Citation Nr: 23027288 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 19-24 408 DATE: May 8, 2023 ORDER Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD), is granted. REMAND Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. FINDING OF FACT The Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas for the entire appeal period. CONCLUSION OF LAW The criteria for entitlement to an initial 70 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1982 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran appeared before the undersigned at a September 2022 virtual hearing; a transcript is of record. The Board has bifurcated the issue of entitlement to an increased rating for PTSD as reflected on the title page so as to afford the Veteran a favorable decision without delay while the question of entitlement to an initial rating of greater than 70 percent is remanded for further development. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an appeal is generally within the Board's discretion. 1. Entitlement to an initial 70 percent rating for posttraumatic stress disorder (PTSD), is granted. I. General Rating Principles Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.? The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes.? 38?U.S.C. §?1155; 38?C.F.R. §?4.1. A veteran's entire history is to be considered when making disability evaluations (ratings).? See generally 38?C.F.R. §?4.1.? Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.? Hart v. Mansfield, 21?Vet. App.?505 (2007). Where there is a question as to which of two evaluations (ratings) shall be applied, 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.? 38?C.F.R. §?4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.? 38?C.F.R. §?4.14.? The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.? See Esteban v. Brown, 6?Vet. App.?259, 261-62 (1994).? II. Rating Criteria Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran's acquired psychiatric disorder is rated pursuant to DC 9411. DCs 9201-9440 contemplate mental disorders, which are rated under the General Rating Formula for Mental Disorders. Under this formula, a 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation, or own name. The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, 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 (2002). III. Analysis The Veteran is currently in receipt of a 50 percent rating from November 3, 2016, the effective date of service connection for his PTSD, which is the beginning of the appeal period in this case. The Board finds that an initial rating of at least 70 percent is warranted because, as explained below, the probative evidence of record reflects that the Veteran's PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/ or mood. This is based on symptoms such a suicidal ideation, depressed mood, and isolative behavior. 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."). In this regard, the Veteran's VA treatment records document prior suicide attempts in 2002 and 2013. In 2002, the Veteran was placed in inpatient psychiatric care after his wife stopped his suicide attempt. In 2013, the Veteran again attempted suicide but was stopped when his minister took his gun from him, leading the Veteran to permanently relinquish his personally owned firearm to his brother. See, e.g., October 2018 VA Mental Health Consult. The Veteran later related suicidal ideations again, over several months in 2019. In one instance, he had a plan to asphyxiate himself with car exhaust. See, e.g., January 2019 VA Mental Health Counseling Note; July 2019 VA Treatment Note; August 2019 VA Treatment Note. Of note, in January 2019, he related that his suicidal thoughts were coincident with circumstances that reminded him of his in-service trauma. Here, the Board notes that the Veteran did not affirmatively endorse thoughts of self-harm at his September 2022 Board hearing. See, e.g., September 2022 Board Hearing Transcript (Tr.), at 9. However, the Board notes that the Veteran did not specifically deny thoughts of self-harm either; rather, he noted that he did not hear voices telling him to engage in self-harm. Further, most of the Veteran's numerous VA treatment encounters often relate no thoughts or danger of self-harm; however, the record demonstrates that the Veteran has expressed suicidality episodically over an 18 year period (2002 to 2019), with his most recent reports spanning an 8 month period in 2019 (January to August). Further, such episodes are unpredictable and occasioned by stressful events beyond the Veteran's control, such as family factors (2002), loss of a job (2013), or events which remind him of his in-service trauma (2019). Further, the Board notes that the Veteran takes prescribed medication to regulate his depressive symptoms. See, e.g., Tr., at 5. At hearing, the Veteran also related that he showers only once or twice a week, as doing so brings intrusive thoughts of his in-service trauma. Tr., at 3. The February 2018 VA examiner endorsed the presence of: intrusive memories, dreams, and flashbacks; avoidance behavior; persistent distorted cognition; disinterest in socialization; estrangement from others; hypervigilance; an exaggerated startle response; depressed mood; anxiety; suspiciousness; disturbances of motivation and mood; and difficulty adapting to stressful circumstances. The Veteran also denied having suicidal thoughts to the examiner; however, his documented treatment in 2019 occurred after the VA examination in question. When viewed holistically, the Veteran's symptoms support an award of a 70 percent rating for the entire appeal period. Although VA examiners found that the Veteran's social and occupational functioning was occasionally impaired, these findings are in conflict with other, more severe symptoms, such as suicidal ideation and difficulty with hygiene, noted in VA treatment records and the September 2022 Board Hearing transcript, and the Board affords the Veteran the benefit of the doubt in this regard. 38 C.F.R. § 4.3. As addressed below, the question of entitlement to a higher 100 percent rating is remanded for further development. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. At hearing, the Veteran credibly testified that he has difficulty showering, due to intrusive memories associated with his in-service trauma. Specifically, he related that he only showers once or twice per week. Tr., at 3. Further, he noted difficulty in cleaning himself after bathroom use. Tr., at 9-10. Here, the Board notes that the criteria for a higher 100 percent rating include "intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). See 38 C.F.R. § 4.130. In this regard, the Board notes that the February 2018 VA examiner did not endorse this symptomatology; thus, given the Veteran's assertions of potential worsening and the time since his last examination, the Veteran should be afforded an updated medical examination on remand. Further, updated VA and relevant private treatment records should be obtained. The matters are REMANDED for the following action: 1. Secure updated VA treatment records. 2. With any necessary assistance from the Veteran, obtain updated relevant private treatment records. 3. Upon completion of items #1 and #2, schedule the Veteran for a medical examination, with an examiner other than the February 2018 examiner, to determine the nature and severity of the Veteran's PTSD symptomatology since November 3, 2016. The examiner should indicate how the Veteran's PTSD symptomatology impacts his daily life. In this regard, the examiner is asked to address and discuss: (a) The Veteran's September 2022 Board Hearing Testimony that he has difficulty with personal hygiene and showers only once or twice each week and has difficulty with bathroom use; and (b) the Veteran's reports of being flooded with disturbing memories while showering (see, e.g., January 2019 VA Treatment Note). In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, Associate 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.