Citation Nr: 25004941 Decision Date: 04/11/25 Archive Date: 04/11/25 DOCKET NO. 20-17 135 DATE: April 11, 2025 ORDER Entitlement to an increased 100 percent disability rating from July 24, 2018, for posttraumatic stress (PTSD) is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to an increased disability rating in excess of 70 percent from March 22, 2017, to July 23, 2018, for PTSD is denied. Entitlement to an initial increased disability rating of 50 percent prior to March 22, 2017, for PTSD is granted, subject to the laws that govern the payment of monetary benefits. FINDINGS OF FACT 1. Resolving any reasonable doubt, for the period from July 24, 2018, the Veteran's PTSD more closely approximates total occupational and social impairment. 2. From March 22, 2017, to July 23, 2018, the Veteran's PTSD more closely approximates occupational and social impairment with deficiencies in most areas at worst. 3. Prior to March 22, 2017, the Veteran's PTSD more closely approximates occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. For the period from July 24, 2018, the criteria for a 100 percent for the service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. For the period from March 22, 2017, to July 23, 2018, the criteria for an evaluation in excess of 70 percent for the service-connected PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. For the period prior to March 22, 2017, the criteria for an evaluation of 50 percent for the service-connected PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. This matter was previously before the Board in January 2024. The claim of entitlement to a disability rating in excess of 30 percent for service-connected PTSD prior to March 22, 2017, and in excess of 70 percent thereafter was denied. The Veteran appealed the January 2024 decision to the Court of Appeals for Veterans Claims (CAVC). In an October 2024 Joint Motion for Partial Remand (JMPR), the CAVC vacated and remanded the denials. The specific findings will be discussed below. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In this case, the Veteran's service-connected PTSD is currently evaluated as 30 percent disabling prior to March 22, 2017, and 70 percent thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, the following applies: A 30 percent rating is warranted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 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 a worklike setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Turning to the procedural evidence, the Veteran initially filed an informal claim on May 11, 2011, for PTSD. In July 2011, he filed a formal claim for PTSD. A January 2013 rating decision denied the claim. The Veteran timely appealed. He testified at a Board hearing in February 2017. An April 2018 Board decision granted service connection for PTSD. An August 2018 rating decision effectuated the Board's grant of service connection for PTSD and assigned a 30 percent disability evaluation effective May 11, 2011. The Veteran timely appealed. He testified at a Board hearing in August 2021. Based on this procedural history, the PTSD claim is an initial claim dating back to the May 2011 claim. Turning to the evidence of record, an August 2012 VA treatment record notes that the Veteran suffered from "an exacerbation of his PTSD symptoms, especially intrusive memories and nightmares, after he underwent open-heart surgery fall 2010. Symptoms at that time included moodiness, isolating, irritability with verbal outbursts, anxiety in crowds, edginess, nightmares, intrusive memories, occasional visual hallucinations." However, at the time of the record, the Veteran's symptoms had returned to a manageable baseline, with sleep interference being his major complaint. It was further noted that the Veteran had successfully completed a graduate studies program since the fall 2010 surgery and had symptoms relatively under control, indicating that he was successfully able to ascertain when a flashback may occur and take proactive measures to counter its negative effects. A December 2012 VA examination noted review of the VA claims folder. The Veteran reported depressed mood; anxiety; and disturbances of motivation and mood. There was a diagnosis of depressive disorder not otherwise specified (NOS). The examiner found, "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." The Veteran reported five marriages. He appeared appropriately dressed. He was clear and articulate throughout the interview. He displayed good insight into his symptoms and the functional impairment attributed to them. He did not appear to have any difficulty with either his recent or remote memory. He was a good historian. He denied any current suicidal or homicidal ideation. There was no observable thought disorder. His thinking was linear and logical. He was cooperative and his mood and affect were congruent and appropriate to thought content. His mood varied throughout the interview. His judgment regarding the claims process was sufficient. The examiner noted depressive disorder NOS was due to his depressed mood related to his health concerns and some thoughts for past decisions. In July 2013 VA treatment records, the Veteran denied any prior suicide attempts. He did endorse the thought of suicide 14 years ago. It was noted he appeared disheveled with depressed mood. His behavior was normal. Speech was not pressured. Thought process and content were normal. Insight and judgement were good. October 2014 VA treatment records indicate the Veteran was alert and well-oriented. There were no abnormalities in gait, movements, or speech. His thinking was logical and coherent, with no evidence of loose associations or other underlying thought disorder. His affect was full in range, stable, and mood was unremarkable. January 2015 VA treatment letter indicates the Veteran has sleep impairment, extreme anxiety, emotional numbness, hypervigilance, and "has some obsessions and spends a great deal of time keeping things orderly." In a January 2017 private treatment record, the Veteran reported his mood as "emotionless." He endorsed depression, anxiety, impaired sleep, isolation, and low concentration. He denied suicidal and homicidal ideations and psychosis. He had three marriages which ended mostly due to PTSD. He is on Zoloft. He