Citation Nr: 21031141 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-00 940 DATE: May 20, 2021 ORDER Prior to February 14, 2013, entitlement to a 70 percent initial evaluation for service-connected posttraumatic stress disorder (PTSD) is granted. From February 14, 2013, entitlement to a 100 percent evaluation for service-connected PTSD is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit-of-the-doubt, the most probative evidence dated prior to February 14, 2013, reflects that the Veteran's service-connected PTSD is manifested by severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas, such as social relations, work, and mood, without total social impairment. 2. As of February 14, 2013, the Veteran's PTSD has been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to February 14, 2013, the criteria for a 70 percent initial evaluation, but not in excess thereof, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. From February 14, 2013, the criteria for a 100 percent evaluation for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 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 June 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The extended procedural history of this appeal stems from a claim received on January 3, 2012. Most recently, the Board denied the issues on appeal in an August 2019 decision. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court endorsed an undated Joint Motion for Partial Remand (JMPR) executed by an attorney representing the Veteran and VA's Office of General Counsel which vacated the portions of the August 2019 Board decision that denied the issues on appeal and remanded them back to the Board with guidance and instructions. The Veteran's appealed issues have been returned to the Board for further appellate consideration. Claim for higher ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's PTSD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. Under Diagnostic Code 9411, a 50 percent evaluation is warranted for PTSD when there is 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; the Veteran's difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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 particular rating." Id. at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. The Veteran's PTSD has been rated 30 percent disabling prior to February 14, 2013, and 70 percent disabling since then. He contends that higher ratings should have been assigned during the appeal period. The Board's analysis will focus on these two distinct periods: Prior to February 14, 2013 and since February 14, 2013. 1. PTSD prior to February 14, 2013 The Board finds that the symptomology associated with PTSD more nearly approximates the criteria for a 70 percent rating during this appeal period. Therefore, his claim for an increased rating for this time is granted. Factual History The Veteran underwent a VA examination in March 2012. See March 2012 VA Examination. The examiner noted that the Veteran reported a history of nightmares that impacted his sleep. Specifically, the Veteran had recurring dreams about an instance in Vietnam where he was almost shot by a Vietnamese civilian. Socially, the Veteran indicated that he tended to keep to himself "to avoid any trouble." However, he maintained his relationship with his two daughters, three grandchildren, and friends with whom he visited and went flying. He also shared that he had multiple long-term relationships but never married. Occupationally, the Veteran worked in construction and trucking until 1990 when he began having seizures and was unable to work. The Veteran noted variable moods, where "some days it [does not] take too much to get [him] mad" and that he experiences "periods of depression with suicidal thoughts." The Veteran also reported that he gets all nerved up and on edge and described difficulties with concentration and memory, stating "[t]here's things I should remember but I don't." Notably, the Veteran also detailed that 3 years prior to the examination he was briefly detained after he "put [his] truck in a lake." The Veteran was brought in for leaving the scene of the accident when he walked home. He noted "the cop started running his mouth and I told him off" but "I took him to court and I won." The examiner found that the Veteran met the diagnostic criteria for PTSD. The examiner observed the Veteran was mildly disheveled and had "irritability or outbursts of anger." The Veteran appeared alert, oriented, and displayed no gross memory impairments but mild attentional difficulties. The examiner noted that the Veteran gave up quickly on tasks and joked defensively throughout attempts to assess his cognition. His mood was superficially bright and affect congruent with content, he displayed mild psychomotor agitation, with generally organized thoughts. The examiner opined that the Veteran had moderate re-experiencing thoughts, moderate avoidance of thought or feelings about or situations and triggers of trauma memories, and moderate to severe hyperarousal and emotional numbing and disconnection. The Veteran demonstrated impressive coping and adaptability, overcoming serious injuries, and remaining gainfully employed and active until his physical condition. The examiner opined that it was unlikely that the Veteran would see substantial improvement of psychiatric symptoms and functional status is limited, as the Veteran appears to be functioning at a comfortable baseline and not involved in mental health treatment. Analysis Socially, the Veteran established and maintained familial relationships with his children and grandchildren; however, he did not have many friends and expressed a preference for solitary activities. Occupationally, the Veteran was not employed but indicated that he had difficulty interacting with others. The medical and lay evidence of record reveal that symptoms such as social isolation, recurrent nightmares, anxiety, suicidal ideation, difficulty getting along with and being around other people due to distrust, disturbance of motivation and mood, and difficulty adapting to stressful circumstances were present prior to February 14, 2013. As such, a 70 percent rating is warranted. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. While the Veteran expressed suicidal ideations, which is contemplated by the 70 percent rating, it is also similar to persistent danger of self-harm contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Veteran reported occasional suicidal ideation, but he indicated he never had a desire or intent to act on the plan during a suicide risk assessment. Therefore, the Board finds that the Veteran's reports of suicidal ideation are most consistent with the criteria for a 70 percent rating and does not warrant a higher rating as the evidence does not show that the Veteran has a persistent danger of hurting himself or others. Furthermore, a rating of 100 percent requires total occupational and social impairment. The evidence reveals that the Veteran maintains positive relationships with his children and grandchildren and is able to engage in limited social activities, such as flying and visits to the Grand Rapids Home for Veterans. Thus, total social impairment is not shown and a rating in excess of 70 percent is not warranted prior to February 14, 2013. 