Citation Nr: 21042453 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 09-23 719 DATE: July 13, 2021 ORDER An initial 70 percent disability rating for service-connected posttraumatic stress disorder (PTSD) for the period on appeal prior to February 28, 2012, is granted. A disability rating in excess of 70 percent for service-connected PTSD, from February 28, 2012, is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether prior to February 28, 2012, the Veteran's PTSD symptoms and overall impairment more nearly approximated occupational and social impairment with deficiencies in most areas; however, they have not more nearly approximated total occupational and social impairment. 2. From February 28, 2012, the Veteran's PTSD results in deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating for service-connected PTSD, prior to February 28, 2012, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating greater than 70 percent for service-connected PTSD, from February 28, 2012, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1988 to February 1989 and from November 1990 to May 1991. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for PTSD with a 30 percent disabling rating assigned effective November 19, 2007. The Veteran's notice of disagreement (NOD) was received in July 2008. The RO issued the statement of the case (SOC) in June 2009, and the Veteran's VA Form 9, substantive appeal was received in June 2009. The Veteran testified at a Board hearing in August 2011. A transcript is of record. In March 2020, the Board notified the Veteran that the Judge who held the August 2011 hearing was unavailable and offered the Veteran an opportunity to appear for another hearing. In July 2020, the Veteran declined an additional Board hearing. During the pendency of the appeal, the RO issued a rating decision in July 2012 granting an increased rating for the service-connected PTSD to 70 percent disabling, effective from February 28, 2012. In November 2011, July 2014, March 2016 and July 2020 the Board remanded the case to the RO for further development and adjudicative action. Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to February 28, 2012; and in excess of 70 percent thereafter. The Veteran asserts that his service-connected PTSD is more disabling than is reflected by the current 30 percent disability rating currently assigned for the period on appeal prior to February 28, 2012. The Veteran's service-connected PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. This disability is rated under the General Rating Formula for Mental Disorders, which provides as follows: A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. A 70 percent disability rating is warranted when there is 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. A 50 percent disability rating is warranted for 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. A 30 percent disability rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A November 2007 Vet Center Intake evaluation indicates that the Veteran was diagnosed with PTSD. Veteran reported a negative impact of anxiety issues that have left him struggling with his own identity. He reported using alcohol to cope with extreme anxiety. The Veteran admitted becoming easily frustrated and has had some difficulty maintaining his composure. The Veteran admitted to having intrusive thoughts that are disturbing. The Veteran had physiological effects from his anxiety including light headedness and shaking. The Veteran submits to social isolation in times of extreme anxiety. The Veteran's insight was intact as well as his judgement. The Veteran adamantly denied suicidal and/or homicidal ideations. The Veteran denied any previous gestures and attempts. The Veteran denied any symptoms of a thought disorder. The Veteran had a supportive girlfriend and appeared dedicated to move in a positive direction towards a healthier lifestyle. Vet Center progress notes throughout 2008 reflect that the Veteran went through a separation and was experiencing relationship troubles, anxiety and stress with waxing and waning symptoms. A July 2009 Vet Center progress note reflects that the Veteran reported an altercation with his neighbor. The Veteran reported that he heard screaming, he went to investigate and saw this man who had become physical with his wife. The Veteran confronted the man and impulsively punched him in the face. The therapist noted the Veteran was anxious and fully oriented. Follow up progress notes reflect that concerns were raised about anger issues and a treatment plan was formulated. A January 2008 Vet Center letter, written by a VA social worker and therapist who treated the Veteran since November 2007, includes a recent assessment of the Veteran by counseling staff. The assessment indicates that the Veteran agonized due to disconnection and disassociation with other people. The social worker noted that in the opinion of the Vet Center staff, there is no question that he fits all the criteria for PTSD under the DSM IV. The Veteran had consistent reoccurring re-experiencing through nightmares, dreams and intrusive thoughts. He experienced flashback episodes. The Veteran was estranged from his family and had a flattened effect. Symptoms included irritability, difficulty falling and staying asleep, hypervigilance, and much exaggerated startle response. The Vet Center examiner noted that the Veteran's symptoms have caused clinically significant impairment as he has impaired work habits. The examiner noted that the Veteran was undergoing worsening symptoms and that the Veteran should be considered as having major impairment, including flattened effect, occasional circulatory speech, panic attacks, impairment in memory, disturbance of motivation and mood, isolating emotionally and difficulty in social and family relations. The examiner noted this is evidenced by the Veteran's lack of close friends and inability to discuss his experiences with anyone in his family. The examiner noted that the Veteran has severely impaired impulse and anger control which has been haunting him for years. The Veteran was afforded an initial VA examination in conjunction with his service connection claim for PTSD in January 2008. The Veteran was diagnosed with PTSD under the DSM IV. The Veteran reported that he recently separated from his wife. The Veteran reported a good relationship with his mother and half sister. The Veteran reported having "lots of friends" but stated that he does not confide in them because he is used to taking care of himself and not relying on others. He reported paranoia while driving and stated that