Citation Nr: 21030807 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-50 891 DATE: May 19, 2021 ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. Entitlement to a rating of 70 percent for other specified trauma and stressor related disorder is granted. REMANDED Entitlement to a rating in excess of 70 percent for other specified trauma and stressor related disorder is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD. 2. The Veteran's PTSD was caused by service. 3. The Veteran's service-connected psychiatric disorder is characterized by suicidal ideation, impaired impulse control with outbursts of yelling, throwing objects and breaking things, depression, anxiety, and social isolation. CONCLUSIONS OF LAW 1. The criteria for service connection for post-traumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.303, 3.304(f) (2020). 2. The criteria for a 70 percent rating for other specified trauma and stressor related disorder have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9410 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to March 1971. This matter came before the Board of Veterans Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a May 2021 hearing. 1. Entitlement to service connection for PTSD The Veteran contends that he has a current disability of PTSD due to combat-related trauma. The Board concludes that service connection is warranted. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Veteran contends that his PTSD was caused by his combat experience in Vietnam, which involved killing enemy troops and seeing fellow service members dying and placing them in body bags. His DD-214 shows receipt of Bronze Star and Army Commendation Medals, and his specialty was light arms infantry. Military personnel records document that he received his Army Commendation Medal for heroism against a hostile force in Vietnam, noting that he courageously exposed himself to the dangers of a combat environment while working to neutralize an enemy threat. The Board therefore finds that the Veteran is a combat veteran, and as his claimed stressors are related to combat and consistent with that experience, his lay testimony is sufficient to establish his claimed stressor. 38 C.F.R. § 3.304(f). The Board therefore concedes the Veteran's claimed stressor. The Board also finds that the Veteran has a PTSD diagnosis linked to his military experience by the competent medical evidence of record. August 2019 VA treatment records note a DSM-V diagnosis of PTSD. Prior VA treatment records diagnosed PTSD based on the Veteran's reports of combat in Vietnam and traumatic incidents such as fighting at close range and seeing friends killed and having to body bag them. The Board acknowledges that the VA examinations and opinion of record did not diagnose PTSD. The February 2016 examiner stated that the Veteran did not "currently" meet the DSM-5 criteria, however the examiner did not address whether the Veteran met the criteria at any point during the period on appeal. The June 2017 VA examination also did not diagnose PTSD, however the examiner commented that the Veteran appeared to be self-medicating his "active PTSD symptoms," and noted that anxiety symptoms were characteristic of PTSD. The examiner did not reconcile these statements with the finding of no diagnosis. An August 2017 VA opinion then opined that the Veteran did not meet the criteria for PTSD, noting that prior VA treatment records did not specifically reference the DSM-V criteria and assigning more weight to the VA examination findings, stating that VA examiners were held to a stricter diagnostic criteria than clinical providers. However, the Board notes that since the August 2017 opinion the Veteran's VA provider made a clear DSM-V diagnosis, which specifically addresses the deficiency in the record found by the August 2017 opinion. Moreover, the August 2019 PTSD diagnosis was consistent with the prior diagnoses of record and medical history reports made by the Veteran's VA providers. Unless there is evidence to the contrary, a diagnosis of PTSD from a qualified mental health professional should be presumed to meet the necessary DSM criteria for such a diagnosis. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Here, there is no indication in the record that the Veteran's VA providers are not qualified or did not apply the required criteria, and the August 2017 opinion did not provide any basis for opining that clinical providers were not held to the same strict standard as a C&P examiner. Here, those diagnoses were later confirmed by a clear DSM-V diagnosis. The Board therefore assigns more weight to the findings of the Veteran's VA providers and finds that the Veteran has a current diagnosis of PTSD in accordance with DSM-V. The Board therefore finds that the competent medical evidence of record supports the conclusion that the Veteran has a current disability of PTSD caused by his conceded in-service stressor. As noted above, VA treatment records indicated that the diagnosis of PTSD was related to the Veteran's combat experience. Service connection for PTSD is therefore warranted. 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f) (2017). The Board notes that when implementing this grant of service connection for PTSD, the RO will provide a single rating based on all the Veteran's psychiatric impairments. Under VA law and regulations, a veteran may only receive a single disability rating for psychiatric disabilities as all psychiatric disorders and symptoms are rated under the General Rating Formula for Mental Disorders, and to assign separate ratings for acquired psychiatric disorders would constitute pyramiding. 38 C.F.R. § 4.14. Therefore, while the Veteran now has separate service-connected psychiatric disabilities, a single rating will be assigned reflecting the Veteran's level of social and occupational impairment. 