was adequately groomed and appropriately dressed. His mood was congruent. His thought process was goal oriented, logical, and linear with normal thought content. His insight and judgment were intact. He was oriented and alert. His recent and remote memory were intact. During the February 2017 Board hearing, the Veteran testified that he experiences trouble with attention and concentration, anger, impaired sleep, and avoidance. A March 22, 2017, private treatment record provided by Dr. R.L. indicated that the Veteran's anxiety disorder results in marked restriction of activities of daily living; marked difficulties in maintaining social functions; marked difficulties in maintaining concentration, persistence, or pace; and repeated episodes of decompensation, each of extended duration. In April 2018 VA treatment records, the Veteran denied suicidal or homicidal ideations. A July 2018, private Psychiatric/Psychological Impairment Questionnaire provided by Dr. R.L. revealed that the Veteran is diagnosed with PTSD, depression, and anxiety. Symptoms endorsed included deficiencies in family relations; persistent irrational fears; persistent danger of hurting self or others; depression affecting the ability to function independently, appropriately, and effectively; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living; deficiencies in mood; difficulty in adapting to stressful circumstances; intrusive recollections of a traumatic experience; grossly inappropriate behavior, episodic; unprovoked hostility and irritability; inability to establish and maintain effective relationships; and sleep impairment. He is treated with Paxil and Wellbutrin. It was further indicated that the Veteran was incapable of working with the extent of interference from his symptoms. In July 2018 and September 2018 private treatment records, the Veteran reported his mood as depressed, anxious, and irritable. He denied suicidal and homicidal ideations, and audio/visual hallucinations. He was adequately groomed and appropriately dressed. His mood was congruent. His thought process was goal oriented, logical, and linear with normal thought content. His insight and judgment were intact. He was oriented and alert. His recent and remote memory were intact. A September 2020 private Psychological Evaluation Report provided by Dr. C.R. was associated with the record. The Veteran's grooming and hygiene appeared fair. Speech was of normal rate and volume. He was oriented with thought processes and content intact. He denied suicidal ideations and a history of suicide attempts. He denied having suffered from obsessions, either at the present or in the past. He did report some excessive fears and paranoia related to his trauma history. Dr. C.R. noted the Veteran did not appear to be attending to any internal stimuli during the examination. When asked about hallucinations, the Veteran stated, "Still today, I sometimes see these people; and at the same time, I'll think of thoughts about neighbors and get paranoid about 'em." Mood was depressed, anxious, and mildly irritable. He was cooperative. He reported impaired sleep, bathing every other day, dressing/changing out of bedclothes every other day, and eating one meal per day. He has a driver's license and indicates he drives. He sometimes accompanies his wife when she is running errands. He endorsed having trouble remembering things such as appointments and taking medications. He reported getting aggravated with people. He described his attention and concentration as "kind of low." Upon a mental status examination, Dr. C.R. found the Veteran appeared to have some deficits with memory; depression; significant anxiety; and trauma-related symptomatology. It was noted the Veteran may have difficultly being persistent completing tasks, requiring more time or have trouble finishing altogether. He exhibited fair judgment and insight. There were diagnoses of PTSD, major depressive disorder, and panic disorder. A September 2020 Psychiatric/Psychological Impairment Questionnaire was also provided by Dr. C.R. Symptoms endorsed included deficiencies in family relations; persistent irrational fears; persistent delusions of hallucinations; persistent danger of hurting self or others; deficiencies in work or school; gross impairment in thought processes or communication; panic or depression affecting the ability to function independently, appropriately, and effectively; neglect of personal appearance and hygiene; chronic sleep impairment; intermittent inability to perform activities of daily living; spatial disorientation; deficiencies in mood; difficulty in adapting to stressful circumstances; intrusive recollections of a traumatic experience; grossly inappropriate behavior; disorientation to time or place (at times, in the past); unprovoked hostility and irritability; inability to establish and maintain effective relationships; and deficiencies in judgement. During the August 2021 Board hearing, the Veteran testified that his depression impacts his ability to function on daily basis. He described constant anxiety, trouble concentrating, sleep impairment, and isolation. He endorsed irritability, to include a mix of verbal and physical (shoving matches) lashing out at his wife bi-weekly. He stated he will go three to four days without showering. He stated he has not told, not even his wife, that he thought of freezing himself to death in the mid-70's, but decided he did not want to through with it and called family that came and checked-in on him. He stated he has had suicidal ideations since May 2011, but "this is the first time I ever said anything about it... I thought they'd put me in a nut house." He denied memory issues. He endorsed suffering from visual hallucinations about every three months, described as: people wearing black, and he imagines that they are those little men that ran around the jungle. He endorsed obsessional rituals, to include smoking cigars outside in the morning and praying to his brother. He has to close his blinds every day and make sure his door is locked and the windows are closed. It was contended that the Veteran is unable to work due to his mental health condition. His spouse of 25 years testified the Veteran is irritable and takes medication. In September 2021 private treatment records, the