Citation Nr: 25004977 Decision Date: 04/11/25 Archive Date: 04/11/25 DOCKET NO. 18-29 732 DATE: April 11, 2025 ORDER Entitlement to a disability rating in 100 percent for posttraumatic stress disorder (PTSD), from January 1, 2015, is granted. FINDING OF FACT From January 1, 2015, the Veteran's PTSD symptoms more nearly approximated total occupational and social impairment. CONCLUSION OF LAW 1. The criteria for entitlement to a disability rating of 100 percent for PTSD, from January 1, 2015, have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue of entitlement to a disability rating in excess of 70 percent for PTSD from May 4, 2016, in August 2024. Specifically, the Board requested the RO readjudicate the Veteran's claim, considering all of the evidence associated with the claims file since an April 2018 statement of the case (SOC) was issued, and issue a supplemental statement of the case (SSOC). The requested SSOC was issued in December 2024 that considered evidence associated with the claims file since an April 2018 SOC. As such, the record demonstrates substantial compliance with the Board's August 2024 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board previously denied the Veteran's claim for entitlement to a disability rating in excess of 70 percent prior to May 4, 2016 in a December 2023 Board decision. The Veteran appealed the Board's December 2023 decision to the United States Court of Appeals for Veterans Claims (Court). A November 2024 Court order vacated and remanded the issue of entitlement to a disability rating in excess of 70 percent for PTSD from January 1, 2015, to May 4, 2016, pursuant to an October 2024 Joint Motion for Partial Remand (JMPR). As such, the issue on appeal has been characterized as entitlement to a disability rating for PTSD in excess of 70 percent, from January 1, 2015. The Veteran testified before the undersigned Veterans Law Judge at an October 2022 Board hearing. A transcript of the hearing is of record. The Board is also cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran is already in receipt of a TDIU for the entire period on appeal from January 1, 2015 and does not have other service-connected disabilities totalling 60 percent. Also, on the November 2024 JMPR, the Court indicated the Veteran did not challenge the Board's denial of entitlement to a TDIU prior to January 1, 2015. Accordingly, the Board concludes that a claim for a TDIU is not on appeal before the Board. Entitlement to a disability rating in excess of 70 percent for PTSD, from January 1, 2015. As a matter of background, in February 2023, the Board granted a 70 percent disability rating from May 4, 2016. The Veteran appealed the February 2023 Board decision to the Court. In January 2024, the Court vacated the February 2023 Board decision (except for the favorable finding granting a 70 percent disability rating from May 4, 2016 for PTSD) and remanded the matter pursuant to a JMPR. In December 2023, the Board granted a 70 percent disability rating from January 1, 2015. The Veteran appealed the December 2023 Board decision to the Court. The Court vacated the December 2023 Board decision (except for the favorable finding granting an initial 70 percent disability rating prior to May 4, 2016, and a TDIU from January 1, 2015) and remanded the matter pursuant to a JMPR. As both issues have been returned to the Board, the Board has recharacterized the issue on appeal as entitlement to a disability rating in excess of 70 percent for PTSD from January 1, 2015. The parties agreed that the Board previously failed to address multiple VA treatment records from 2019, 2020, and 2021, noting suicidal ideation, to include that the Veteran has a "chronically increased risk of suicidality." See December 2023 JMPR. The parties also agreed that the Board previously failed to address VA treatment records from August 2015 where the Veteran reported he had thoughts of taking his life in April 2015 and had a previous suicide attempt; his report of a history of intermittent suicidal ideas with his last suicide attempt being 4 to 5 months prior. See October 2024 JMPR. The parties agreed the Board did not explain how the Veteran was not a persistent danger to himself in light of the VA treatment records from April 2018 to December 2021. See December 2023 and October 2024 JMPR. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38?U.S.C. §?1155; 38?C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule. If there is a question as to which evaluation should be applied to the veteran's disability, 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 primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7?Vet. App.?55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. See Fenderson v. West, 12?Vet. App.?119, 125-26 (1999). In rating mental disorders under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. 