Citation Nr: 23053167 Decision Date: 09/25/23 Archive Date: 09/25/23 DOCKET NO. 17-01 811 DATE: September 25, 2023 ORDER Entitlement to an initial rating of 100 percent for posttraumatic stress disorder (PTSD) and bipolar 2 disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran's PTSD and bipolar 2 disorder were manifest by psychiatric symptomatology resulting in total occupational and social impairment for the entire appeal period. CONCLUSION OF LAW The criteria for an initial rating of 100 percent for PTSD and bipolar 2 disorder have been met. 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, 9432. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States (US) Marine Corps from June 2005 to June 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ), which granted service connection for the Veteran's PTSD with adjustment disorder with anxiety, depressed mood, and alcohol use disorder at a 30 percent rating effective June 17, 2016, one day after the Veteran's separation from service. This matter has an extensive procedural history as it was previously before the Board in August 2017, June 2018, May 2020, December 2020, and December 2022. The Board initially denied a rating in excess of 30 percent in August 2017. A few months later, in a December 2017 rating decision, the AOJ granted a 50 percent rating, effective September 19, 2016. Nevertheless, on appeal from the August 2017 Board decision, in February 2018 the US Court of Appeals for Veterans Claims (Court) granted the Parties' Joint Motion for Partial Remand (Joint Motion), which vacated that portion of the August 2017 Board decision that denied a rating in excess of 30 percent and remanded the issue to the Board for action consistent with the Joint Motion. In June 2018, the Board denied a rating in excess of 50 percent, and on appeal the Court in a September 2019 Memorandum Decision vacated that portion of the June 2018 Board decision that denied a rating in excess of 50 percent for PTSD and remanded the issue to the Board. In a May 2020 decision, the Board remanded the matter for issuance of a Supplemental Statement of the Case (SSOC). Subsequently, in December 2020 decision, the Board granted a 70 percent rating for the entire period. On appeal, the Court in a July 2022 Memorandum Decision set aside the Board's December 2020 decision which denied a rating in excess of 70 percent and remanded the matter to the Board. In its most recent decision, the Board in December 2022 again denied a rating for PTSD in excess of 70 percent. The Veteran appealed and in June 2023 the Court granted the Parties' Joint Motion for Remand (Joint Motion), which vacated that portion of the December 2022 Board decision that denied a rating in excess of 70 percent for PTSD and remanded the issue to the Board for action consistent with the Joint Motion. The matter now returns to the Board. At the outset the Board notes that it has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 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 the context 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. Although the Veteran's has multiple diagnoses during the appeal period, the Veteran's service-connected psychiatric disability is currently rated under hyphenated diagnostic code (DC) 9432-9411. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. Here, DC 9432 refers to bipolar disorder and DC 9411 refers to PTSD; both disabilities are evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. In pertinent part, the General Rating Formula provides that 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); and 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). For the reasons that follow, the Board finds that an initial rating of 100 percent for PTSD and bipolar 2 disorder is warranted for the entire period on appeal. The Veteran was initially afforded a VA examination in April 2016, two months prior to his separation. The June 2016 VA examiner found the Veteran's symptoms included avoidance, guilt, hypervigilance, social withdrawal, intrusive thoughts, and irritability, and that the Veteran exhibited a strong lack of motivation to stop drinking or seek employment. The VA examiner noted that the Veteran's mother came to stay with him after the Veteran had suicidal thoughts in 2014; that the Veteran had thoughts of killing his ex-wife in 2013; and that the Veteran had recent thoughts of killing his roommate/girlfriend, who would drag the Veteran out of the house once a week, which indicated that the Veteran did not go out of the house unless forced to. In addition to the Veteran's social impairments, which at the time included a history of passive suicidal ideation and homicidal ideation, the April 2016 VA examiner noted the Veteran's occupational impairments, including that the Veteran had left the job that he held for two months for a new job at the post office, but never showed up to the new job. Notwithstanding the foregoing, the VA examiner nevertheless assessed the Veteran with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, corresponding to a 