing, the Veteran testified to ongoing thoughts of suicide, despite involvement in VA PTSD group therapy for many years. He has had audio and visual hallucinations throughout the period on appeal. Intrusive thoughts, flashbacks, avoidance, paranoia, and hyperarousal have been consistently endorsed throughout the period on appeal. The record also consistently shows that the Veteran has poor concentration and memory loss, to include forgetting the names of people, and other memory loss effecting activities of daily living. A 100 percent rating is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.