Citation Nr: 21040379 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-23 476 DATE: July 3, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT For the entire appeal period, the Veteran's PTSD was manifested by occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships; and impaired impulse control, to include angry outbursts. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from November 1969 to June 1975. In April 2021, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a) (2019). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Increased Rating: PTSD The Veteran's service-connected PTSD is rated as 50 percent disabling under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 50 percent disability rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted for 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. Id. Finally, a 100 percent disability rating 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 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. In June 2016, the Veteran was provided a VA examination. The examiner noted the Veteran's condition caused occupational and social impairment with reduced reliability and productivity. The Veteran reported living alone. He reported having little contact with his siblings and occasionally contact with an uncle and nephew that he sees every couple of years. He reported having 4 to 5 really good friends and meeting some of them daily for coffee. However, he reported their talks are superficial only. He reported having only as much interpersonal contact as he needs to maintain his sanity, but otherwise prefers to be alone with his service dog and cats. He reported being an active Buddhist and going on retreats. He reported he has about 4500 students on-line and spends much of his time answering questions and helping people with their practice. He reported spending time meditating, mowing the lawn, doing minor repairs, and walking his dog. The Veteran reported that he does not like people and does his best to stay away from them. He stated he feels like he is not a normal person and does not get along with most people. He reported having paranoia for a long time. He also reported having inner voices that would like him to "whack himself" and another that disagrees. He further reported having an aggressive, violent voice that is raging inside. However, he stated through his Buddhist practices, he is able to achieve a state of emptiness where he is happy. The examiner noted the Veteran's overall symptoms were depressed mood, anxiety, difficulty in adapting to stressful circumstancing, including work or worklike setting, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was dressed normal and his hygiene was good. His eye contact was good, and he was cooperative. He appeared anxious and defensive but relaxed somewhat during the interview. He reported his mood as mostly neutral and numbing himself to everything. His attention and concentration were intact, and his mental status was within normal limits. He was found capable of handling his affairs. In May 2017, the Veteran seen at the VA medical center for a mental health visit. The Veteran reported increased depression and not wanting to be around people. He reported a low mood, increased irritability, poor sleep, and loss of interest in things he historically liked to do, to include going into town for coffee. He reported his hearing alert dog provides companionship. His was calm and cooperative and pleasant with good eye contact. He dressed appropriately, had normal hygiene, and normal speech. His thought content was coherent, and goal directed. His mood was flat, congruent with affect. He denied any illicit drug abuse and alcohol abuse. He was oriented to time, place, and person. He had no apparent hallucinations or delusions. He endorsed some passive suicidal ideation, without plan or intent at this time. He stated he has strong protective factors like his beliefs and his service dog. The Veteran was also seen by the psychiatry department during his May 2017 visit. The Veteran additionally reported being more irritable and recently yelling at the pharmacist for not receiving his medication in the mail. He also reported that he has competing voices in his head which tell him to seek help or stop trying. He denied any current suicidal ideation, plan, or intents. He denied homicidal ideation, mania, paranoia, or psychosis. The Veteran's mood was depressed and at times he held back tears. His thought process was circumstantial and affect appropriate. There were no hallucinations or delusions present. He was oriented to person, place, time, and situation. His memory, judgment, and insight were intact. After consideration of the medical and lay evidence, and affording the Veteran the benefit of the doubt, the Board finds that an initial 70 percent evaluation, but no higher, is warranted for the entire appeal period. The Board finds the majority of the medical records shows the Veteran's symptoms have been primarily and consistently manifested by depression, hypervigilance, suspiciousness, social isolation, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. Although the June 2016 examiner did not note suicidal ideation as one of the Veteran's symptoms, the Veteran did report that he has inner voices telling him to commit suicide. He has further reported suicidal ideation in all his following visits and during his April 2021 Board hearing. He also reported having an aggressive and violent voice inside, and an increase in irritability, to include outbursts towards individuals. Therefore, the Board finds the severity of the Veteran's symptoms warrants a rating of 70 percent. However, the Board finds that the evidence of record does not support a rating of 100 percent at any time during the pendency of the appeal. While the Veteran has problems relating to others, he has reported still maintaining a few close friends. The Veteran has also consistently been found to be cooperative with primarily good judgment and thoughts intact. The Veteran was also noted as dressing appropriate and having appropriate hygiene. Thus, the Board finds the majority of the evidence does not show that the Veteran had intermittent inability to perform activities of daily living. Further, the Veteran has continued to play with his dog, handle his daily chores, and teach Buddhism online. The Board recognizes that the Veteran has endorsed suicidal ideation. However, the Veteran has consistently reported no intent or plans, while noting his faith and dog are reasons he wouldn't, thereby not demonstrating that he is a persistent danger to himself. The Board acknowledges the Veteran's recent statements that he has angry outbursts; however, there has been no evidence of irrational behavior, nor has the Veteran demonstrated that he was/is a danger of hurting others. Further, these occurrences do not appear to have grossly impaired the Veteran in his thought process/communication or caused grossly inappropriate behavior and he has continued to meditate to work on his issues. The Veteran has also never been noted as being disoriented to person, place, time, or situation, never endorsed homicidal ideation or hallucinations, and has an intact memory. Thus, the Board finds that a 100 percent rating is not warranted. The Board also acknowledges the Veteran's assertions that he is entitled to a higher rating because his symptoms are worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Board has considered the Veteran's statements and finds them credible and consistent with the rating assigned. Accordingly, the Board concludes that an initial rating of 70 percent, but no higher, is warranted for the Veteran's PTSD for the entire appeal period. The benefit of the doubt doctrine has been considered in this determination. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.