Citation Nr: 24005779 Decision Date: 02/03/24 Archive Date: 02/03/24 DOCKET NO. 11-01 710 DATE: February 3, 2024 ORDER A 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted for the period prior to January 5, 2015, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Prior to January 5, 2015, the severity, frequency, and duration of the Veteran's symptoms more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Prior to January 5, 2015, the criteria for a disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 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 September 1990 to May 1995. In May 2017 and June 2023, he testified at hearings before the undersigned Veterans Law Judge (VLJ). Transcripts of both proceedings are in the record. In April 2019, the Board denied the above-noted increased rating claim. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Order, the Court vacated this issue and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). The claim was most recently before the Board in July 2022 and remanded for further development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Evaluation for posttraumatic stress disorder greater than 30 percent disabling for the period prior to January 5, 2015. The Veteran contends that he is entitled to an initial disability rating in excess of 30 percent prior to January 5, 2015, for his service-connected PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). 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 Board concludes that, for the period on appeal prior to January 5, 2015, the impairment caused by the Veteran's service-connected PTSD more closely approximated the level of impairment associated with a 70 percent rating. At no point during the appeal did the Veteran's symptoms cause the level of impairment contemplated for a disability rating of 100 percent. As noted in the March 2020 Joint Motion, the issue before the Board is limited to a rating in excess of 30 percent prior to January 5, 2015. The Veteran VA treatment records from October 2007 through 2015 include multiple VA psychological assessments and progress notes. The Veteran symptoms throughout this time regularly included depression, anxiety, short-term memory impairment, irritability and anger, sleep impairment, and hypervigilance. While the Veteran regularly denied suicidal/homicidal ideations and violent thoughts, in October 2007 he did indicate that he had attempted suicide by hanging four years prior. The Veteran testified before the undersigned during a June 2023 Board hearing that, but for his brother employing him, his PTSD would have made it difficult to hold a job in the years prior to January 2015. The Veteran also indicated that he had past feelings and thoughts of suicide that preceded January 2015. In August 2023, the Veteran's representative requested information on the qualifications of VA examiners who conducted two examinations in January 2015 and another in June 2020. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The Board has not considered those examinations in this decision and remand for development in accordance with Francway is not warranted. The Veteran's representative submitted the report of a November 2023 assessment of the severity of the Veteran's PTSD prior to January 2015 conducted by a private clinical psychologist (Dr. RW). Dr. RW noted their assessment was based on an interview of the Veteran, review of the evidentiary record, and references to specific medical and clinical literature. Dr. RW specifically focused on statements from the Veteran that he had minimized his thoughts of self-harm in the years prior to January 2015. Dr. RW concluded that based on his assessment of the Veteran, review of the evidence, and the "clinical reality" the Veteran concealed the severity of his PTSD symptoms, specifically persistent thoughts of self-harm. Further, Dr. RW noted that the Veteran has consistently acknowledged periodic suicidal plans and isolated attempts prior to the period on appeal but based on the Veteran's clarification, ceased to report these feelings when he began treatment due to guilt and shame. This behavior was found to be "consistent with clinical principles" by Dr. RW. Therefore, DR. RW opined that the Veteran's PTSD met the criteria for "no less than [] 70 percent" for the period on appeal prior to June 5, 2015. The Board finds that the level of impairment caused by the Veteran's symptoms more closely approximate the criteria associated with the 70 percent rating level for the period on appeal prior to January 5, 2015. As noted, the Veteran most likely experienced suicidal ideations as contemplated by the 70 percent rating and the evidence overall demonstrates the level of impairment associated with this level of rating, but no higher. The Veteran's treatment records for the period on appeal note prior suicidal thoughts and an attempt but do not indicate that the Veteran continued to report these symptoms. However, the private opinion of Dr. RW clearly indicates that the Veteran's failure to report ongoing suicidal feelings/ideation was clinically consistent with his PTSD and that the Veteran did continue to experience these feelings. Additionally, the Veteran's testimony that he only had a job by virtue of the fact that his brother was his employer is more consistent with symptoms of 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. The Board has considered whether the evidence warrants a 100 percent disability rating under the PTSD criteria. The Board acknowledges that the opinion of Dr. RW indicated that the Veteran's PTSD symptoms warranted "up to 100 percent" disability rating but finds this opinion did not contain any evidence to support 100 percent rating and that the statement itself is not dispositive. Records detailed by Dr. RW for the period prior to January 2015 do not show gross impairment of thought processes, persistent delusions of hallucinations, grossly inappropriate behavior or disorientation to time or place. Dr. RW thoroughly discussed the Veteran's suicidal ideation and why he likely minimized those thoughts. The Board has considered the frequency, severity and duration of those symptoms and concluded that they result in the level of impairment that more close approximates the criteria for a 70 percent rating, considered representative of occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. The Board concludes that the severity of the PTSD prior to January 5, 2015, more nearly approximates the criteria for an initial 70 percent rating, but no higher. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board McLeod, Patrick 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.