he cannot handle crowded places. He also reported chronic sleep impairment due to nightmares. The Veteran reported that his PTSD symptoms led to the separation with his wife. The Veteran reported that he was currently employed as a firefighter. The examiner found that the Veteran's PTSD symptoms included nightmares occurring on a near weekly basis; intrusive thoughts multiple times per week and partial disassociation; triggers to intrusive thoughts and to physiologic reactivity; anxiety with loss of reality resting as anxiety worsens, particularly in crowded places; avoidance behavior, emotional restriction and numbing; decreased memory and concentration capabilities; hypervigilance; and increased startle response. On examination. The Veteran was clean, neatly groomed and appropriately dressed. His psychomotor activity was characterized as restless, his speech was unremarkable, he had a full affect and his mood was described as anxious and depressed. He was fully oriented with unremarkable thought process but with intrusive thoughts about service. With regard to judgment and insight, the examiner found that the Veteran understands the outcome of his behavior and understands he has a problem. The examiner noted that the Veteran uses alcohol as a sleeping aid due to his chronic sleep impairment due to PTSD. The Veteran denied homicidal or suicidal ideation. The examiner found that the Veteran had good impulse control, was able to maintain minimum personal hygiene and had no problems with activities of daily living. The record includes a lay statement from the Veteran's spouse, dated in August 2011. She stated that the Veteran has a volatile side and has shown sides that are not him. She reported that, after the Veteran had recently spent time with a fellow combat soldier, the Veteran accused his wife of being a member of the Taliban because she stated she disagreed with war and the creators of it. She stated that the Veteran enjoys and almost seeks the constant stimulation of competing the daily mission of raising five children. Further, the Veteran's wife stated that the Veteran is so comfortable in a highly stimulated environment that he tends to create one in order to function as he was taught. The Veteran's wife stated this attitude and mindset has caused countless problems between them. She stated that the Veteran's colleagues call him "Bull Dog" because he fights fires like they are the enemies. The Veteran's wife stated that the constant fight and stimulation is what the Veteran seeks everywhere. She reported that the Veteran attends therapy but that his behavior has not changed. She stated that it came to a point where a "No Contact Order" was issued against the Veteran and he had to stay away from their home and children for weeks. Vet Center progress notes throughout 2011 reveal that the Veteran was frustrated and anxious and dealing with marital strain, including a restraining order against him. The Veteran was afforded another VA examination in February 2012. The examiner noted the Veteran had 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. The examiner stated that the Veteran's PTSD has impacted the Veteran's social relationships, particularly his marital relationships. The examiner noted that the Veteran is currently separated from his second wife and in the process of divorce. The Veteran described in detail how his PTSD symptoms impacted his marital relationships. He stated that he has a good relationship with his children and maintains contact with his mother. He reported a good relationship with his two half-siblings. He reported preferring to spend time alone but that he does have about four friends he trusts. He reported having no hobbies or leisure outlets but does exercise on a regular basis with the exercise equipment available at his work. He reported no problems with his employment and no problems with attendance or tardiness. The Veteran stated that he is still anxious, has intrusive thoughts of traumatic experiences during service, becomes angry very easily, and experiences paranoia. The Veteran reported an incident in January 2012 where he became angry and smashed a stool on a table. He denied any other legal problems. The examiner found that the Veteran's PTSD symptoms included anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. An October 2014 Vet Center letter from the Veteran treating therapist indicates that the Veteran's traumatic experiences have remained in the background of the Veteran's life and have had a significant impact on his relationships with his family, friends and his profession. The therapist noted that the Veteran recently went through his second divorce, had an upcoming court case for an assault charge and had missed time at work because of stress. The therapist noted that the Veteran's symptoms included depression, difficulty with sleep and dreams of his experiences, irritability, outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startled response, feelings of detachment, diminished interest in activities and intrusive thoughts of the Persian Gulf and his experiences while there. A December 2015 VA treatment note indicates that the Veteran was employed as a firefighter and at times struggles with sleep. A June 2016 Vet Center letter reveals that the Veteran experiences recurrent, involuntary, and intrusive distressing memories of his combat experience and is plagued with significant psychological distress when triggered and reminded of deployment. The Veteran has difficulty managing symptoms of anxiety and hyper vigilance. The Veteran has minimal interpersonal communication and avoids close relationships with others, which has negatively impacted friendships, his past two marriages and his dating life. The letter notes that since the Veteran has been working with the Springfield Vet Center, he has displayed difficulty experiencing positive emotions and it has also become clear that he holds amplified negative beliefs about himself, others, and the world based on his actions and what he has witnessed overseas. The Veteran is often impatient with others and can be very tense at times. The letter states that the Veteran's PTSD is of such severity that it produces occupational and social impairment with deficiencies in most areas including social relationships, thinking and mood, due to symptomatology that includes: depression, anxiety, dysregulated sleep, irritability, difficulty concentrating, difficulty establishing and maintaining interpersonal relationships, and struggling to adapt to stressful circumstances. The counselor recommended that an upgrade is justified evidenced by