2. PTSD from February 14, 2013 The Board finds that the symptomology associated with PTSD most nearly approximates the criteria for a 100 percent rating during this period of appeal. Therefore, his claim for an increased rating for this time is granted. Factual History The Veteran underwent a VA examination in June 2013. The report notes that the Veteran reported having good relationship with his five siblings and 2 children. At the time of the examination, he had a few superficial friends and feels friendly towards his neighbors but does not have any close social relationships. He reported that the romantic relationships he had were strained due to high irritability and angry outbursts, emotional numbing, and intolerance of stress in the relationship. He shared that he obsessively checks doors and windows nightly and that he has to pull off the road when there is heavy traffic because it reminds him of being in DaNang. The Veteran did not report suicidal or homicidal ideation. At this examination, the Veteran relayed his educational and occupational history. The Veteran completed his associate degree which he reported took him a while to complete because he had problems studying. He worked on a freeway construction job from 1974 to 1990 and experienced significant distress on the job; including hypervigilance, high irritability, angry outbursts including verbal altercations, problems, impaired focus, flashbacks, and episodes where he was so overwhelmed with difficult tasks he had to take hours long breaks. The examiner found that the Veteran met the diagnostic criteria for PTSD. The examiner noted that the Veteran experienced flashbacks, auditory distortions of banging noises, olfactory distortions of rice and diesel fuel, and tingly tactile distortions that felt like something was crawling on him. Additionally, he asserted that he had a mildly impaired memory such as having trouble recalling how to build a shed "even though he was a builder all his life." He also neglected personal hygiene and daily chores. The examiner noted the Veteran took efforts to avoid thoughts, feelings, places, or conversations associated with his trauma. The Veteran presented with irritability or outbursts of anger, difficulty concentration, hypervigilance, and an exaggerated startle response. In November 2013, the Veteran requested a higher rating stating that he cannot "hardly add anymore," he has "bad behavior," he "cannot think of people's names anymore", and he "wants to hurt others and himself." See November 2013 Notice of Disagreement. In February 2014, the Veteran alleged that he has social impairments, he "cannot think thoughts," struggles with behavior, and sometimes has hallucinations where he might hurt himself or someone. See February 2014 Statement. In March 2015, the Veteran underwent another VA examination. According to the report, the Veteran reported that he sees his children often, has two good friends, and has never married. Socially, he reported that he does not need people, does not trust others, and that "if you meet people[,] they might rip you off." Occupationally, he indicated that he has not worked since 1986. He experiences anger and anxiety at times, with one panic attack per month. The Veteran reported experiencing suicidal thoughts "once in a while," adding that he would not take his own life because of his daughters. He also admitted to thoughts of homicide "a couple times," detailing how a man he has a protective order against attacked him. The Veteran informed the examiner that if that man came back to his home, he would shoot him. The Veteran reported having variable hallucinations, nightmares, and flashbacks. He has three recurring dreams: being in the Marine Corps and going back to Vietnam, being in Vietnam when an ARVN soldier was stealing jewelry from a family and then killing a person behind him, and in Da Nang when he was supposed to be riding shotgun in a deuce-and-a half truck that hit a mine and blew up. Additionally, the Veteran shared that his memory is not very good. He does not recognize people he should, he forgets what he reads, and writes himself notes to remind him of tasks he needs to complete. Notably, the Veteran was lost on a familiar road the year prior to his examination. The examiner observed that the Veteran was casually dressed and fairly groomed. He was alert, oriented, cooperative, and pleasant with good eye contact and appropriate affect. While the Veteran was able to spell "world" forward, he declined to try spelling it backward. He also was unable to accurately complete the serial 7's and could only recall 1/3 words after delay and 2/3 with prompting. The examiner noted that the Veteran's speech was rambling and tangential at times. Notably, the Veteran went on several tangents during the evaluation, one about canning food and another about sauerkraut. There was no evidence of delusions, mania, or obsessive-compulsive features. He appeared to be of average intelligence, capable of abstract thinking and displayed fair insight into his PTSD and related emotions and behaviors. The examiner opined that the current examination revealed continued presence of severe signs and symptoms of PTSD with a poor prognosis for substantial improvement of psychiatric symptoms and functional status as veteran is not involved in any mental health treatment. The examiner opined that the Veteran displays distrust and suspiciousness of others, a potentially volatile mood, and limited frustration tolerance. As a result, he would likely have significant difficulty functioning effectively in the workplace and sustaining gainful employment. In December 2015 correspondence, the Veteran asserted that it is "bad to think" with himself. See Form 9. For the period from February 14, 2013 and thereafter the Board finds that the Veteran's PTSD symptomology manifests a total social and occupational impairment. The June 2013 and March 2015 examinations demonstrated an increase in the frequency, intensity, duration, and type of symptoms since his last VA examination. Specifically, the Veteran now suffers from symptoms such as auditory distortions, olfactory distortions, tactile distortions, neglect of personal appearance and hygiene, social isolation, suicidal and homicidal ideation, and intermittent inability to perform activities of daily living. The examiner opined that the Veteran's symptoms would severely impair his ability to work and interact with others. Based on the foregoing evidence, the Board cannot find that a preponderance of the evidence is against the assignment of a 100 percent rating since February 14, 2013. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.