Citation Nr: 23040909 Decision Date: 07/26/23 Archive Date: 07/26/23 DOCKET NO. 17-01 211 DATE: July 26, 2023 ORDER Entitlement to an increased initial disability rating of 100 percent for posttraumatic stress disorder, for the period prior to January 18, 2023, is granted. The appeal concerning entitlement to service connection for left ear hearing loss has been withdrawn and is therefore dismissed. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence shows that his post-traumatic stress disorder has resulted in total occupational and social impairment for the period prior to January 18, 2023. 2. Prior to a promulgation of a decision in this appeal, in written correspondence dated November 7, 2022, the Veteran, through his representative, withdrew the issue of entitlement to service connection for left ear hearing loss. CONCLUSIONS OF LAW 1. For the entire period prior to January 18, 2023, the criteria for an evaluation of 100 percent for post-traumatic stress disorder, have been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for withdrawal of the appeal of entitlement to service connection for left ear hearing loss by the appellant's authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1963 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2020 where the Board granted a 70 percent rating, but no higher, for the service-connected PTSD for the entire initial rating period on appeal effective October 6, 2015, and denied reopening of service connection for left ear hearing loss. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Memorandum Decision, the Court set aside and remanded the March 2020 Board decision. The Court held that the Board had not provided an adequate statement of reasons and bases regarding the issues. The June 2021 Memorandum Decision also indicated that evidence of record raised the issue of a TDIU. This matter was returned to the Board in November 2022 at which time the Board remanded the matter for further evidentiary development and to adequately address the CAVC Memorandum Decision. Prior to returning the matter to the Board, the RO issued a rating decision in February 2023 which increased the Veteran's rating for his PTSD to 100 percent, effective January 18, 2023. Although the Veteran has been granted the highest schedular rating for his PTSD for a portion of the period on appeal, this is not a full grant of the Veteran's claim and the matter is still on appeal before the Board. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, based on the February 2023 rating decision, the issue has been recharacterized as entitlement to an initial disability rating in excess of 70 percent for service-connected posttraumatic stress disorder for the period prior to January 18, 2023. Also, in a May 2023 rating decision, prior to recertification to the Board, the AOJ granted the claim for entitlement to a TDIU, effective October 6, 2015, which covers the entire period on appeal. Therefore, as the issue of entitlement to a TDIU has been granted in full, that issue is no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Increased Ratings - General Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38U.S.C. §1155; 38C.F.R. §§3.321(a), 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. 38U.S.C. §5107(b); 38 C.F.R. § § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. This practice is known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Legal Standards: Acquired Psychiatric Disorder The Veteran asserts that for the period on appeal, his current service-connected PTSD is more severely disabling than the currently assigned 70 percent rating. The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. Id. 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. Use of the term "such as" in the criteria for a rating under § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign to a rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of the regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-17. "[I]n the context of a 70 [percent] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Therefore, although the Veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, determining whether the veteran is entitled to a 70 percent disability evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 118-19. Thus, 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). 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. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. 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. Id. Evidence and Analysis Turning to the evidence of record, VA treatment records dated in 2015 document reports of, and treatment for the Veteran's psychiatric symptoms. The Veteran reported in August 2015 that he suffered from intrusive thoughts and memories at least once a day and experienced nightmares "on twenty nights" during the previous month. See August 2015 Mental Health Treatment Plan Note. The Veteran also reported that he experienced one flashback. He stated he becomes intensely emotionally upset when reminded about traumatic events. He also noted he sometimes had intense physical reactions such as racing heart, sweatiness, and at times, shortness of breath, both as part of and separate from a panic attack, when reminded of his in-service trauma. The Veteran reported experiencing daily irritability and having angry outbursts "a couple of times a week." In September 2015, the Veteran reported more symptoms that included recurrent nightmares, intrusive memories, irritability, difficulty concentrating, significant impairment in social life and interpersonal functioning, and mild to moderate depressive symptoms. He reported feeling detached from people and an inability to experience positive emotions, such as happiness and love. The Veteran did not report thoughts of suicide or self-harm. See September 2015 VA MHC