Citation Nr: 23048158 Decision Date: 08/31/23 Archive Date: 08/31/23 DOCKET NO. 20-23 044 DATE: August 31, 2023 ORDER Entitlement to a 100 percent rating effective November 12, 2019, for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The record evidence shows that, prior to November 12, 2019, the Veteran's service-connected PTSD is manifested by, at worst, occupational and social impairment with deficiencies in most areas due to complaints of anhedonia, depression, feeling tired, difficulty sleeping, irritability, and occasional passive suicidal ideation. 2. The record evidence shows that, effective November 12, 2019, the Veteran's service-connected PTSD is manifested by total occupational and social impairment due to panic attacks more than once a week, suicidal ideation, impaired impulse control, persistent delusions or hallucinations and disorientation to time or place. CONCLUSION OF LAW The criteria for a 100 percent rating effective November 12, 2019, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2023). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active U.S. Army service from July 1986 to February 2002. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appointed his current attorney to represent him before VA by filing a completed VA Form 21-22a at the RO in May 2020. In a February 2022 rating decision issued under the Appeals Modernization Act (AMA), the RO assigned a higher 100 percent rating effective January 26, 2021, for the Veteran's service-connected PTSD. Having reviewed the record evidence, the Board finds that the issue on appeal should be characterized as stated above. The Veteran's attorney continues to submit multiple duplicate copies of VA and private outpatient treatment records in support of this appeal. She is advised to stop doing this because it only delays appellate review. Because the Veteran currently lives in Georgia, the RO in Atlanta, Georgia, has jurisdiction in this appeal. This appeal is advanced on the Board's docket pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900(c). The Board is persuaded that the evidence supports assigning a 100 percent rating effective November 12, 2019, for the Veteran's service-connected PTSD. He essentially contends that his service-connected PTSD is more disabling than currently evaluated. The Board agrees. The record evidence supports the Veteran's assertions. It shows that, effective November 12, 2019, the service-connected PTSD is manifested by total occupational and social impairment due to panic attacks more than once a week, suicidal ideation, impaired impulse control, persistent delusions or hallucinations and disorientation to time or place. These findings on inpatient treatment and VA examinations conducted since November 12, 2019, support the assignment of a higher 100 percent rating effective on this date for the Veteran's service-connected PTSD under DC 9411. See 38 C.F.R. § 4.130, DC 9411 (2023). The record evidence also shows that, prior to November 12, 2019, the service-connected PTSD is manifested by, at worst, complaints of anhedonia, depression, feeling tired, difficulty sleeping, irritability, and occasional passive suicidal ideation. These consistent findings on VA outpatient treatment visits conducted prior to November 11, 2019, support the current 70 percent rating assigned for the Veteran's service-connected PTSD under DC 9411. Id. For example, on VA outpatient treatment in June 2017, the Veteran stated that he had been taking Zoloft 100 mg and Ambien 10 mg "at night for the past 6 years and he actually reports that this combination aids his sleep, [and] decreases his nightmares, hyperarousal symptoms, and avoidance." A history of a prior suicide attempt by overdosing on pills in 2010 was noted. He had been married for 31 years. He had 3 adult children. He and his wife were in the process of adopting their 2 grandchildren after the grandchildren's mother was murdered. He was in school and 1 semester away from getting a bachelor's degree in business. Mental status examination of the Veteran showed he was "unneatly dressed," organized and spontaneous speech, no auditory or visual hallucinations, no suicidal or homicidal ideation, intact cognition, and good judgment and insight. He "still does complain of periods of anhedonia, tiredness, and irritability" even on medication. The Veteran's Global Assessment of Functioning (GAF) score was 75, indicating that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors and no more than slight impairment in social, occupational, or school functioning. The Axis I diagnosis was chronic PTSD. In February 2019, it was noted that the Veteran returned for outpatient treatment after a year of not showing up for 6 follow-up appointments. There was no specific psychiatric