2. Entitlement to a rating in excess of 10 percent for other specified trauma and stressor related disorder The Veteran contends that he is entitled to an increased rating for his specified trauma and stressor related disorder. As will be explained in detail below, the Board finds that a 70 percent rating is warranted. The question of whether the Veteran is entitled to a rating in excess of 70 percent will be addressed in the remand section below. As noted above, while the Veteran has multiple service connection psychiatric disabilities, he will receive a single rating under the General Rating Formula for Mental Disorders. At the May 2021 Board hearing, the Veteran recognized that if service connection for PTSD was granted, a single rating reflecting his overall level of occupational and social impairment would be assigned under General Rating Formula for Mental Disorders. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability's severity, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency and duration, have caused the level of occupational and social impairment associated with a rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran's psychiatric disability has been rated under Diagnostic Code (DC) 9410, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The criteria for a 70 percent rating under the DC percent are 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. VA treatment records document psychiatric treatment. October 2016 records noted that the Veteran was withdrawn, with anxiety, mild panic attacks and poor sleep. The provider also noted problems with anger, including yelling and breaking things. November 2016 records noted symptoms of depression, anxiety, and nightmares. December 2016 records noted depression, with mood up and down. The provider noted that confrontations with others were less frequent but that the Veteran got angry and yelled 4 times in the prior month. The provider noted that the Veteran was isolated other than his wife. The Veteran denied current suicidal thoughts but stated that at times he felt that life was not worth living. August 2019 records noted increased irritable mood, flashbacks, and intrusive memories. A February 2016 VA examination noted the Veteran's reports of sleep problems, bad memories and anger problems. The examiner found symptoms of anxiety. A June 2017 VA examination noted that the Veteran appeared to be self-medicating his active PTSD symptoms. The examiner found symptoms of depression, anxiety, and suicidal ideation. The Veteran reported anger problems, stating that he threw and broke things. He also reported problems with focus. The examiner observed that the Veteran had significant anxiety that was characteristic of PTSD. The examiner also noted an increase in irritability, isolation, and nightmares. At the outset, the Board finds the VA examinations adequate for review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the May 2021 Board hearing, the Veteran reported ongoing thoughts and intent to harm himself, more often in the last 10 years since he retired. He stated that the thoughts had been there consistently before that time, but he did not focus on them. He also stated that he was socially isolated and withdrawn. The Board notes that the Veteran is competent to report lay-observable symptoms such as suicidal thoughts and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the evidence shows that the Veteran's overall disability picture more nearly approximates the severity required for a 70 percent rating. In addition to symptoms of depression, anxiety and social isolation, the evidence indicates that the Veteran has impaired impulse control with outbursts of yelling and throwing objects as well recurring suicidal ideation. Both the Veteran's VA providers and the June 2017 VA examiner noted ongoing anger and irritability with outbursts of yelling and throwing and breaking objects occurring multiple times per month. Regarding suicidal ideation, the Veteran has submitted competent and credible lay evidence regarding recurrent suicidal ideation throughout the period on appeal and the June 2017 VA examination specifically found suicidal ideation, consistent with the Veteran's reports. As noted above, suicidal ideation alone may cause occupational and social impairment in most areas, consistent with a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The evidence does not indicate that the Veteran exhibits illogical speech, spatial disorientation or neglect of personal hygiene, but the Board notes that the symptoms listed in the general rating formula are non-exhaustive and finds that the overall severity of the Veteran's symptoms, particularly his suicidal ideation and impaired impulse control with violent outbursts, more closely approximate the severity of a 70 percent rating for the entire period on appeal. A 70 percent rating for PTSD is therefore warranted. 38 C.F.R. § 4.7. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent for other specified trauma and stressor related disorder As a 70 percent rating has been granted above, the Board will now address whether a rating in excess of 70 percent is warranted for the Veteran's psychiatric disability. The record indicates that the Veteran's psychiatric symptoms may have worsened since his last VA examination in June 2017. August 2019 VA treatment records specifically noted increased irritable mood, flashbacks, and intrusive memories. As the evidence of record suggests that his service-connected disability has increased in severity since the most recent VA examination in 2017, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his trauma and stressor related disorder. The examiner should review the file and provide a complete rationale for all opinions expressed. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.