38?C.F.R. §?4.130; Bankhead v. Shulkin, 29?Vet. App.?10, 22 (2017). 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); Mauerhan v. Principi, 16?Vet. App.?436, 444 (2002). The Veteran's PTSD is rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders (General Formula). Relevant to the issue on appeal, under the General Formula, a 70 percent rating is assigned for 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); inability to establish and maintain effective relationships. A maximum 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; memory loss for names of close relatives, own occupation, or own name. 38?C.F.R. §?4.130, General Formula for Rating Mental Disorders. The Board notes that the regulation does not define the term "persistent." The Merriam-Webster dictionary defines "persistent" as existing for a long or longer than usual time or continuously." MERRIAM-WEBSTER DICTIONARY online, available at https://www.merriam-webster.com/dictionary. The Board also believes that to be the common understanding or ordinary meaning of that word. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (holding that in the absence of an express definition, words are given their ordinary meaning). In this case, the Board finds that the evidence of record demonstrates a rating in excess of 70 percent is not warranted from January 1, 2015. In that regard, in early August 2015, the Veteran expressed interest in mental health treatment. See August 2015 VA treatment records. The Veteran denied having recent thoughts about taking his life and a suicide risk screen was negative. Id. Later that month, the Veteran reported having thoughts of taking his life at an August 2015 suicide prevention risk assessment screening. See August 2015 VA treatment records. The Veteran reported he had these thoughts in April 2015. Id. It was noted that a full assessment was required since the Veteran was being admitted or establishing care with the mental health service line. Id. However, the VA staff psychiatrist concluded that the given the Veteran's presentation at the time of this assessment and considering noted risk and protective factors, the Veteran's current risk potential for suicidal behavior was a low risk and judged NOT to be at a significant risk for self-harm. Id. The Veteran underwent an initial psychiatric assessment in August 2015. The Veteran reported he has a history of suicidal ideas. See August 2015 VA treatment records. He reported over his 40 years post-Vietnam he has attempted suicide 5 to 6 times with his first time being at age 22 when he laid on a railroad track. Id. He stated he had at least 2 attempted drug overdoses. Id. He reported his last suicide attempt was 4 to 5 months prior when he went to a beach and attempted to fire a gun, but the gun jammed and since that time he has not had any subsequent suicidal ideas. Id. The VA psychiatrist noted the Veteran was casually dressed; had adequate grooming and hygiene; speech was fluent, coherent, relevant, and spontaneous; the Veteran denied hallucinations; there were no delusions expressed; there was no evidence of psychosis; the Veteran was oriented to person, place, and time; and his remote and recent memories were grossly intact. Id. The Veteran's judgment and insight were fair. Id. The VA psychiatrist noted the Veteran denied suicidal and homicidal ideas at present. Id. The VA psychiatrist noted the Veteran had a suicide attempt as recent as 4 to 5 months, but that the Veteran reported he was thankful it did not happen because he no longer feels like he needs to commit suicide. Id. The VA psychiatrist noted the Veteran has protective factors of social connectivity, sense of responsibility to his family, religious/spiritual beliefs, and ability to reason and problem solve. Id. The Veteran reported that though he owns guns, he is willing to relinquish them if there is concern about him being a danger to himself. Id. VA treatment records in May 2016 noted the Veteran did not have any suicidal ideation and his judgment and insight were fair. See May 2016 VA treatment records. The Veteran was afforded a VA examination in June 2016. The VA examiner noted the Veteran lived with his wife at the time; denied any domestic violence incidents; maintained contact with his two daughters; and socialized with other veteran friends. See June 2016 VA examination. The Veteran reported he had problems with crowds; last worked a year and half prior and had some stressful interactions with customers in their homes and was pressured to quit. Id. The VA examiner noted the Veteran denied having felt suicidal in the past month but had thoughts about it on and off and previously held a gun to his head, but a friend encouraged him to seek treatment. Id. The VA examiner endorsed the Veteran's symptoms included depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships and in adapting to stressful