Citation Nr: 24006103 Decision Date: 02/03/24 Archive Date: 02/03/24 DOCKET NO. 20-27 228 DATE: February 3, 2024 ORDER Entitlement to an initial increased rating of 70 percent, but no higher, from July 25, 2017, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT 1. Since the July 25, 2017 effective date of the grant of service connection, the Veteran's PTSD is manifested by symptoms that more nearly approximated occupational and social impairment with deficiencies in most areas; however, his symptoms do not result in total occupational and social impairment. CONCLUSION OF LAW Since July 25, 2017, the criteria for an initial 70 percent rating, but no higher, for service-connected PTSD are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 2007 to July 2017. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2017 rating decision, the RO granted service connection for other specified trauma and stressor related disorder and assigned an initial noncompensable, 0 percent rating, effective July 25, 2017. In December 2017, the Veteran requested reconsideration of his initial claim, noting that his diagnosis had changed to PTSD. In January 2018, a VA examination was afforded the Veteran and was associated with the claims file along with pertinent VA treatment records. 38 C.F.R. §§ 3.156 (b). In a January 2018 rating decision, the RO granted a higher 10 percent rating, effective December 1, 2017. Then, in an April 2020 rating decision the RO granted an initial 30 percent rating, effective from the July 25, 2017 date of service connection. In a March 2022 rating decision, the RO recharacterized the psychiatric disability as PTSD, and granted an increased rating of 70 percent, effective March 7, 2022. However, as higher ratings are available during each of these periods, these increases do not constitute a full grant of the benefits sought, thus the issue remains on appeal before the Board. Ab v. Brown, 6 Vet. App. 35 (1993). In December 2018, the Veteran attempted to opt-in to the Appeals Modernization Act (AMA) via RAMP. The RO informed the Veteran that his opt-in was not on the correct form, and that he had sixty days to send in the correct form. See February 2019 Correspondence. The Veteran did not send in the correct form within the sixty days. Therefore, adjudication will proceed in the legacy system. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) in January 2022. A transcript of the hearing has been associated with the file. The Board previously remanded the claim in February 2022. There was substantial compliance with the Board's remand directives, and the Board will proceed to adjudicate the claim. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial increased rating of 70 percent, but no higher, from July 25, 2017, for posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to a higher initial rating than he is currently assigned for his PTSD. See December 2018 Notice of Disagreement. The Veteran has a 30 percent rating for his PTSD from July 25, 2017 until March 7, 2022. From March 7, 2022 to present, the Veteran has a 70 percent rating for his PTSD. The Board finds that since the July 25, 2017 effective date of the grant of service connection, the Veteran's symptoms more nearly approximated a 70 percent rating, but no higher, for reasons that will be discussed in detail below. 38 C.F.R. §§ 4.7, 4.130, DC 9411. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations 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. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, (2007). 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. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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). 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, and thus may be sufficient to warrant a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). During the appeal period, the Veteran's acquired psychiatric disorder has been assigned staged ratings pursuant to Diagnostic Codes (DC) 9413 and 9411. The DC was changed to DC 9411 effective March 7, 2022. Under DCs 9413 and 9411, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 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. Upon review of the evidence, the evidence indicates that since the July 25, 2017 effective date of the grant of service connection, the Veteran's PTSD was characterized by impaired impulse control, suicidal ideation, panic attacks, difficulty adapting to stressful circumstances, and hypervigilance. Therefore, an initial rating of 70 percent, but no higher, is warranted. In September 2017, CAPRI records note that the Veteran was depressed, anxious, irritable, and had personality changes. See February 2019 CAPRI records. The Veteran underwent a January 2018 VA examination for his PTSD. The examiner diagnosed him with an other specified trauma- and stressor-related disorder. The examiner noted that the Veteran had symptoms of anxiety, sleep impairment, and difficulty adapting to stressful circumstances. The examiner found that the Veteran had 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. The examiner also noted the Veteran avoided people and secluded himself and was easily angered; he had punched walls, argued with strangers in bars, and had broken phones. December 2018 CAPRI records note that the Veteran was nervous, anxious, had memory issues, and poor sleep. Another entry stated the Veteran was depressed, hopeless, angry, had nightmares, had suicidal ideation with no intent/plan, and was hypervigilant. Id. January 2019 CAPRI records show the Veteran underwent testing to show his levels of anxiety, depression, and psychiatric symptoms. The testing showed he had severe anxiety, severe depression, and severe symptoms. Id. April 2019 CAPRI records state that the Veteran had symptoms of anxiety, low energy, poor concentration, trouble concentrating, irritability with snappiness, hopelessness, suicidal ideation with no intent/plan, anxiety in new places and crowds, hypervigilance, nightmares, and memory trouble. See March 2020 CAPRI records. June 2020 CAPRI records note the Veteran was experiencing passive suicidal ideation, was irritable, argumentative, and paranoid. He also reported auditory and visual hallucinations - respectively, hearing voices once a week since 2015-216 and waking up to see someone over him. See June 2020 CAPRI records. In July 2020, CAPRI records show the Veteran was anxious much of the time, had nightmares weekly, had racing thoughts, felt on edge, was hypervigilant, had panic attacks, anxiety, irritability, anger, depression, and hopelessness. See July 2020 CAPRI records; also see October 2020 CAPRI records. August 