complaints. He stated that he was irritable due to constant back and neck pain with difficulty sleeping and occasional passive suicidal ideation with no active plan. He reported only sleeping 2 3 hours per night. Mental status examination of the Veteran showed he was appropriately dressed, speech within normal limits, and intact cognition. The assessment was chronic PTSD. On private psychological evaluation in May 2019 by L. H. L., M.S., included in the Veteran's Social Security Administration records, the Veteran reported that he had been married for 33 years and had 3 adult children. He lived with his wife. He did not sleep well overnight and woke up once every hour. He performed his activities of daily living with assistance from his daughter who also assisted with his finances. A prior history of inpatient psychiatric hospitalization was noted. Mental status examination of the Veteran showed he was casually dressed, full orientation, low volume but logical speech, no evidence of psychosis, no current suicidal or homicidal ideation, reported problems with anger, significant depression, nightmares, and flashbacks. The private clinician stated that she had access to "limited" medical records. The diagnoses included PTSD (by history). Contrary to the Veteran's lay assertions, the record evidence shows that, prior to November 12, 2019, her service-connected PTSD is manifested by, at worst, occupational and social impairment with deficiencies in most areas due to complaints of anhedonia, depression, feeling tired, difficulty sleeping, irritability, and occasional passive suicidal ideation. These consistent findings on VA and private outpatient treatment visits conducted during this time period support the 70 percent rating currently assigned prior to November 12, 2019, for the Veteran's service-connected PTSD under DC 9411. Id. He has been married throughout the appeal period to his wife and lived with her and 2 grandchildren whom they adopted. He reported on VA outpatient treatment in June 2017 that taking Zoloft and Ambien "aids his sleep, [and] decreases his nightmares, hyperarousal symptoms, and avoidance." He "still does complain of periods of anhedonia, tiredness, and irritability" even on medication. Mental status examination of the Veteran was within normal limits. The Veteran's GAF score of 75 reflected the presence of transient symptoms and was consistent with the findings on mental status examination. On subsequent VA outpatient treatment in February 2019, the Veteran reported he was irritable due to constant back and neck pain with difficulty sleeping, sleeping only 2 3 hours per night, and occasional passive suicidal ideation with no active plan. Mental status examination was within normal limits. He subsequently reported in May 2019 that his daughter assisted him with his finances and activities of daily living. Mental status examination again was within normal limits. Taken together, the record evidence dated prior to November 12, 2019, supports the 70 percent rating currently assigned prior to this date for the Veteran's service-connected PTSD under DC 9411. Id. There also is no indication that the Veteran experienced symptoms of similar frequency, severity, and duration as is required for a disability rating greater than 70 percent prior to November 12, 2019, under DC 9411. Id.; see also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The private clinician who examined the Veteran in May 2019 specifically found that he had full orientation, no evidence of psychosis, and no current suicidal or homicidal ideation. The Veteran and his attorney also have not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 70 percent prior to November 12, 2019, for his service-connected PTSD. In summary, the Board finds that the criteria for a disability rating greater than 70 percent prior to November 12, 2019, for PTSD have not been met. In contrast, the record evidence supports assigning a 100 percent rating effective November 12, 2019, for the Veteran's service-connected PTSD. See 38 C.F.R. § 4.130, DC 9411 (2023). Consistent with his lay assertions, it shows that he was hospitalized on that date at a VA Medical Center (VAMC) following a reported suicide attempt. It also shows that, during and after his VAMC inpatient psychiatric hospitalization, the service-connected PTSD is manifested by total occupational and social impairment due to panic attacks more than once a week, suicidal ideation, impaired impulse control, persistent delusions or hallucinations and disorientation to time or place. These findings support assigning a 100 percent rating effective November 12, 2019, for the service-connected PTSD under DC 9411. Id. The record evidence shows that on VA outpatient treatment on November 12, 2019, the