circumstances. Id. The VA examiner noted the Veteran was appropriately dressed and groomed; had normal speech; full affect; good insight and fair judgment; and denied homicidal ideation. Id. The VA examiner noted the Veteran had moderate to severe PTSD that negatively affected his social functioning, and noted he was able to hold a job over time but appeared to have started having difficulty interacting with customers towards the end of his job. Id. The VA examiner concluded the Veteran's overall symptomatology manifested in occupational and social impairment with reduced reliability and productivity. Id. June 2017 VA treatment records noted the Veteran was casually dress; well-groomed; oriented x4; thought process was logical, linear, and goal directed; there was no evidence of thought disorder; and no suicidal or homicidal ideation was reported. In a July 2017 VA treatment record, the Veteran reported he had suicidal ideation with a plan to take pills about 1 to 2 weeks prior. However, the Veteran stated that it scared him that he would get depressed in this way but that he emerged from the experience even more dedicated to living and being healthy. See July 2017 VA treatment records. He denied current suicidal ideation, intent, or plans. Id. In December 2017, the Veteran reported that he was thankful he was unsuccessful regarding his most recent suicidal attempt by overdose and expressed shame about the attempt. See December 2017 VA treatment records. He denied current suicidal ideation and expressed feeling hopeful about further progress in treatment. Id. The VA physician noted the Veteran was at a chronically increased risk of suicidality given psychiatric and medical diagnoses, past attempts, and demographics; however, the risk was acutely managed by the patient's lack of current hopelessness/burdensomeness/suicidal ideation, and active substance issues. Id. The VA physician noted the Veteran's engagement in treatment and help-seeking; and report of feeling reason to live outweighing reasons for death. Id. The VA physician concluded that the Veteran's acute suicide risk was not considered substantially elevated and continued outpatient level of care was most appropriate. Id. January 2018 VA treatment record notes the Veteran was at a chronically increased risk of suicidality given psychiatric and medical diagnoses, past attempts, and demographics; however, concluded the Veteran's acute risk was not considered substantially elevated. Id. In April 2018, the Veteran reported having suicidal thoughts but denied any plan or intent to harm himself. See April 2018 VA treatment records. The Veteran was afforded a second VA examination in April 2018. The Veteran reported that he was living with some friends; he was married but the relationship was off and on; he got along with the friends he lived with; and he did not socialize much. See April 2018 VA examination. He reported that he had nightmares every night; difficulty socializing due to anxiety; and had suicidal ideation but had not acted on it in a month and described feeling like his family was his reason to live. Id. The VA examiner endorsed the Veteran's symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. The VA examiner noted the Veteran was appropriately dressed and groomed; had normal speech; affect was mildly restricted; normal cognition; good insight and judgment; and there was no homicidal ideation. Id. The VA examiner concluded the Veteran's overall symptomatology manifested in occupational and social impairment with reduced reliability and productivity. Id. In December 2018, the Veteran denied active suicidal ideation over the past week and there was no evidence or endorsement of suicidal ideation, homicidal ideation, plan or intent. See December 2018 VA treatment records. In January 2019, March 2019, October 2020, July 2021, August 2021, December 2021, May 2022, September 2022, November 2022, and September 2023 VA treatment records, the VA psychiatrists and psychologists who treated the Veteran noted the patient was at a chronically increased risk of suicidality given psychiatric and medical diagnoses, past attempts, demographics, chronic/intermittent suicidal ideation. However, this risk was acutely mitigated by the patient's lack of current hopelessness/burdensomeness/suicidal ideation; lack of active substance issues; he showed engagement in treatment, and help-seeking behavior; treatment alliance was intact; and he stated protective factors that include feeling reasons to live outweighing reasons for death, especially the duty he feels to his family. Id. The VA psychiatrist/psychologist concluded the Veteran's acute suicide risk was not considered substantially elevated and continued outpatient level of care was most appropriate. Id. Additionally, the Veteran consistently denied active suicidal ideation, homicidal ideation, plan, or intent. Id. In