Citation Nr: 21041621 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-14 372 DATE: July 9, 2021 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD manifested through occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, thinking or mood, due to such symptoms as impaired impulse control, unprovoked irritability with periods of violence. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to January 1993. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A July 2020 Board decision denied a rating in excess of 50 percent for PTSD. The Veteran appealed the Board's decision to the United States Court for Veterans Claims (CAVC). In a March 2021 Joint Motion for Remand (JMR), CAVC remanded the Board's decision and the parties found the Board did not provide an adequate statement of reasons and bases for its decision and failed to ensure VA's duty to provide notice was fulfilled. Specifically, the July 2020 Board decision did not consider a September 2012 questionnaire form the Veteran's private physician, Dr. Gouldy, in its reasons or bases supporting its finding that the Veteran's symptoms are adequately contemplated by the 50 percent rating. And, the Board failed to ensure that the Veteran's then representative was provided with the April 2020 supplemental statement of the case (SSOC), which was sent to an incorrect address. However, as the Veteran's current representative has received the April 2020 SSOC, the parties agreed that the Veteran should be afforded 90 days to submit additional evidence or argument to the Board. 03/02/2021, CAVC Decision. In this regard, the Veteran's representative did submit additional argument in May 2021. 05/14/2021 Third Party Correspondence. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Entitlement to an initial rating in excess of 50 percent for PTSD. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that "the presence of all, most, or even some, of the enumerated symptoms" is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, "VA must engage in a holistic analysis" of the severity, frequency, and duration of the signs and symptoms of the veteran's mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula, in pertinent part, a 50 percent is warranted if the Veteran experiences 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent is warranted when the Veteran experiences 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. 38 C.F.R. § 4.130. A 100 percent rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A January 2012 rating decision assigned an initial rating of 50 percent for PTSD, effective June 20, 2011. And, an April 2020 rating decision granted service connection for major depressive disorder, which was incorporated into the Veteran's evaluation of PTSD, which remained 50 percent disabling. As noted above, in order to warrant a higher rating, the Veteran's disability would have to be manifested by at least occupational and social impairment with deficiencies in most areas. A December 2011 VA examination also diagnosed the Veteran with PTSD, alcohol abuse in full remission, and cocaine use in full remission. The examiner opined that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking and/or mood. The Veteran's symptoms were noted to include: depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; difficulty in understanding complex commands; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. The examiner noted a number of major social function changes due to the Veteran's mental health condition, to include crying uncontrollably for no apparent reason, fear of someone trying to hurt him, suicidal ideation at times, conflicts with his spouse and work supervisor, quickness to anger, and social isolation. The Veteran described having good relationships with his parents and children, as well as having been in conflict with his siblings and spouse. The Veteran also indicated that he had missed work for seven days due to feeling depressed and anxiety. The examiner noted the Veteran's history of violent behavior described as physical violence towards his spouse. The Veteran also demonstrated a delusional history occasionally including paranoid thoughts, which manifest in feeling that people are scheming against him, talking badly about him, or making fun of him. The examiner also noted hallucination history was present occasionally, including hearing someone in the house or seeing someone out of the corner of his eye. Obsessive compulsive behavior was present but not severe enough to interfere with routine activities. 12/28/2011, C&P Exam; 12/28/2011, C&P Exam. A September 2012 psychiatric/psychological impairment questionnaire was completed by Dr. Gouldy, the Veteran's private treating clinician, who noted diagnoses of PTSD and major depressive disorder. The Veteran's symptoms and clinical findings were noted to include: deficiencies in family relations; deficiencies in work or school; depression affecting the ability to function independently, appropriately, and effectively; deficiencies in mood; difficulty in adapting to stressful circumstances; intrusive recollections of a traumatic experience; grossly inappropriate behavior; unprovoked hostility and irritability; deficiencies in judgment; suicidal thoughts; and, hypervigilance. The clinician described the Veteran's PTSD as severe. And the clinician specifically remarked that the Veteran's severe bouts of anger interfere with his social and occupational functioning. The clinician indicated that the Veteran's impairments would cause him to be absent from work more than three times a month. 