Veteran reported that his PTSD medications "are not working." The VA clinician stated: [The Veteran] feels depressed all the time, he has no libido which is very important to him and he has no energy or motivation to do anything due to fatigue. He crashed his car two weeks ago in a suicide attempt, his wife was the passenger[,] and they were both unhurt. They did not tell the police that [it] was a suicide attempt so he was not hospitalized. Since getting home though, he remains depressed, severe, he has [suicidal ideation] daily, he thinks about suicide plans daily, he does not have intent today but he states these impulses just come on him anytime. The Veteran's GAF score was 35, indicating some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. The Axis I diagnoses included chronic PTSD. The VA clinician stated that the Veteran would be referred to a local VAMC for an acute inpatient psychiatric admission. On admission to the VAMC emergency room (ER) on November 12, 2019, the Veteran's complaints included feeling depressed and daily suicidal ideation. The ER clinician stated that the Veteran had been referred for admission from outpatient psychiatry "for evaluation of suicidal attempt" when he crashed his car 2 weeks earlier but did not tell police it was a suicide attempt so was not hospitalized at that time. The VA psychiatrist who evaluated the Veteran on his admission to the VAMC ER stated that the Veteran reported "feeling more depressed for months and has experienced intermittent [suicidal ideation]." The Veteran also "states that the impulse to kill himself came on so suddenly that he didn't think about it at all before crashing the car" 2 weeks earlier. He attributed his depression to chronic pain, poor sexual function, and financial problems. He endorsed symptoms of a depressed mood, poor sleep, feelings of hopelessness and worthlessness, and current suicidal ideation "that comes and goes." He denied any plan to commit suicide. A history of homicidal ideation was noted. He also endorsed chronic auditory and visual hallucinations "although [he] is hesitant to elaborate on the nature of the hallucinations. [He] states that he hears voices, and when asked about [visual hallucinations]...states that he often 'see[s] something horrifying' but does not elaborate." Mental status examination of the Veteran on November 12, 2019, showed he was awake, alert, oriented, well groomed, good eye contact, regular speech, good attention/concentration, linear, logical, and goal-directed thought process and content, no looseness of associations, reported chronic auditory and visual hallucinations, no delusions, current suicidal ideation, reported "homicidal ideation when VA healthcare workers did not give him his pain medication," no abnormal perceptions, no obsessions/compulsions, fair insight, poor judgment, and poor impulse control. The diagnoses included PTSD. The VA psychiatrist recommended an inpatient admission. VA suicide risk evaluation on November 12, 2019, indicated that the Veteran currently was suicidal. He stated that he constantly had suicidal ideation and reported a recent suicide attempt 2 weeks earlier. He did not have suicidal intent or a suicide plan. The VA clinician concluded that the Veteran was at high acute risk of suicide and had high chronic risk of suicide. On VA inpatient psychiatric treatment on November 13, 2019, the Veteran stated that he had been "dealing with...various stressors for the past few month, including stress [with] housing, financial strain, dealing [with] medical issues as well as issues [with] his wife and family [and] taking care of his grandchildren." He also stated that "dealing [with] chronic pain has been especially taxing, finding it hard to function [sic], making him feel worthless." He reported experiencing depression, anhedonia, feelings of guilt/worthlessness/hopelessness, low energy, changes in weight/appetite, and poor sleep. He also reported "having chronic, intermittent though impulsive thoughts of not being alive." He did not endorse signs or symptoms of mania. He endorsed "being on edge, worried, tense, namely when in more pain or thinking about all the things going on in his life." He experienced nightmares and flashbacks to service. He denied any auditory or visual hallucinations or paranoia. He was married and taking care of his 2 adopted grandchildren. He currently was homeless although he had been staying at his mother-in-law's home with his wife and adopted grandchildren. Mental status examination of the Veteran on November 13, 2019, showed he was awake, alert, in no acute distress, fair grooming and hygiene, some "eye deviation," speech within normal limits, "some tension and dysphoria," no current suicidal or homicidal ideation, no current auditory