March 2019, the Veteran reported continued passive suicidal ideation and denied active suicidal ideation. See March 2019 VA treatment records. Later that month, the Veteran reported chronic suicidal ideation had increased in intensity/frequency but denied escalation to intent/plan and he reported that his mental health appointments continued to be protective. Id. In October 2019, the Veteran called the Veterans Crisis Line and indicated he was having a hard time getting through to his psychiatrist. See October 2019 VA treatment records. He endorsed previous suicidal ideations and a previous attempt. Id. There was no indication the Veteran was endorsing any suicidal attempt, intent, or plan. In March 2022, the Veteran denied active suicidal ideation, homicidal ideation, plan, or intent. See March 2022 VA treatment records. In August 2022, April 2023, and May 2023 the Veteran denied active or passive suicidal ideation, plan, or intent. See August 2022, April 2023, and May 2023 VA treatment records. Throughout the entire period on appeal, VA treatment records demonstrated the Veteran was casually dressed; well-groomed; oriented x4; thought process was logical, linear, goal-directed; intact memory; fair insight and judgement; no hallucinations or delusions; and there was no evidence of thought disorder. See August 2015, June 2017, July 2017, December 2017, January 2018, February 2018, December 2018, March 2019, October 2020, July 2021, August 2021, December 2021, March 2022, May 2022, June 2022, August 2022, April 2023, and May 2023 VA treatment records. As noted, the Veteran testified before the undersigned at an October 2022 hearing. The Veteran testified that he has not been able to maintain relationships, including with his grandchildren; experiences nightmares; has panic attacks all the time; he continues to have suicidal ideation which he works on during his therapy sessions that he indicated he has had since filing his increased rating claim in May 2016; socializes with other veterans but avoids the general public; and that he retired from working in 2016 because his PTSD got in the way as he had a hard time with the public. See October 2022 hearing transcript. The Veteran testified that he had suicidal ideations and had been working in therapy about his suicidal ideation. Id. He stated that if he did not have therapy, he would be self-medicating. Id. The Veteran's representative asserted the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgment, thinking, and his mood with periods of actual total impairment. Id. After careful consideration, the Board finds that the Veteran's overall symptomatology more closely approximates the level of severity associated with a 100 percent disability rating. While no VA examiner has described the Veteran's PTSD as manifesting in total occupational and social impairment and the Veteran did not exhibit many of the symptoms associated with a 100 percent rating, the Board finds the evidence, when viewed in the light most favorable to the Veteran, supports a finding that he was a persistent danger of hurting himself throughout the period on appeal. The evidence shows the Veteran had periods of time where he expressed suicidal ideation, including describing a plan to overdose, mixed with other periods of time where he denied active suicidal ideation, plan, or intent. Some VA treatment records noted the Veteran was at a chronically increased risk of suicidality. The record also contains evidence against the Veteran's claim. For instance, after one attempt to take his life, he reported at an August 2015 evaluation that he no longer felt like he needs to commit suicide. Additionally, other VA treatment records noted this risk was acutely mitigated by the patient's lack of current hopelessness/burdensomeness/suicidal ideation; lack of active substance issues; he showed engagement in treatment, and help-seeking behavior; treatment alliance was intact; and he stated protective factors that include feeling reasons to live outweighing reasons for death, especially the duty he feels to his family. Based on a holistic review of the evidence during the period on appeal, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's PTSD results in total occupational and social impairment. While not constant, the Board finds the Veteran's thoughts of harming himself existed for a long or longer than usual time throughout the period on appeal. Therefore, the Board resolves reasonable doubt in his favor to find that the severity, frequency, and duration of the Veteran's PTSD symptoms and impairments, including suicidal ideation, are more consistent with that contemplated by the 100 percent disability rating from January 1, 2015. In sum, the Board finds that a 100 percent disability rating is warranted from January 1, 2015, and the claim is granted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.