Citation Nr: 21041961 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-61 397 DATE: July 10, 2021 ORDER For the period on appeal, a 70 percent rating, but no higher, for PTSD is granted. FINDING OF FACT The severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas at any point during the appeal period but without total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2000 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision. This matter was remanded in a January 2019 Board decision for a new VA examination. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Increased rating for PTSD Legal Criteria Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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 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. 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. When evaluating the level of disability from a mental disorder, the rating agency 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. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Factual Background & Analysis The Veteran's service-connected PTSD has been assigned a 30 percent disability rating prior to March 10, 2020 and a 50 percent disability rating from that date thereafter under Diagnostic Code (DC) 9411. In a March 2013 statement, the Veteran described multiple military sexual traumas (MST) during service. She stated that these events have impaired her socially because she now distrusts men. She now only does social activities with her children or when volunteering for hospice agencies. She stated that she experiences heightened levels of anxiety and depression. April 2013 VAMC mental health treatment notes document symptoms of irritability, anger issues, relationship problems and sleep disturbances. A September 2015 VAMC psychiatric clinic encounter notes marital stress and feelings of being "unsupported" by her husband who is unemployed. The Veteran was noted to be employed by the Department of Labor. Mood was noted to by dysphoric and affect was anxious, tearful, and congruent with stated mood. No suicidal or homicidal ideation was indicated. The Veteran reported poor sleep quality. The Veteran scored a 10 on PHQ-9 Depression Screening which was noted to indicate moderate depression. She reported that her depressive symptoms make it "somewhat difficult" to perform her work, take care of things at home, or get along with others. In the April 2014 NOD the Veteran explained that she attempted to have a new VA PTSD examination scheduled at the Fort Roots VA clinic, but her appointment was never scheduled. In the October 2016 VA Form 9 (substantive appeal), the Veteran reported having impaired judgment following her first MST in 2001 including bouts of substance abuse. She also noted having a low libido which has impacted her marital life. She conveyed experiencing disturbances of mood and motivation, she continually fights fatigue and has flattened affect. Further, she explained having difficulty establishing work and social relationships. She has not held a job longer than 2 years following deployment. She has had two failed marriages and separate incidents of contracting STDs including an incident of domestic violence while she was pregnant. In an October 2016 statement the Veteran reported having irrational social behavior following MSTs during service. She reported engaging in multiple unhealthy romantic relationships which caused her to contract STDs. She attributed her romantic choices to emotional turmoil caused by MSTs. She further reported symptoms of insomnia, paranoia, low self-esteem, and internalized rage. January 2017 Primary Care notes document a flare-up of PTSD symptoms including feelings of paranoia, unrealistic/traumatic ideations, and disturbed sleep. An August 2017 VAMC mental health note documents a worsening of PTSD symptoms. The Veteran stated that her anxiety had worsened and that she tends to catastrophize situations. She reported a vague sense of doom all the time and an increase in jumpiness due to loud noises. She reported difficulties with sleeping and with weight gain. The Veteran was afforded a VA PTSD examination in September 2017. The Veteran reported having three children and having a good relationship with them. She is employed at the Department of Labor in administrative work and is working towards a master's degree. She reported having a worsening mood, increased irritability, and being short with her kids. She stated that she sleeps 4 to 6 hours a night and dreams about being assaulted by her ex-husband and has some dreams about her service in a mortuary in Iraq. Symptoms noted to actively apply the Veteran's diagnoses were depressed mood, anxiety, and chronic sleep impairment. The "behavioral observations" portion of the examination report documented no abnormalities. The examiner remarked that the Veteran has mild PTSD symptoms and no occupational impairments related to her PTSD. A September 2017 VAMC mental health treatment note documents symptoms of irritability, depressed feelings, symptoms affecting her children. She reported being tearful and hopeless when at home. She stated that she has to pretend to be okay while at work which is exhausting. In a November 2017 correspondence the Veteran reported that her symptoms are worse than what was documented during the September 2017 VA PTSD examination. She conveyed that her reoccurring dreams are so intense that she wakes up in sweats and she is unable to go back to sleep. She stated that her oldest child is in therapy because of her unstable mood and aggression and her middle child walks on eggshells around her. She noted that she has cursed at her supervisor a few times during disagreements. Further, she indicated that she has anxiety while driving when seeing covered potholes due to fear of IEDs during service. She has anxiety attacks while driving due to erratic drivers and sirens causing her to pull over in traffic while driving with her children. She further conveyed that her PTSD puts a strain on all relationships. She described an incident where she cursed loudly at a male coworker who came up behind her in an office setting. She further described a road rage incident where she was driving with her child and followed a male driver and made him pull over and he yelled obscenities at her. She emphasized that she is dependent on Citalopram and medications to help keep her stable due to the severity of her PTSD symptoms. A January 2019 VAMC mental health treatment note documents some thoughts of passive suicidal ideation but no intent or plan. She stated that she has overwhelming anxiety. She also relives experiences of smelling burn flesh and has a generally depressed mood. The Veteran attended another VA PTSD examination in March 2020. She reported generally good relations with her children but admitted that she sometimes feels overwhelmed with the responsibility of caring for them. She has some friends with whom she socializes but self-isolates at times. She reported difficulty establishing and maintaining romantic relationships, indicating that she feels the need to dominate her romantic partners and has difficulty with intimacy. She stated that she has been employed on a contract basis as a counselor at a middle school and at a behavioral hospital since August 