or visual hallucinations, linear and logical "though at times rambling [and] overly detailed" thought process, and fair to limited insight and judgment. The assessment included chronic PTSD. The Veteran was placed on 3 new medications. A VA Discharge Summary dated on November 19, 2019, and included in the Veteran's VA outpatient treatment records shows that the Veteran's inpatient hospitalization beginning on November 12, 2019, lasted for 7 days. "Over the course of the hospitalization, the [Veteran's] condition improved as well as his insight into his psychiatric illness." On the day of his discharge, the Veteran reported that he was feeling safe and denied any auditory or visual hallucinations. Mental status examination of the Veteran at discharge showed he was awake, alert, in no acute distress, fair grooming and hygiene, some "eye deviation," good eye contact, speech within normal limits, no current suicidal or homicidal ideation, no current auditory or visual hallucinations, linear and logical thought processes, and fair to limited insight and judgment. His admission and discharge diagnoses included chronic PTSD. On VA PTSD Disability Benefits Questionnaire (DBQ) on November 22, 2019, it was noted that the Veteran had been hospitalized most recently 1 week earlier for treatment of PTSD and suicidality. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. This examiner stated that the Veteran "still has thoughts of not wanting to live, but denies suicidal or homicidal plans/intentions and expressed awareness of the VA crisis hotline, if needed." The Veteran was on 3 different prescription medications to treat his PTSD. He also had "weekly or more auditory hallucinations, which contribute to his PTSD/suicidality." His symptoms were a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, 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 work like setting, suicidal ideation, persistent delusions or hallucinations, and disorientation to time or place. He also had poor eye contact. Additional PTSD symptoms were "nightmares/poor sleep, exaggerated startle, hypervigilance/social withdrawal, heightened anxiety states, intrusive memories, irritability, flashbacks/disorientation, disrupted focus, and arousal to/avoidance of cues/triggers." The VA examiner stated that the Veteran's PTSD "subsumes" any past diagnosis of depressive disorder. This examiner concluded that the Veteran "should be considered an INCREASED but not current imminent risk." (Emphasis in original). This examiner also concluded that the Veteran's service-connected PTSD had worsened and resulted in total occupational and social impairment. The diagnosis was PTSD. On VA PTSD DBQ on December 23, 2019, the Veteran's complaints included "hearing voices." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran's recent VA psychiatric hospitalization was noted. His PTSD symptoms were a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, 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 work like setting, and impaired impulse control. Mental status examination of the Veteran on December 23, 2019, showed adequate grooming and hygiene, full orientation, poor eye contact, no current suicidal or homicidal ideation, reported intermittent suicidal ideation, normal speech, no delusions or hallucinations, relevant, logical, and coherent thought process, intact cognition and memory, and fair judgment and insight. The VA examiner stated that the Veteran "should be considered an INCREASED but not current imminent risk." (Emphasis in original). This examiner concluded that the Veteran's symptoms had worsened since 2018. This examiner also concluded, "The Veteran's depression is subsumed under PTSD. Veteran reports hearing voices, and I believe these to be part of the depersonalization, leading to a new diagnosis of PTSD, chronic, with dissociative symptoms including depersonalization." The diagnosis was chronic PTSD with dissociative symptoms including depersonalization. In a December 30, 2019 letter included in the Veteran's VA outpatient treatment records, his VA treating psychiatrist stated that she had been treating the Veteran for PTSD since February 2013. "His depression has gotten worse over time. Chronic PTSD has never improved. He continues to have nightmares, flashbacks, irritability, emotional instability, severe anxiety, [an] inability to deal or work with people[,] and recurrent suicidal ideations." On VA outpatient treatment in January 2020, he complained of occasional suicidal ideation but no plan or intent. "He usually prays, plays with his grandchildren or keep[s] busy to ward off any negative thoughts." Mental status examination of the Veteran showed full orientation, organized thought processes, no suicidal or homicidal ideation, no delusions