Citation Nr: 21039772 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 09-28 259 DATE: July 1, 2021 ORDER A 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) for the period prior to October 11, 2017, is granted. FINDING OF FACT Prior to October 11, 2017, PTSD was manifested by occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, near continuous depression, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, poor short-term memory, a constricted affect, disturbance of motivation and mood, obsessional rituals that interfered with routine activities, and impaired impulse control. CONCLUSION OF LAW The criteria for a 70 percent rating, but not higher, for PTSD for the period prior to October 11, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1986 to July 1986 and from August 1987 to July 2007. He served in Iraq, In January 2016, the Board of Veterans' Appeals (Board) granted an initial 30 percent rating and denied a rating in excess of 30 percent for the period on and after January 12, 2009, for PTSD. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court granted the Parties' Joint Motion for Remand; vacated that portion of the January 2016 Board decision which denied a rating in excess of 30 percent for PTSD; and remanded the appeal to the Board for additional action. In December 2016, the Board again denied a rating in excess of 30 percent for PTSD. The Veteran subsequently appealed to the Court. In June 2017, the Court granted the Parties' Joint Motion for Remand; vacated the December 2016 Board decision; and remanded the appeal to the Board for additional action. In December 2017, the Board remanded the Veteran's appeal to the Agency of Original Jurisdiction for additional action. In June 2019, the Agency of Original Jurisdiction granted a 70 percent rating for PTSD, effective October 11, 2017. In February 2020, the Board denied a rating in excess of 30 percent prior to October 11, 2017, and in excess of 70 percent on and after October 11, 2017, for PTSD. The Veteran subsequently appealed to the Court. In December 2020, the Court granted the Parties' Joint Motion for Partial Remand; vacated that portion of the February 2020 Board decision which denied a rating in excess of 30 percent prior to October 11, 2017, for PTSD; and remanded that issue to the Board for action consistent with the Joint Motion for Partial Remand. Rating for PTSD prior to October 11, 2017 The Veteran asserts that an initial 70 percent rating for PTSD prior to October 11, 2017, is warranted as the disability was manifested by significant symptoms including suicidal ideation and severe occupational impairment. Disability ratings are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A 30 percent rating is warranted for PTSD which is productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although the individual is generally functioning satisfactorily with routine behavior and normal self care and conversation) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. The report of a February 2008 Department of Veterans Affairs (VA) psychiatric examination states that the Veteran complained of nightmares and thoughts of incoming rockets and mortars two to three times per month; feeling uneasy and anxious; and a dislike of being in crowds or large stores. He reported that he was married to his third wife and employed on a full-time basis as a Junior Reserve Officers' Training Corps instructor. The Veteran was noted to be well groomed and oriented to time, person, place, and situation. On examination, the Veteran exhibited a spontaneous affect; a mildly depressed mood; logical, coherent, and relevant thought processes; fair social skills; "some subjective decline in concentration and short term memory; intact long term memory; and no psychotic symptoms, suicidality, or homicidality. The Veteran was diagnosed with an adjustment disorder with anxious mood. A Global Assessment of Functioning (GAF) score of 70 was advanced. The report of a January 2009 VA psychiatric examination report conveys that the Veteran complained of nightmares and occasional intrusive thoughts of Iraq combat; feeling on edge and anxious; hypervigilance; an exaggerated startle response; and a dislike for being in crowds or large stores. He reported that he was married and remained employed as a full-time Junior Reserve Officers' Training Corps instructor. The Veteran was noted to be well groomed and oriented in all spheres. On examination, the Veteran exhibited a "somewhat constricted" affect; a "a satisfactory, not depressed" mood; normal speech and communication; logic, coherent, and relevant thought processes; fair social skills; "somewhat impaired short term memory; good attention and concentration; intact remote memory; and no delusions, hallucinations, or suicidal or homicidal ideations. The Veteran was diagnosed with mild PTSD. A GAF score of 65 was advanced. The report of a January 2013 VA psychiatric examination states that the Veteran complained of suicidal thoughts, a depressed mood, anxiety, social isolation, sleep problems, fatigue, poor energy, worthlessness, and poor concentration. He reported that he was married and remained employed as a full-time Junior Reserve Officers' Training Corps instructor. On examination, the Veteran was reported to exhibit a depressed mood, anxiety, panic attacks that occurred weekly or less often, and chronic sleep impairment. The examiner concluded that the PTSD was productive of "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." In an August 2017 written statement, the Veteran reported that he had experienced suicidal ideation monthly since service separation. He indicated that the service connected PTSD was manifested by recurrent nightmares, impaired sleep, hypervigilance, a startle reaction, panic attacks while in public, verbal altercations while in public, and difficult in his employment as an assistant principal. An October 2017 psychological evaluation from E. Ziegler, Psy.D., states that the Veteran presented a history of "recurrent episodes of suicidal ideation post 2005." Dr. Ziegler reported that: "since his return from Iraq in 2005, the Veteran experienced hypervigilance, intrusive thoughts/memories and nightmares, flashbacks, avoidance, and emotional numbing;" "in addition to the on-going hypervigilance, the Veteran experienced panic attacks indicated by a surge of adrenaline, shortness of breath, a choking sensation, and sweating;" and "he also described periodic feelings of depression characterized decreased pleasure in his usual activities, fatigue, decreased concentration, and suicidal ideation." She concluded that "based on the available documentation and the Veteran's report, I concluded it is at least as likely as not that the psychiatric symptoms resulted in periods of severe social, emotional, and occupation impairment with deficiencies in most areas including work, family relationships, cognition, and mood since at least August 2007 to the present" and "this conclusion is consistent with the GAF scores (i.e. 49, 60, and 65) most frequently given by VA evaluators." In a May 2021 "Psychological Evaluation Supplemental Report," Dr. Ziegler clarified that "in summary, the Veteran's medical records and self-report indicate that he began experiencing symptoms of PTSD after he was deployed to Iraq;" "since then, as outlined above, symptoms of near-continuous depression that affects the ability to function effectively, independently and appropriately, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, poor short-term memory, constricted affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work-like setting), suicidal ideation, obsessional rituals that interfere with routine activities, and impaired impulse control have been consistently documented and reported;" "these symptoms have resulted in severe emotional, social, and occupational impairment with deficiencies in most areas including mood, cognition, family relationships, and work since August 2007 to the present;" and "on the basis of this evidence, I continue to conclude that the Veteran experiences severe emotional, social, and occupational impairment as a result of his service-connected PTSD." Prior to October 11, 2017, the service connected PTSD was shown to be productive of hypervigilance, intrusive thoughts/memories and nightmares, flashbacks, avoidance, emotional numbing, panic attacks, depression, fatigue, decreased concentration, and suicidal ideation. Dr. Ziegler concluded that "these symptoms have resulted in severe emotional, social, and occupational impairment with deficiencies in most areas including mood, cognition, family relationships, and work since August 2007 to the present." Such symptoms warrant assignment of at least a 70 percent rating under Diagnostic Code 9411. While the service-connected psychiatric symptoms were clearly significantly disabling, the record does not establish, and the Veteran does not allege, that the service connected PTSD was productive of total occupational and social impairment warranting assignment of a 100 schedular rating. The evidence does not show that he would have been unable to perform any job such that he had total occupational impairment, or that he had total social impairment. Indeed, during the relative time period, the Veteran was employed as a school administrator. Therefore, the Board concludes that the weight of the evidence demonstrates that a 70 percent schedular rating and no higher was warranted for PTSD prior to October 11, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.