Veteran reported his mood as irritable, depressed, emotionless, and anxious. He denied suicidal and homicidal ideations. He was adequately groomed and appropriately dressed. His mood was congruent. His thought process was goal oriented, logical, and linear with normal thought content. His insight and judgment were intact. He was oriented and alert. His recent and remote memory were intact. In the October 2024 JMPR, it was detailed that the Board failed to address symptoms reported in the September 2020 private examination, in particular, neglecting to discuss how the Veteran indicated problems working since 1972 or 1973 as well as irritability/anger leading to the loss of every job he attempted. Symptoms of panic attacks, difficulty concentrating, and self-destructive behavior demonstrated in that examination were further not discussed. Additionally, it was noted that the Board failed to explain the meaning of the term "persistent" as it applies in Diagnostic Code 9411 with regard to delusions/hallucinations and why the finding of delusions/hallucinations every 3 months in the September 2020 private examination were not severe enough for 100 percent evaluation. The January 2025 appellate brief from the Veteran's representative echoed these findings as well as highlighted the findings of the December 2024 private psychiatric examination. A December 2024 private psychiatric examination, upon a review of the claims file, subjective interview, and objective in-person testing, found that the Veteran meets the criteria for a diagnosis of PTSD based upon his symptoms of mood instability, flashbacks, nightmares, reactionary triggers, avoidance behaviors, and hypervigilance. The examiner identified symptoms of deficiencies in family relations, deficiencies in mood, persistent irrational fears, difficulty in adapting to stressful circumstances, persistent delusions or hallucinations, intrusive recollections of a traumatic experience, deficiencies in work or school, and unprovoked hostility or irritability. His symptoms were noted to caused marked interference with the ability to remember locations and work-like procedures; moderate to marked ability to maintain attention and concentration for extended periods; marked ability to perform activities with a schedule, maintain regular attendance, and be punctual within customary tolerance; moderate ability to sustain regular routine without supervision; marked ability to work in coordination with or proximity to others without being distracted by them; marked ability to complete a workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without unreasonable number and length of rest periods; marked ability to interact appropriately with the general public; marked ability to accept instructions and respond appropriately to criticism from supervisors; marked ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; moderate ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; moderate to marked ability to respond appropriately to changes in the work setting; moderate ability to be aware of normal hazards and take appropriate precautions; moderate to marked ability to travel to unfamiliar places or use public transportation; and moderate to marked ability to set realistic goals or make plans independently. The Veteran's symptoms were noted as having good days and bad days, indicating that that, while chronic, such symptoms would appear more prevalent at certain times than others. Prior to March 22, 2017 During this time period, the Veteran's overall condition appeared to be of a more moderate severity. It is notable that, but for the temporary exacerbation reported by the Veteran in the fall of 2011 after undergoing heart surgery, the Veteran did not report overall symptoms consistent with an evaluation of higher than 50 percent. His symptoms of depressed mood; anxiety; disturbances of motivation and mood; sleep disturbances; emotional numbness; hypervigilance; low concentration; anger; isolation are all similar to those contemplated by a 50 percent or lower evaluation under the Rating Schedule. In this regard, symptoms of disturbances of motivation and mood are specifically contemplated by the Rating Schedule for an evaluation of 50 percent and appear consistently throughout the record during the period prior to March 22, 2017. A higher evaluation is not warranted during this time period, as the Veteran's symptoms did not predominately include those contemplated in the Rating Schedule for a 70 percent or 100 percent evaluation until the periods beginning after March 22, 2017. Prior to that time, although there was reduced reliability and productivity, the Veteran was still able to successfully complete a graduate studies program, further evidencing that he was capable of higher functioning than would be contemplated for an individual with deficiencies in most areas, including school, or total occupational and social impairment. Lastly, even though he was beginning to experience symptoms of anger, isolation, and avoidance towards the end of this period, it did not appear to be to the extent displayed after March 22, 2017, in which it caused him to completely cut himself off socially from everyone. In regard to the issues raised by the JMPR and the Veteran' representative in regard to how the Veteran indicated problems working since 1972 or 1973 as well as irritability/anger leading to the loss of every job he attempted, the Board does not find such to be supported during the time period prior to March 22, 2017. Again, the Board highlights that the Veteran appears to have been involved in and successfully completed a graduate studies program during this time period and there were no indications of interruptions or interference from irritability/anger issues. It is reasonable to presume that such issues would have been brought to the attention of his medical providers if such had been present. As they were not, it must be further presumed that it is because the Veteran did not suffer such effects in his occupation or schooling during the time period in question. From March 22, 2017, to July 23, 2018 During this time period, the Veteran's overall condition appeared to be of a more moderately severe severity. It is notable that, the Veteran did not report overall symptoms consistent with