or hallucinations, no cognitive deficits, and intact insight and judgment. The Veteran's GAF score was 45, indicating serious symptoms or any serious impairment in social, occupational, or school functioning. The Axis I diagnosis was chronic PTSD. In February 2020, the Veteran reported no reoccurrence of suicidal ideation for 30 days "though he is still depressed about his medical condition." Mental status examination, GAF score, and diagnosis were unchanged from January 2020. The VA clinician stated that the suicide flag could be discontinued for the Veteran. In a March 2020 letter included in the Veteran's VA outpatient treatment records, his treating VA psychiatrist stated: I have been treating [the Veteran] for Chronic PTSD...since February 2013. He is currently taking Zoloft 150 mg 1x daily and Zolpidem 10 mg at bedtime. He was taking Trazodone 300 mg but Ambien has always been more effective so we are making the change from Trazodone to Zolpidem this month. [The Veteran] is currently stable with the...Chronic PTSD and has convincingly denied any self-destructive thoughts. On VA mental health outpatient telehealth appointment in November 2020, the Veteran reported being diagnosed as having PTSD and "chronic pain that interferes with his day to day functioning. Veteran seemed slightly closed off and did not want to discuss specifics of his [symptoms]." He was out of his prescription medications. Mental status examination of the Veteran showed full orientation, speech within normal limits, intact remote and recent memory, intact insight and judgment, logical, linear, and goal directed thought processes, no formal thought disorder, no delusions, no auditory/visual hallucinations, and no suicidal or homicidal ideation. The diagnosis was unspecified PTSD by history. In December 2020, a history of PTSD "in context of chronic pain" was noted. He denied any current suicidal ideation. A history of suicidal ideation "intermittently" without any recent plan or intent was noted. Mental status examination of the Veteran showed regular speech, full orientation, coherent, logical, and goal-directed thought processes, no looseness of associations or flight of ideas, no suicidal or homicidal ideation, intent, or plan, fair insight, intact judgment, and no reported auditory or visual hallucinations. The diagnoses included PTSD by history. Consistent with the Veteran's lay assertions, the record evidence shows that the symptomatology attributable to his service-connected PTSD worsened on November 12, 2019, when he was admitted through the ER at a VAMC to an inpatient psychiatric ward following a recent reported suicide attempt. On admission, the Veteran reported daily suicidal ideation, chronic auditory and visual hallucinations, poor judgment, and poor impulse control. A VA clinician evaluating the Veteran's suicide risk concluded that he was at high acute risk of suicide and had high chronic risk of suicide on that date. The Veteran was hospitalized for 7 days and, although his service-connected PTSD symptoms improved during hospitalization, he continued to report ongoing problems with suicidal ideation after his hospital discharge. VA PTSD DBQ on November 22, 2019, approximately 3 days after his VAMC discharge, documented the presence of PTSD symptoms, including persistent delusions or hallucinations and disorientation to time or place, suggesting total occupational and social impairment. He also remained at increased but not imminent risk of suicide at this examination. Subsequent VA PTSD DBQ on December 23, 2019, also showed that his service-connected PTSD symptomatology had worsened. The Veteran's VA treating psychiatrist stated in a December 30, 2019, that she had been treating him for chronic PTSD since 2013 which "has never improved." This clinician subsequently stated in March 2020 that the Veteran's chronic PTSD was stable on multiple medications. Subsequent VA outpatient treatment visit in December 2020 noted the Veteran's history of suicidal ideation "intermittently" without any recent plan or intent. Taken together, the record evidence as a whole shows that, effective November 12, 2019, the Veteran's service-connected PTSD resulted in total occupational and social impairment due to panic attacks more than once a week, suicidal ideation, impaired impulse control, persistent delusions or hallucinations and disorientation to time or place. These findings on VA examinations and outpatient treatment visits support the assignment of a 100 percent rating effective November 12, 2019, for the Veteran's service-connected PTSD under DC 9411. Id. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 100 percent rating effective November 12, 2019, for PTSD have been met. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.