10/15/2012, Medical Treatment Record Non-Government Facility. A May 2019 VA examination noted diagnoses of PTSD and major depressive disorder. The examiner indicated that the Veteran's depression is a progression of his PTSD. The examiner opined that the Veteran has occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms were noted to include: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. The examiner noted depressed feelings and uncontrolled crying, and that the Veteran denied suicidal thoughts. The Veteran reported being the process of getting divorced, that he had limited and strained relationships with family members, and that he only had a couple of people with whom he could talk. The Veteran also described his anger issues, to include his spouse calling the police several times and pressing charges on at least one occasion. Additionally, the Veteran indicated that arguments with his co-workers and supervisors prevented him from any promotions in fifteen years. The examiner remarked that the Veteran's PTSD impairs his occupational functioning because he is easily distracted, unable to concentrate on tasks, sleep impairment interferes with his ability to focus, and that he absent from work a couple days per month due to poor sleep. 05/24/2019, C&P Exam. After review of the competent and probative evidence, the Board finds that a rating of 70 percent, but no higher, is warranted throughout the period on appeal. The Board acknowledges the May 2019 VA examination found the Veteran to have occupational and social impairment with reduced reliability and productivity. The Board places great probative weight on the May 2019 VA examination, insofar as the examiner describes the Veteran's symptoms that severely impair his social and occupational functioning with deficiencies in most areas. Specifically, the Veteran's anger issues result in unprovoked irritability with periods of violence, to include his spouse pressing charges against him. Additionally, the Board also places probative weight on the December 2011 VA examination, which noted the Veteran's history of violent behavior described as physical violence towards his spouse, as well as delusions and hallucinations of people scheming against him. And, the Board places great probative weight on the September 2012 questionnaire completed by the Veteran's then treating clinician, which specifically noted that the Veteran's severe bouts of anger interfere with his social and occupational functioning. The Board finds that the next-higher rating of 100 percent is not warranted as the competent evidence does not reflect total social and occupational impairment. The May 2019 VA examination report reflects that, despite lack of promotion, the Veteran was maintained employment for 15 years with the same employer. Additionally, the Veteran has relationships with some his family members and is able to talk with a couple of friends. Although the Veteran did endorse suicidal ideation in both the December 2011 VA examination and the September 2012 questionnaire, neither clinician noted that the Veteran had a plan or intent to harm himself and otherwise not in persistent danger of harming himself or others. Such is contemplated and compensated by the current 70 percent rating. Although the Veteran has had persistent difficulty in maintain an effective relationship with his spouse, the Board finds that such social function, though limited, does not reflect total social impairment. Regarding social impairment, the record reflects that he has been married for 51 years. Irritability around others was noted. A 2016 VA examination report notes that the Veteran maintains close contact with his two adult children and five grandchildren. In this regard, the Veteran did endorse suicidal ideation, but denied plan or intent to harm himself and otherwise not in persistent danger of harming himself or others. Such is contemplated and compensated by the current 70 percent rating. Although the Veteran has had persistent difficulty in maintain an effective relationship with his spouse, the Board finds that such level of social impairment, though limited, does not reflect total social impairment. See Total, Merriam-Webster, at https://www.merriam-webster.com/dictionary/total (defining "total" as, among other things, "absolute, utter"). Additionally, as another factor, the record is devoid of indications that the Veteran exhibits gross impairment in thought process or communication and any inability to perform activities of daily living, including minimal personal hygiene. As such, the Board finds that when viewed against other evidence of record, to include the treatment records and statements, that the Veteran's overall disability picture is most nearly approximated by the 70 percent evaluation, and not a 100 percent rating, throughout the period on appeal. 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.