2019. She reported a lack of motivation at times, indicating that she avoids job duties. She generally gets along with her supervisor and coworkers and has a good rapport with the students she works with. The Veteran stated she has feelings of anger, anxiety, and increased irritability. She drinks alcohol to cope with chronic anger and irritability. She has difficulty interacting with her children in a positive manner. She reported chronic worry about her daughters' health and well-being and tends to catastrophize. She is sometimes overwhelmed with a feeling of impending doom. She reports intrusive memories and nightmares of her military trauma. She reports sleep disturbances, indicating that she has difficulty getting to sleep and staying asleep. She sometimes feels that her home smells like a mortuary. She reports hypervigilance and exaggerated startle response. The veteran reports feelings of guilt and anger over her sexual assault. She tends to feel that she has to be dominant in relationships. She also seeks out violent athletic activities, such as rugby. She is argumentative with family members and admits that she can be curt with coworkers and supervisors. She is very opinionated. She tends to feel lonely, even when surrounded by family. She reports feelings of worthlessness and guilt, stating, "I feel like I am a lost cause." Symptoms noted to actively apply to the Veteran's diagnoses were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. The "behavioral observations" portion of the examination report documented no observable abnormalities. In a July 2020 correspondence the Veteran stated that she has reoccurring fights and arguments with her daughter. She also stated that she was without a job until 2011 due to severe symptoms of adjustment disorder with anxiety. When she did obtain employment at the Pine Bluff Arsenal, she quit within a year because of the mental stress and paranoia. She also quit a job at the Fort Roots VA because her irritability and inability to work alongside non-military clerks led her to getting into numerous altercations with staff members. She further communicated that she was removed from a graduate program at UALR in 2013 because she lacked professionalism and was unable to regulate my emotions and communicate without derogatory language. She further conveyed that her children were removed from her home by DHS in 2012 because of her aggression, irritability, and suspected abuse. The Veteran stated that she purchased pills in 2015 with the intent to commit suicide while she was pregnant. The Veteran emphasized her belief that the following symptoms actively apply to her diagnosis: impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control, suspiciousness, panic attacks that occur at more than once a week, flattened affect, gross impairment in thought processes or communication, suicidal ideation, persistent delusions or hallucinations and grossly inappropriate behavior. After a careful review of the lay and medical evidence the Board finds that a 70 percent disability rating for PTSD is warranted for the entire appeal period. Notably, an April 2013 VAMC mental health treatment notes document symptoms of irritability, anger issues, relationship problems and sleep disturbances. A September 2015 VAMC psychiatric clinic encounter notes that the Veteran scored a 10 on PHQ-9 Depression Screening which was noted to indicate moderate depression. She reported that her depressive symptoms make it "somewhat difficult" to perform her work, take care of things at home, or get along with others. In the October 2016 substantive appeal the Veteran reported having impaired judgment following her first MST in 2001 including bouts of substance abuse. She conveyed experiencing disturbances of mood and motivation, she continually fights fatigue and has flattened affect. Further, she explained having difficulty establishing work and social relationships including socially isolative behavior. She has attributed her poor choice of romantic partners to her psychiatric symptoms and has consistently reported having strained relationships with her children due to her irritability. She reported instances of cursing at her supervisor when disagreeing with him. The Veteran also reported suicidal thoughts. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) ("the 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."). The Board next determines that a preponderance of the evidence weighs against finding that a disability rating in excess of 70 percent for PTSD is warranted at any point during the period on appeal. A higher 100 percent rating is not warranted at any point, because the Veteran has never demonstrated total occupational and social impairment or symptoms of similar severity, frequency, or duration as to those contemplated by the 100 percent criteria. There has been no gross impairment of thought processes or communication; nor has there been any indication of disorientation, delusions, or grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss of the severity contemplated by a 100 percent rating. The record indicates the Veteran has regularly communicated appropriately with coherent speech and always appropriately dressed during appointments with good hygiene noted consistently. Throughout the entire period on appeal, the record lacks any indication of delusions or hallucinations suffered by the Veteran. In that regard, the record reflects that the Veteran maintained substantially gainful employment at the Department of Labor while completing a master's degree in 2018. She has also maintained some social relationships with a few friends over the years. The Board does not doubt the Veteran's claims that her PTSD symptoms have made it extraordinarily difficult to maintain employment, especially considering that she is a single parent. However, disability ratings are assigned based on the average impairment of earning capacity. After reviewing the totality of the evidence, while the Veteran's PTSD symptoms are no doubt severe, the evidence does not demonstrate that they are so severe as to cause impairment such that a higher 100 percent rating is warranted. Notably, the September 2017 VA examiner remarked that the Veteran mild PTSD symptoms and no occupational impairments related to her PTSD. The Veteran reported to the March 2020 VA examiner that she generally gets along with her supervisor and coworkers and has a good rapport with the students she works with. In sum, the evidence shows that the Veteran has obtained higher education while maintaining substantially gainful employment during the appeal period which tends to substantiate that she has maintained a somewhat high degree of functioning over the years, despite the acknowledged severity of her PTSD symptoms. Considering the foregoing, while the Veteran's PTSD was significantly disabling during this period, and she occasionally exhibited symptoms contemplated by the higher 70 percent rating criteria, the totality of the evidence does not demonstrate that her service-connected PTSD symptomatology approximated symptoms causing total social and occupational impairment in most areas of functioning. 38 C.F.R. § 4.130, DC 9411. To that extent only, the claim is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.