Citation Nr: 21031723 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-60 526 DATE: May 24, 2021 ORDER A rating of 70 percent for PTSD from August 18, 2015 is granted. FINDINGS OF FACT 1. For the period on appeal, including one year prior to the August 18, 2016 claim, the relevant, competent evidence shows occupational and social impairment with deficiencies in most areas, such as school, work, family relations, judgment, thinking, and/or mood. 2. For the period on appeal, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW From August 18, 2015, the criteria for a rating of 70 percent, but no more, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1969 to January 1971 and from September 1973 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board denied a disability rating greater than 30 percent before August 18, 2016, and greater than 50 percent thereafter, for PTSD. The Board also remanded entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and that matter has not returned to the Board and it will not be discussed here. However, it may be the subject of a latter Board decision, if necessary. The Veteran appealed the 2019 Board decision to the Court of Appeals for Veterans Claims (Court) and in February 2020 the Court granted a Joint Motion for Partial Remand (JMPR) vacating the portion of the April 2019 Board decision that denied an increased rating for PTSD. Subsequently, in July 2020, the Board remanded the PTSD rating issue in accordance with the terms of the JMR. It has now returned to the Board for adjudication. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, 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. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. A rating of 70 percent for PTSD from August 18, 2015 The Veteran contends generally that his service-connected PTSD has been manifested by more severe symptoms and social and occupational impairment than contemplated by the 30 and 50 percent disability ratings assigned. The July 2017 notice of disagreement reflects the representative indicated that a 70 percent rating was warranted because the Veteran experienced suicidal ideation. 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms cause the level of impairment required for a disability rating of 70 percent, but not higher. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating over the entire period on appeal. A 50 percent rating is assigned when 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; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 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; or memory loss for names of close relatives, own occupation or own name. Turning to the evidence of record, a medical record from March 2015 noted that the Veteran's wife was worried that he was depressed. He slept less than usual, felt apathetic, down or depressed most days of the week. He still got pleasure from doing things, but he did not feel motivated to do them. Periodically, he had suicidal ideation that he would drive his car into a tree at a high speed. He owned guns, but he had no plans to complete suicide. It was noted that he had chronic depression and thinking about suicide. An August 2016 statement reflects the Veteran checked various boxes indicating that he experienced mental health symptoms, to include anger, anxiety, chronic sleep problems, danger of hurting self or other, flashbacks, memory loss, isolation, suspiciousness, and suicidal feelings and thoughts. The Veteran was afforded a VA examination in September 2016. Documented symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and suicidal ideation. He reported that his marriage remained good and he spoke with his children monthly. He did not have any friends and lacked interest to make new friends. He typically spent his day watching television. He reported an increased frequency in nightmares in the past year that impacted his sleep quality. He also avoided going to the grocery store because he was anxious of other people's intentions. He had low interest and motivation for activities he used to enjoy. He also endorsed feeling irritable and felt more isolative. With regard to suicidal ideation, the Veteran reported that he seriously considered killing himself the first time he was diagnosed with cancer. He had recently been diagnosed with more cancer and he had fleeting suicidal thoughts without plan or intention. The examiner determined the Veteran's disability was productive of occupational and social impairment with reduced reliability and productivity. Medical records document positive suicide risk screenings in October 2018 and January 2019. With regard to the 2019 result, it was clarified that the Veteran did not have thoughts of wanting to harm himself, but he had thoughts that he would be better off dead. The Veteran underwent another VA examination in March 2021. Documented symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. He reported he was still married and he visited with his children monthly. He was not very active and had become obese. He previously worked as a corrections officer and retired in 2015. Upon examination, he was alert, cooperative, and maintained steady eye contact. He was not found to have problems with concentration or attention. It was noted that his suicide risk level was not at an elevated acute risk. The examiner determined that his symptoms manifested in 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. After review of the competent and probative evidence, the Board finds that a rating of 70 percent, but no higher, is warranted for the period on appeal, including the one year prior to August 18, 2016. In this regard, the Veteran consistently reported suicidal thoughts as shown in his lay statements, VA treatment records, and the 2016 VA examination. See Bankhead 29 Vet. App. at 20 ("[T]he presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas."); see id. (affirming that suicidal ideation does not require suicidal intent, a plan, or prepatory behavior). Moreover, he also reported increasing isolation and irritability. As such, the Board finds that the frequency and severity of such symptoms most nearly approximate deficiencies in most areas, such as judgment, thinking, or mood. The Board also finds that a higher rating of 100 percent is not warranted as the competent evidence does not reflect total social and occupational impairment. In this regard, for example, he does not have persistent delusions or hallucinations. The Board acknowledges the passive suicidal ideations but finds that when evaluating the period on appeal as a whole, he is not in persistent danger of harming himself or others as he has denied suicidal and homicidal ideations during various times. The Board acknowledges his social isolation, but finds that such social function, though limited, does not reflect total social impairment. See Total, Merriam-Webster, https://www.merriam-webster.com/dictionary/total (defining the adjective "total" as, among other entries, absolute). The evidence, to include the 2016 and 2021 VA examinations, reflects that the Veteran described his marriage as good and he remained in regular contact with his children. The Board finds that such evidence weighs against a finding of total social impairment. Regarding occupational impairment, while he had difficulties including disturbances of motivation and mood, he retired in 2015. The evidence also tends to support that he was alert and oriented throughout the appeal period. Taking all evidence into account, the Board finds that the frequency and severity of such symptoms most nearly approximate deficiencies in most areas, such as judgment, thinking, or mood. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list but are examples of the type and severity of symptoms that indicate a certain level of disability. After examining the Veteran's PTSD symptoms and the associated impairment, however, the Board concludes that the Veteran's symptomatology more nearly approximates the criteria for a rating of 70 percent, but no higher, from August 18, 2015 onward. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cruz, 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.