Citation Nr: 23022331 Decision Date: 04/14/23 Archive Date: 04/14/23 DOCKET NO. 18-30 758 DATE: April 14, 2023 ORDER Entitlement to an initial rating of 70 percent (effective May 4, 2006), but no higher, for PTSD is granted. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD is manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent, but no higher, have been met from the date of service connection. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2016, by a Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In the August 2016 rating decision, the AOJ granted the Veteran a rating of 50 percent for his PTSD. On November 23, 2016, VA received the Veteran's VA Form 21-526b, Veteran Supplemental Claim, indicating his disagreement with the rating granted to him for PTSD. In December 2016, VA treatment records, material to the Veteran's claim were added to the file. In March 2017, the AOJ increased the Veteran's PTSD rating to 70 percent, effective November 23, 2016. In February 2018, the Veteran applied for a total disability rating based on individual unemployability due to service-connected disabilities, based in part on PTSD. Based on this current review of the procedural history, the Board finds that this appeal stems from the initial grant of service connection and has characterized the issue above based on this review. In an April 2018 rating decision, the AOJ continued to rate the Veteran's PTSD as 70 percent disabling. The Veteran submitted a notice of disagreement regarding such in May 2018. In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. As noted in prior Board decisions, the transcript is not available due to equipment failure and is not associated with the record. The Veteran was advised of such in a November 2021 letter and did not choose to schedule another hearing. Further, in communication with his congressman's office, he acknowledged that the recording was lost and that he was still awaiting a decision, which supports his waiver of the right to another hearing. The Board notes that the time for response to the November 2021 letter advising the Veteran of his right to schedule another hearing has expired, to include when considering the additional time afforded due to the mail delay. Under these facts and procedural history, the Board finds it may proceed without further delay. In February 2022, the Board remanded the matter for development. After such time, additional evidence was added to the file that had not been addressed by the AOJ. Accordingly, in January 2023, the Board remanded the matter for readjudication by the AOJ. The appeal now returns to the Board for further appellate consideration. Entitlement to an initial rating in excess of 50 percent prior to November 23, 2016, and in excess of 70 percent thereafter for PTSD. The Veteran asserts the severity of his symptomatology associated with his service-connected PTSD warrants higher ratings than those assigned. Such disability is currently evaluated as 50 percent disabling as of May 4, 2016 (the date of service connection) to November 23, 2016, and 70 percent disabling thereafter. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Throughout such period, the Veteran's PTSD is rated under Diagnostic Code 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. The General Rating Formula, in pertinent part, provides a 50 percent rating 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. A 70 percent 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent 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 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. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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). From the date of service connection to November 23, 2016, the Veteran's PTSD is rated as 50 percent disabling. Therefore, to warrant a higher rating, the evidence must show that such disability resulted in psychiatric symptomatology that more nearly approximates occupational and social impairment with deficiencies in most areas or total occupational and social impairment. With respect to the Veteran's psychiatric symptomatology during such period, the August 2016 VA examination shows the Veteran's PTSD symptomatology included depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; disturbances of motivation and mood; inability to establish and maintain effective relationships; and neglect of personal appearance and hygiene. The examiner indicated the Veteran exhibits persistent and exaggerated negative beliefs/expectations about himself, others, or the world; a persistent negative emotional state; persistent inability to experience positive emotions; and markedly diminished interest or participation in significant activities. The Veteran reported intrusive thoughts, flashbacks, hypervigilance, hyper-startle response, excessive apprehension, worry, irritability, and sadness. The Veteran reported that his panic attacks are associated with flashbacks, a choking sensation, palpitations, and trembling. The Veteran reported that the frequency of the panic attacks increased since he began to interact with VA in coordination with filing his claims and seeking treatment. The Veteran also reported his hypervigilance, which manifests in checking locks and doors. The Veteran reported that he is triple checking the locks and doors all night. The Veteran indicated that he avoids social interaction, crowds, and war movies. The Veteran reported taking two psychotropic medications for his condition. At the time of the examination, the Veteran reported being married to his wife of 39 years; the Veteran does not have children. The Veteran did not discuss any relationships with family or friends beyond his wife. The VA examiner noted the Veteran was "marginally" groomed and "marginally" nourished as well as angry and nervous about having the recount his in-service stressors. The VA examiner opined the Veteran's occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. An October 2016 VA treatment record reflects the Veteran's report of suicidal ideation for several days in the prior month. The Veteran also reported that in the prior year, he had suicidal ideation. The August 2016 VA examination and VA treatment records shows that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating, such as obsessional rituals which interfere with routine activities; neglect of personal appearance and hygiene; an inability to establish and maintain effective relationships; and near-continuous depression affecting the ability to function. In the pertinent time period, the evidence does not show that the Veteran exhibited any of the symptoms associated with a 100 percent rating. The Veteran was associated to time and place; did not exhibit gross impairment in thought processes or communication; did not demonstrate persistent delusions or hallucinations; did not exhibit or report memory issues; and was able to perform activities of daily living. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria.?Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017).? However, the severity, frequency, and duration of the Veteran's suicidal ideation did not rise to the level contemplated by the 100 percent disability rating.? The Veteran denied thoughts, intent, or a plan involving self-harm during the August 2016 VA examination. The Board concludes that for the period of May 4, 2016, to November 22, 2016, the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent.? The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating.? As of November 23, 2016, the Veteran's PTSD is rated as 70 percent disabling and, as such, the evidence must demonstrate psychiatric symptomatology resulting in total occupational and social impairment to warrant a higher rating. Upon VA examination in January 2017, the Veteran's PTSD symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; impaired impulse control, such as unprovoked irritability with periods of violence. At the time of the examination, the Veteran had been married for 40 years; his wife accompanied him at his examination. The Veteran's wife reported that the Veteran's mood changes from minute to minute, to include in reaction to news which the Veteran will obsess over. She reported that the Veteran broke his glasses a few weeks prior when he threw them when he was upset. The Veteran has one brother, who he no longer speaks to due to differences. The Veteran denied having friends but has associates; he sees these associates about once a week to play cards and have dinner. The Veteran reported he avoids triggering subjects with them in order to get along with them. The Veteran reported he has no other friends or hobbies. The Veteran reported he has no difficulties with the activities of daily living as he independently attends to his grooming and hygiene on a daily basis as well as to his personal and household chores. The VA examiner indicated that the Veteran's PTSD symptoms continue to negatively impact his social and occupational functioning. At the time of the January 2017 examination, the Veteran reported that he was still working. A part of his occupation included teaching and supervising eight inmates, the Veteran reported that he is easily angered in the workplace, "barks" at the inmates very easily, and feels "intolerant" of them. The Veteran reported that he also responds to his supervisors in this manner. The VA examiner noted the Veteran has occupational and social impairment with reduced reliability and productivity. The Veteran denied active suicidal and homicidal ideation as well as auditory and visual hallucinations. The VA examiner noted the Veteran was dressed appropriately for the examination; had sufficient grooming and hygiene; and that the Veteran noted no problems with the activities of daily living. The examiner indicated the Veteran had good eye contact, linear thought processes, normal speech, fair judgment, and fair insight. The examiner noted the Veteran's concentration and memory were sufficient for the examination, but that the Veteran noted difficulty with both. The examiner noted the Veteran's wife's concern with the Veteran's passive suicidal ideation. Upon examination in April 2018, the Veteran's PTSD symptomatology included depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and suicidal ideation. The Veteran reported passive suicidal ideation that occurs monthly but denied any escalation of such ideation. With regard to the Veteran's occupational and social functioning, the Veteran reported that he was still married to his wife of 40 years, with whom he lives. The Veteran reported that his wife is supportive of him. The Veteran denied having a relationship with his only brother and reported having no close friendships. He reported that his closest friend had died seven months prior, and he has not established any new relationships as he "can't do people." The Veteran reported that after his retirement in March 2018, he joined a senior bowling league, he noted that he participates but is quiet. The Veteran continued to play cards with a group weekly. The Veteran noted that his social activity had increased since the previous evaluation but denied any significant changes in his social relationships, describing himself as a "loner" still. The VA examiner noted that during the examination, the Veteran was alert and oriented; appropriately dressed and groomed; cooperative and pleasant; and responded to questions appropriately. The examiner indicated the Veteran exhibited normal speech; an appropriate attitude; normal intellectual functioning; appropriate behavior for the setting; and logical thought processes. The VA examiner opined the Veteran has occupational and social impairment with reduced reliability and productivity. In April 2022, the Veteran was afforded another examination to assess his PTSD. At such time, the Veteran's PTSD symptomatology included anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or work like setting; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner noted the Veteran's last reported active suicidal ideation to have occurred in June 2021 while the Veteran was at home. Such episode resulted in the Veteran being transported to the hospital for evaluation and treatment of suicidal ideations, such hospitalization lasted three days. The Veteran reported that such episode occurred as a result of a bad day when things were not going well for him which led him to feeling frustrated at not being able to do things for himself and feeling useless. The Veteran stated that he has not felt like that or had those thoughts since. The Veteran reported mood disorder symptoms, however the examiner noted that these do not meet the criteria for any mood disorder diagnosis. Further, such symptoms did not result in significant impairment of his daily functioning on a regular basis. The examiner noted the Veteran's report of increasing, frequent irritability which results in occasional displays of moderate verbal aggression as well as increased hypervigilance at home and in the community since his previous examination. The Veteran also reported an increased frequency of distressing ideations and nightmares since his previous examination. With regard to the Veteran's social functioning, the