Interview. A November 2015 treatment record reflects his wife's observation of noted improvement in the Veteran's overall hypervigilance and anxiety due to his use of medication; she further stated that the Veteran was able to stay at church longer without sweating. Clinical examinations during this time period did not reveal impairments in the Veteran's appearance, hygiene, motor behavior, speech, or thought processes. The Veteran underwent an initial VA examination for PTSD in January 2016. The examiner found the Veteran's psychiatric symptoms caused 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. See January 2016 VA Initial PTSD Disability Benefits Questionnaire (DBQ). The Veteran identified his wife as his main source of social support, reported that he attended church, and indicated he had regular contact with his family and fellow church members. The Veteran did not report experiencing suicidal ideation or homicidal ideation. The clinical examination revealed symptoms including nightmares once per week, hypervigilance, sleep disturbances, and avoidance behaviors. The examiner noted that the Veteran's symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner found the Veteran's symptoms to be mild and have a mild social impact. VA treatment records dated from 2016 to April 2017 document the Veteran's additional psychiatric treatment. He reported having improved symptoms with the use of medication in April 2016 and endorsed continued avoidance symptoms and hypervigilance. In December 2016, the Veteran reported improvement with his panic attacks, nightmares, and mood, but indicated he still avoided social situations. The mental status examinations for this time period are negative impairments in mood, speech, thought processes, or appearance. The record includes an Initial PTSD DBQ reflecting the findings from a private examination. See Initial PTSD DBQ received May 2017. Although the DBQ reflects an April 2015 signature date, the private examiner's written signature indicates it was completed on April 15, 2017, which is consistent with the May 2017 date upon which the Veteran submitted this evidence. Thus, the Board determines that the private DBQ was completed in April 2017. On the private examination, the examiner found the Veteran suffered from total occupational and social impairment. The examiner explained that her conclusion was based on the record and the Veteran's reports of experiencing symptoms, including depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impairment in short- and long-term memory; memory loss for names of close relatives, own occupation, or own name; flattened affect; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work and a work-like setting; inability to establish and maintain effective relationships; suicidal ideation; obsessive rituals which interfere with routine activities; impaired impulse control; neglect of personal appearance and hygiene; and disorientation to time or place. The Veteran again underwent a VA examination for PTSD in May 2017. He indicated that his irritability, viewpoints, dislike of crowds, and suspiciousness cause problems in his relationship with his wife. He stated that he frequently thinks "people are looking or commenting on his appearance." The Veteran reported that he quit his job as an Uber driver because of low pay, it was too difficult dealing with people, and he disliked driving in busy parts of the city. The Veteran described breaking into sweats and experienced high anxiety in more crowded situations, which happened routinely at church. See May 2017 VA Review PTSD DBQ. The examiner found the Veteran suffered from PTSD symptoms including depressed mood, anxiety, suspiciousness, and chronic sleep impairment. As noted by the examiner, the Veteran reported subjective memory difficulties, although his memory appeared intact for purposes of the assessment. The examiner determined there was no sign of cognitive limitations and found the Veteran's concentration and attention to be intact. The examiner found the Veteran's psychiatric symptoms caused "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." In November 2022 a private psychological report was added to the claims file. The examiner reviewed the claims file and interviewed the Veteran. The examiner described the Veteran as cooperative and engaged throughout the interview, with an organized speech and thought process. While the Veteran reported that his nightmares had decreased since starting medication, his physical reactions to triggers remained. He endorsed symptoms of intrusive thoughts as well as flashbacks with intense physical reactions like sweating. He would force himself to go to church to appease his wife but would otherwise avoid crowds. He rarely went to restaurants, and when he did, he would sit with his back against the wall. The Veteran reported that he would not "get suicidal" anymore but felt as though death was "still the best way out". He described dealing with his symptoms as "hell on Earth." The Veteran reported that he worried about his reactions at times, noting that he had arguments where if he had a gun on him, he would have killed someone. The Veteran would "patrol" his house at night, checking doors and setting the alarm. The Veteran reported struggling to get his degrees due to difficulty getting along with others, and this limited his job options. When he was working, he would often miss work because he couldn't leave the house. The examiner also opined that the January 2016 VA opinion was a significant underestimate of the Veteran's mental health condition, as it has been noted in records that the Veteran tends to minimize his symptoms. The examiner noted that the Veteran's symptoms of "profound social isolation irritability, and poor impulse control have barred him from maintaining gainful employment and