an evaluation of higher than 70 percent. His symptoms of depressed mood; anxiety; disturbances of motivation and mood; sleep disturbances; emotional numbness; hypervigilance; low concentration; anger; and isolation all continued. Additionally, however, symptoms not previously seen, including marked restriction of activities of daily living; marked difficulties in maintaining social functions; marked difficulties in maintaining concentration, persistence, or pace; and repeated episodes of decompensation, each of extended duration, indicated a more significant interference with the Veteran's occupational and social functioning in most areas of his life than previously shown. These new symptoms are all similar to those contemplated by a 70 percent or lower evaluation under the Rating Schedule. In this regard, symptoms of neglect of personal appearance and hygiene, which may be impacted by his marked restrictions of activities of daily living; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships are specifically contemplated by the Rating Schedule for an evaluation of 70 percent and appear consistently throughout the record during the period from March 22, 2017, to July 23, 2018. A higher evaluation is not warranted during this time period, as the Veteran's symptoms did not predominately include those contemplated in the Rating Schedule for a 100 percent evaluation until the period beginning after July 23, 2018, as described in further detail below. Prior to that time, although there were deficiencies in most areas, and the Veteran appeared to be beginning to retract from his social associations, as he was no longer working, there was no indication he was totally socially impaired at that time period or that he had cut off all associations. From July 24, 2018 Based upon the above, the examiners found that the Veteran was not capable of working in any capacity during the time period since July 24, 2018, to specifically include the findings of Dr. R.L. in July 2018 and the private examination in December 2024. In this regard, it was noted that his present symptomology has been consistent since that time. It further appears that the Veteran was also totally socially impaired by the beginning of this time period, as he was completely isolated, but for the daily care he receives from his wife, as his symptoms prevented him from engaging with others due to his extreme anger, irritability, memory problems, and inability to concentrate without constant distractions. A January 2025 statement from the Veteran's spouse, she indicated that she now has to arrange and schedule his activities of daily living, as he gets confused and then agitated if he tries to do it on his own. Throughout this time period from July 24, 2018, the Board finds the symptoms observed are commensurate with a finding of total occupational and social impairment. In particular, the Board finds symptoms of peristent delusions/hallucinations (described in the September 2020 private examination and December 2024 private examination), intermittent inability to perform activities of daily living (indicated in the July 2018 private examination by Dr. R.L., September 2020 private examination, December 2024 private examination, and described by the Veteran's spouse in the January 2025 statement), and memory loss for locations and work-like procedures (indicated in the September 2020 private examination; December 2024 private examination; and described by the Veteran's spouse in the January 2025 statement) are all commensurate with a 100 percent disability under DC 9411. Additionally, as noted by the July 2018 and December 2024 private examiners, the Veteran's moderate to marked symptoms would certainly preclude any form of gainful employment due to the significant interferences discussed above. In particular, the Board finds that the conclusions of the July 2018 and December 2024 private examiners, which were based upon a thorough review of the Veteran's symptom history and relevant diagnostic criteria, are highly probative on the issue of the consistency of the Veteran's symptomology throughout the relevant appeals period. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In this regard, the examiners fully explained that these higher-level symptoms have been chronically present during the time period in question and while, manifesting at different times, as the Veteran's condition was found to have periods that ebb and flow with various symptoms, remained overwhelmingly consistent. The Veteran's symptoms were found to have initiated in July 2018 with a heightened level of severity commensurate with the symptoms of persistent delusions/hallucinations, intermittent inability to perform activities of daily living, and memory loss demonstrated at the times of the July 2018 treatment note by Dr. R.L and the December 2024 private examination and continued unabated. Last, the Board finds that the use of the term "persistent" as found in relation to the Veteran's persistent delusions/hallucinations throughout the appeals period, particularly when considering the December 2024 private examiner's findings that such symptoms have existed throughout the time period in question, appropriately describes the frequency of those symptoms. Although "persistent" was not defined by statute or regulation within the context of delusions/hallucinations, the plain meaning of the term contemplated an occurrence that is ongoing over a period of time or recurs on more than one occasion. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 865 (10th ed. 2000). In this regard, the Veteran's delusions/hallucinations are found to be persistent as they have been collectively ongoing during the appeals period from July 24, 2018, and recur at various times, such as described in the September 2020 private examination as happening every three months. Therefore, holistically examining the severity and frequency of the Veteran's symptoms, as welling as resolving any reasonable doubt in his favor, the Board finds the evidence does demonstrate total occupational and social impairment. Accordingly, for the period from July 24, 2018, a 100 percent evaluation for the Veteran's PTSD is warranted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan H. 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.