the information above. The Veteran was most recently afforded a VA examination in February 2021. The examiner noted the Veteran had 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. The Veteran reported that he has very limited friends and "will not interact with others when his children play soccer (although watching them play is therapeutic for him, he cannot be near the parents)." He stated that he was looking for someone to cut him off while driving so that he can chase them down for a fight. He reported that he threatened to kill his ex-wife's new boyfriend when the boyfriend harassed a friend the Veteran was with at that time and the Veteran is currently in court for that. The examiner stated that although the current symptoms don't interfere with his ability to work, it does make him more reckless. The examiner stated that the Veteran's social functioning is also significantly compromised due to his PTSD symptoms. The examiner stated that the Veteran's PTSD symptoms include depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, suicidal ideation, neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The examiner noted that the Veteran was initially quite guarded when he entered the interview but slowly became more relaxed and engaging. He was casually dressed and fairly groomed. His thought process was logical, coherent and goal-directed. His speech was fluent with normal rate, rhythm and volume. The examiner stated that he appeared to be a good historian and found that he is capable of managing his own financial affairs. Regarding functional impairment, the examiner stated that the Veteran is very irritable and is not able to work with some superiors and even colleagues due to not getting along with them. The examiner noted that the Veteran has received numerous disciplinary letters advising him of his inability to respect/get along with superiors or colleagues but the examiner noted that otherwise he does not leave early, come in late or miss work altogether. The overall evidence of record has demonstrated that, throughout the appeal period, the Veteran consistently experienced depressed mood, anxiety, chronic sleep impairment, mild memory loss, impaired impulse control such as unprovoked irritability with periods of violence, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. During the last VA examination in February 2021, the Veteran was noted to also experience suicidal ideation, neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. In order to meet the criteria for a 70 percent disability rating prior to February 28, 2012, the Veteran's disability would have to be manifested primarily by occupational and social impairment, with deficiencies in most areas due to symptoms such as suicidal ideation; obsessional rituals; intermittently illogical speech; near-continuous panic or depression; 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; and an inability to establish and maintain effective relationships. In this regard, the Veteran has exhibited impaired impulse control such as unprovoked irritability with periods of violence; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. Although he did not exhibit all of the symptomatology consistent with a 70 percent disability rating, resolving all doubt in favor of the Veteran, the Board finds that overall, his disability picture prior to February 28, 2012 more nearly approximates the criteria for a 70 percent disability rating and does not significantly differ from the symptomatology revealed during his February 2012 VA examination which formed the basis for his current 70 percent disability rating from February 28, 2012. See Mauerhan, 16 Vet. App. at 442. The Board has additionally reviewed the evidence to determine if a disability rating in excess of 70 percent may be assigned for any point during the period on appeal. A 100 percent disability rating for PTSD requires symptoms more nearly approximating total occupational and social impairment. The preponderance of the evidence of record demonstrates that the Veteran is not entitled to a 100 percent disability rating at any point during the appeal period, as the evidence does not show symptoms and overall impairment more nearly approximating total occupational and social impairment. Specifically, the Veteran has not been shown to have total occupational impairment as he has maintained employment throughout the appeal period. While he reported receiving numerous disciplinary letters advising him of his inability to get along with superiors or colleagues, he stated that otherwise does not leave early, come in late or miss work altogether. During the appeal period, the Veteran has not experienced delusions or hallucinations, and has been oriented with no impairment of thought or communication. While the February 2021 examiner noted that the Veteran experiences suicidal ideation and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, there is no other indication of suicidal ideation or intermittent inability to perform activities of daily living at any point during the appeal period. Notably, a January 2019 Vet Center progress note indicates that the Veteran did not endorse any self-harming behaviors at any point throughout treatment. Additionally, while the Veteran reported a few instances of violence or threat of violence during the appeal period, no medical professional has characterized the Veteran as being a persistent danger of hurting himself or others at any time during the appeal period. Further, no VA examiner has characterized the Veteran's PTSD symptomatology as worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). The Veteran has consistently reported maintaining a good relationship with his four children and thus there is no indication of total social impairment. The Veteran's symptomatology does not reflect total occupational and social impairment at any point during the period on appeal. In sum, considering all applicable rating criteria, as well as symptoms of similar severity and frequency, the degree of impairment owing to the Veteran's service-connected PTSD during the period on appeal prior to February 28, 2012, warrants a 70 percent disability rating, and no higher. Accordingly, as the overall disability picture more nearly approximates the criteria for a 70 percent disability rating prior to February 28, 2012, the assignment of a 70 percent rating is warranted. However, for the reasons above, the criteria for the assignment of a rating in excess of 70 percent for PTSD are not met or approximated at any point during the period on appeal. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.