30 percent rating under the General Rating Formula. For the Veteran's remaining pertinent VA examinations of September 2017, September 2020, December 2020, and January 2022, the same pattern as above recurred, with these subsequent VA examiners assessing the Veteran's psychiatric disability as corresponding to a lower rating than that shown after a review of the totality of the evidence of record. Specifically, the September 2017, September 2020, and December 2020 VA examiners respectively found that the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity, which corresponds to a 50 percent rating; while the January 2022 VA examiner found that the Veteran's psychiatric disability resulted in occupational and social impairment, with deficiencies in most areas, which corresponds to a 70 percent rating. See Compensation and Pension (C&P) Examinations, Receipt Dates: October 2, 2017; October 9, 2020; December 30, 2020, and February 3, 2022. However, and notwithstanding the foregoing assessments made by VA examiners at the time of examination, the Board's holistic analysis of the Veteran's symptoms, to include: recurring and systematic thoughts of suicide but when asked denying intent; one-sided social relationships where the Veteran is forced by others to engage in social activity; fear of being in public and feelings of worthlessness; chronic sleep impairment including somniloquy and intrusive dreams; lying to mental health providers; lying about being okay; persistent abuse of alcohol; apathy related to both social relationships and work; and loss of work due to inability to be around others, when weighed against the rating criteria and assessed in frequency and severity for the duration of the appeal, support the Board's finding that the Veteran's psychiatric disability resulted in total occupational and social impairment during the entire period on appeal. To this point, the Board notes that in addition to the foregoing symptoms, the Veteran vacillated between hopelessness and help seeking behavior and was in persistent danger of hurting himself and/or others as evidenced by: (1) suicide attempts requiring hospitalization or intervention by law enforcement and/or mental health professionals or significant others including as documented in October 2016 and September 2019; and (2) violence toward others sometimes requiring hospitalization or intervention by law enforcement and/or mental health professionals including as documented in December 2016, and as reported by the Veteran. See Compensation and Pension Record Interchange (CAPRI), November 9, 2016 Primary Care Case Manager Note, Receipt Date: November 8, 2017; Medical Treatment Record, October 31, 2019 Psychiatry Treatment Plan Note, Receipt Date: February 13, 2020; Correspondence, Receipt Date: March 1, 2021; VA Form 9, Receipt Date: January 6, 2017. The record on appeal also indicates that although the Veteran was most recently assessed as low risk for suicide, his VA treatment records indicate that such assessments can change at any time and are based on self-reported answers to direct questions regarding a suicidal plan as opposed to a suicide method. See CAPRI, June 9, 2023 Psychiatry Triage Note, Receipt Date: August 16, 2023. Moreover, the Veteran has been assessed as high risk for suicide during the appeal. See, e.g., CAPRI, December 17, 2019 Mental Health Note, Receipt Date: November 12, 2020. Finally, the Veteran's VA treatment records show that he struggles with scheduling and attending his psychiatric appointments and with regularly taking medications and eating three meals daily, indicating an intermittent inability to perform activities of daily living. See CAPRI, May 7, 2020 Psychiatry Note and January 4, 2021 Seamless Transition Progress Note, Receipt Date: August 16, 2023 (chronologically first of series); C&P Examination, Receipt Date: October 2, 2017; C&P Examination, Receipt Date: October 9, 2020; CAPRI, December 8, 2016 Primary Care/Mental Health Follow-up Note, Receipt Date: August 29, 2017. The Board notes that although the June 2023 Joint Motion included instructions that the Board remand this matter for issuance of a SSOC, there is no prejudice to the Veteran and no such SSOC is needed, since the Board's decision herein is a complete grant of the benefits sought on appeal. Therefore, and when taken together, the severity, frequency, and duration of the Veteran's symptoms as outlined above, including the persistent danger of hurting himself or others and his intermittent inability to perform activities of daily living, are indicative of his total occupational and social impairment. Consequently, the Board finds that the evidence of record, including the Veteran's lay statements and the corroborative contemporaneous VA treatment records, overwhelmingly establish that an initial 100 percent rating for the Veteran's PTSD and bipolar 2 disorder is warranted. 38 U.S.C. § 5107. The appeal is thus granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Akkerman, Shayna R. 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.