2020 CAPRI records note that the Veteran was having anger outbursts, a sleep disturbance, and anxiety. See October 2020 CAPRI records. During the January 2022 hearing, the Veteran reported that his anxiety has been bad "for years." He can't sit still, walks around and checks everything out at night, will be late for work because of anxiety, gets triggered easily, can't sit in restaurants, can't stay around people, doesn't go out in public too often, and misses work due to anxiety. He stated these symptoms have been continuous since the military. He stated that his job was working out for him, though he did require some accommodations. He also has issues retaining information. He reported he had trouble with law enforcement due to fighting, and that his anger issues also led to him punching walls and throwing things, which once led to him breaking his wrist. He becomes frustrated and overwhelmed easily and cannot relate to others. He reported he had suicidal ideation but no intent or plan. He suffers from daily panic attacks and has nightmares. Due to his nightmares, he punches people in his sleep. The Veteran underwent a VA examination for his PTSD in March 2022. The examiner diagnosed him with PTSD. The examiner found that he had symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and inability to establish and maintain effective relationships. The examiner further found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, and described the Veteran's symptoms as "worsening", "highly problematic," and "clinically disruptive." She noted the Veteran was employed full-time as a motorcycle maintenance technician. March 2022 CAPRI records show that the Veteran had symptoms of short term memory loss, delayed and interrupted sleep pattern (3-4 hours per night), decreased concentration, easy distractibility, fluctuating weight (stable), possible binge eating, decreased energy, fatigue, flashbacks (military service), intermittent nightmares (worse since discontinuing medication management), night terrors, irritability, short-temperament, hypervigilance, easily startled, excessive checking and completing rituals. He did not have any suicidal ideation. Upon review of the above and resolving all reasonable doubt in favor of the Veteran, the evidence shows that the Veteran's overall disability picture disability picture more nearly approximates the severity required for an initial 70 percent rating since the July 25, 2017 effective date of the grant of service connection. Significantly, the Veteran reported suicidal ideation on multiple occasions. As noted above, suicidal ideation alone may cause occupational and social impairment in most areas, consistent with a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Evidence from July 25, 2017 also documents reports of depression and anxiety, anger and irritability, hopelessness, hallucinations, and hypervigilance. The Veteran's PTSD was characterized by auditory and visual hallucinations, chronic sleep impairment, difficulty adapting to stressful circumstances, disturbances of motivation and mood, sustained periods of anxiety and depression, hypervigilance, suspiciousness, and nightmares. While the Veteran does not exhibit symptoms such as illogical speech, disorientation or near-continuous panic, the symptoms list in the general rating formula is non-exhaustive. The overall severity of the Veteran's symptoms for the period since July 25, 2017, particularly his history of suicidal ideation, frequent outbursts of anger and irritation, persistent depression and anxiety, suspiciousness and paranoia, and hallucinations warrant a 70 percent, but no higher, rating. The Board finds that consideration of VA treatment records, VA examinations, and Veteran's lay statements show that the Veteran's psychiatric disorder was manifested by symptoms associated with a 70 percent rating, e.g. suicidal ideation and impaired impulse control. While the Veteran did experience symptoms contemplated by a 100 percent rating-visual and auditory hallucinations-the evidence overall does not demonstrate the persistent level of impairment associated with a 100 percent rating. The Veteran only reported the hallucinations once in his medical records. Further, as noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. VA treatment records, the Veteran's lay statements, and VA examinations reflect that he is able to maintain a full-time job as a motorcycle maintenance technician. The severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Hopelessness, nightmares, hypervigilance, and difficulty sleeping are similar to near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, which is contemplated by the assigned 70 percent rating. The Veteran's periodic expression of suicidal ideation is contemplated by the 70 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Veteran has never been found to be in persistent danger of hurting self or others. Whenever the Veteran expressed suicidal ideation, it was without intent or plan, and the recent March 2022 VA examination and March 2022 VA treatment show he denied suicidal ideas. In sum, entitlement to an initial 70 percent rating is met. The criteria for a 100 percent rating are not met because the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. As such, an initial rating of 70 percent, but no higher, for the Veteran's acquired psychiatric order is granted. (Continued on the next page) ? The Board recognizes that the Veteran submitted a June 2020 VA Form 21-8940, indicating that his service-connected shoulder and TBI disabilities prevented him working for a period of three months following a motor vehicle accident that worsened his disabilities. The Board finds that this statement does not raise a claim for TDIU based on the Veteran's PTSD, as the Veteran did not indicate on the 8940, nor at any other point on the record, that his PTSD prevents him from obtaining and maintaining a substantially gainful occupation. The Veteran is employed full-time as a motorcycle maintenance technician, and has not indicated that his employment is less than substantial. Therefore, because the record shows that the Veteran has not indicated that his PTSD prevents him obtaining and maintaining a substantially gainful occupation, because he has not indicated that his employment is less than substantial, the Board finds that in this case, consideration of a TDIU claim is not warranted. Thus, the Board finds that, under these circumstances, a TDIU claim has not been reasonably raised by the record and is not part of this appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Eisenberg 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.