VA examiner noted the Veteran was currently moderately socially impaired. The examiner noted the Veteran's wife of 44 years is supportive and that the Veteran shares a close, loving relationship with her, with occasional discord due to the Veteran's frequent displays of emotional distress. The Veteran reported having no relationship with his one brother and having no close friends, but noted he has several acquaintances. The Veteran reported spending most of his time at home with his wife, completing household chores, occasionally watching television, reading, participating in a bowling league with his wife, or spending time outdoors when the weather permits. The Veteran prefers to spend his time at home, where he feels most secure and comfortable. With regard to his occupational functioning, the Veteran reported he retired in March 2018 and could not recall any period during which he experienced significant impairment in his functioning as an employee. The Veteran did note that in the last couple years of his employment, he found his employment less personally rewarding. The VA examiner opined the Veteran has occupational and social impairment with reduced reliability and productivity. The VA examiner observed that the Veteran was well-groomed, oriented, and appropriately dressed. The Veteran did not display any abnormal or inappropriate behavior during the examination; he was open and cooperative. The Veteran had normal speech and exhibited no evidence of thought disorder or psychotic thinking. The examiner noted the Veteran's concentration and memory appear to be mildly impaired but that his insight and judgment are intact. VA treatment records reflect the Veteran's December 2016 report of intermittent suicidal ideation, particularly during times of stress. The Veteran reported the most recent suicidal ideation occurred in November 2016. However, the Veteran denied intent, plan, acts of furtherance, or access to a firearm. The Veteran's wife called police about a year prior to have their gun removed from their home, due to her concern about his level of anger. She reported that his anger leads to him getting worked up very easily to the point of suicidal ideation. In January 2017, the Veteran denied suicidal ideation to VA clinicians but reported hypervigilance, irritability, and intrusive memories. March 2017 VA treatment records reflect that the Veteran again denied suicidal ideation, however, in March 2018, the Veteran and his wife reported his anger had increased and that the Veteran has been having suicidal ideation, to include calling the crisis line the prior week. He denied having active suicidal ideation at the time of the report. In December 2018, the Veteran denied suicidal ideation, but reported his history of such. In September 2020 and December 2020, the Veteran denied suicidal ideation; in December 2020, he reported he stopped participating in his bowling league. In June 2021, VA treatment records reflect that the Veteran had an episode of severe anxiety/panic, during which he locked himself into a bathroom that contained knives and reported he was going to hurt himself. The Veteran's wife called the National Veteran Crisis Line as well as the police, who took him to a nearby emergency room. The Veteran was assessed by a psychiatrist and discharged from the emergency room the same night. Later the same month, the Veteran reported being back to baseline, no longer experiencing suicidal ideation, intent, or plan. A February 2022 VA treatment record reflects the Veteran's report of occasional passive suicidal ideation. A February 2023 VA treatment reflects the Veteran's report that six months prior, he pushed his wife and threatened to commit suicide, however he had no actual plan or intent. In a written statement dated September 2019, the Veteran's wife, M.A. reported the Veteran's difficulty concentrating, irritability, anxiety, poor social skills, suicidal tendencies, forgetfulness, verbal abuse, and self-medicating. She reported the Veteran's nightmares which have resulted in him jumping out of bed and injuring himself in his sleep. M.A. submitted another statement in July 2021 indicating that the Veteran's PTSD symptoms have increased since her previous statement. She reported his anger and irritability outbursts as well as his increased, constant anxiety. M.A. reported the circumstances leading up to the June 2021 episode which resulted in the Veteran locking himself in the bathroom threatening to kill himself and her calling the police. M.A. reported that the Veteran is not able to do much himself, cannot concentrate, and spends much of the day sleeping. VA treatment records; the January 2017, April 2018, and April 2022 VA examinations; and the lay statements submitted by the Veteran's wife show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating, such as suicidal ideation; near-continuous depression and anxiety; impaired impulse control such as unprovoked irritability with periods of violence; and the inability to establish and maintain effective relationships. The Veteran's symptoms associated with a 100 percent rating include intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene. However, the Board notes the Veteran is not disoriented as to time or place, is not experiencing any delusions or hallucinations, or exhibiting grossly inappropriate behavior. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria.?Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017).? However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating.? The Veteran regularly denied thoughts, intent, or a plan involving self-harm at the January 2017 VA examination and in existing VA treatment records, as recently as in February 2023. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. While the Veteran did experience symptoms contemplated by a 100 percent rating-intermittent ability to perform activities of daily living and danger of hurting self-the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. The evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. ? Therefore, an initial rating of 70 percent, but no higher, for PTSD is granted from the date of service connection. Considering both the lay and medical evidence of record, the Board finds that the Veteran retains some level of social functioning as documented in the lay statements and VA examinations of record. On this record, the Board finds that the issue of unemployability due to the service-connected PTSD has not been raised as part and parcel of this claim. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Younan 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.