healthy interpersonal relationships since at least 2011" and have rendered him totally disabled since he left full time work. Consistent with the CAVC Memorandum Decision, a March 2023 VA addendum opinion was obtained. The examiner was asked to review and discuss the evidence of total and occupational impairment in the claims file, for the period on appeal. The March 2023 examiner indicated that after a review of the Veteran's claims file, the "predominance of the medical record" documented symptoms of depressed mood, anxiety, suspiciousness, re-experiencing symptoms which occurred more than once a week, disassociation, chronic sleep impairment, difficulty concentrating, mild memory loss, impairment of short and long term memory, difficulty adapting to stressful circumstances, irritability with verbal aggression, hypervigilance, flattened affect and being easily startled. The examiner noted that while other symptoms were documented, a search of VA medical records did not support the presence of cognitive deficits, impaired judgment or obsessional rituals, and therefore it was less likely than not that these were clinically significant symptoms in his case. The examiner further concluded that there was no evidence of symptoms that are associated with total occupational and social impairment rating criteria. 1. Entitlement to an increased initial disability rating of 100 percent for posttraumatic stress disorder, for the period prior to January 18, 2023. For the period prior to January 18, 2023, the Board finds that the weight of the evidence demonstrates that a rating of 100 percent is warranted. The Board notes the record of severity of the Veteran's PTSD most closely approximates the criteria for a 100 percent disability evaluation for the period prior to January 18, 2023. On review, the Board finds that the Veteran's psychiatric symptoms as evidenced during the appeal period included depressed mood, significant anxiety and social isolation, suspiciousness, re-experiencing symptoms which occurred more than once a week, disassociation, chronic sleep impairment, difficulty concentrating, mild memory loss, impairment of short and long term memory, difficulty adapting to stressful circumstances, irritability with verbal aggression, hypervigilance, flattened affect, being easily startled, obsessive rituals such as the need to constantly check the perimeter of his home and thoughts and passive suicidal and homicidal comments, more nearly approximate total occupational and social impairment. As noted during the November 2022 examination, the examiner opined that the Veteran's symptoms of "profound social isolation and irritability, and poor impulse control have barred him from maintaining gainful employment and healthy interpersonal relationships since at least 2011" and rendered him "totally disabled" since that time. The Board notes the guidance of Bankhead v. Shulkin, to conduct a three- part "holistic" analysis, to include an assessment of the severity, frequency, and duration of the signs and symptoms, to quantify the level of occupational and social impairment caused by the signs and symptoms, and to assign an evaluation that most closely approximates that level of occupational and social impairment. 29 Vet. App. 10, 22 (2017). Here, the Board notes the symptomatic presentation of the Veteran in combination with the qualitive remarks of the November 2022 examiner, and finds that the Veteran's PTSD most closely approximates that of total occupational and social impairment for the period prior to January 18, 2023. See also Mauerhan v. Principi, 16 Vet. App. 436 (2002) (holding that the list of symptoms in the disability rating schedule for psychiatric disabilities is not exhaustive); and see Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013) (holding that the disability rating schedule for psychiatric disabilities reflects "objectively-observable symptomatology," and "it is the severity of the effects of the symptoms as described by the examiner that determines the rating."). The Board acknowledges that the results of the VA examinations, mental health treatment records, and the lay statements of record do not indicate that the Veteran has experienced all of the symptoms associated with the 100 percent rating for his PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment sufficient to warrant a 100 percent rating thereafter, even though all the specific symptoms listed for that rating are not manifested. Accordingly, the Board finds that the severity, frequency, and duration of PTSD symptoms more nearly approximates a total level of occupational and social impairment, and therefore a rating of 100 percent for the service-connected PTSD under Diagnostic Code 9411 is warranted for the period prior to January 18, 2023. Bankhead, 29 Vet. App. at 22; Mauerhan, 16 Vet. App. at 442; Vasquez-Claudio, 713 F.3d at 11617. Therefore, for the reasons stated above, the Board finds that a rating of 100 percent is warranted from for the period prior to January 18, 2023. See 38 C.F.R. § 4.130, Diagnostic Code 9434; Hart, 21 Vet. App. 505. See also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In reaching this conclusion, the Board has again considered the applicability of the benefit of the doubt doctrine in the assignment of the rating for the period on appeal. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for left ear hearing loss. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In November 7, 2022 correspondence, the Veteran, through his representative, indicated in writing that the Veteran wished to withdraw his appeal for left ear hearing loss. As the Veteran has asserted that he wants to withdraw this issue on appeal, under 38 U.S.C. § 7105, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Ardie A. Bland Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.