Citation Nr: A24007074 Decision Date: 02/15/24 Archive Date: 02/15/24 DOCKET NO. 200729-100701 DATE: February 15, 2024 ORDER Entitlement to an initial 70 percent disability rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence shows that the Veteran's PTSD most nearly approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1999 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned an initial 50 percent rating, effective May 2019. In the July 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on April 25, 2023. The hearing transcript has been incorporated into the record. Therefore, the Board may only consider the evidence of record at the time of the September 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to an initial 70 percent disability rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. The Veteran seeks a higher initial rating for his service-connected PTSD which has been rated at 50 percent effective May 2019, under 38 C.F.R. § 4.130, DC 9411. 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. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two ratings shall be applied, 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. Where there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's PTSD has been rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Pertinent in this case, the General Rating Formula provides that a 50 percent rating will be assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating will be 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent schedular rating contemplates 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. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan, supra. It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In this case, as the Veteran's initial disability rating is 50 percent, a higher disability rating may only be granted if the Veteran's symptoms more closely approximate the criteria for a 70 or 100 percent disability rating. The Veteran was afforded a VA examination in June 2019. The examiner diagnosed the Veteran with PTSD, in accordance with DSM-5 criteria, as related to his frequent combat service in Afghanistan. VA records also indicate that the Veteran has been identified as a former prisoner of war. The VA examiner determined that the Veteran has occupational and social impairment with reduced reliability and productivity. The Veteran has been married for 12 years and, regarding his marriage, stated, "I have to be very careful about getting agitated for no reason." The Veteran does not have children and stated that he has no close friends or family. He reported that he worked for the same employer for 9 years. The Veteran told the VA examiner that "[n]ight time kills me." The Veteran reported that it takes "forever" to fall asleep. He keeps the bedroom door locked and patrols the home. He reported being "super sensitive to noise," waking easily. He told the VA examiner that his wife sleeps in a different room because he wakes up regularly "in a panic," and it terrifies her. He reported that he has woken up and grabbed a pistol off the nightstand, pointed it in the mirror, and yelled for his reflection to "get out of here." He stated that his nightmares are vivid, and his wife tells him he screams out. He is "completely exhausted during the day." The Veteran reported never leaving home without a firearm. He prefers to be alone and feels emotionally detached. He reported feeling "paranoid with people" and that when he must interact with them, instead of focusing on the content of the encounter, he watches their body language to see if they are a threat or are being dishonest. He stated that he becomes "upset and defensive very quickly" and is always on edge, and that a recent thunderstorm left him immobilized with fear. He reports abusing alcohol and has benders during which he will drink all day from Friday to Sunday. The VA examiner listed the Veteran's symptoms as: suicidal ideation, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, flattened affect, chronic sleep impairment, suspiciousness, anxiety, and depressed mood. The VA examiner noted that the Veteran was well dressed and groomed; his mood was dysphoric; his eye contact was moderate; his thought processes were clear and linear; and he was fully oriented. The Veteran reported a history of suicidal ideation and that he still experiences chronic suicidal ideation. This June 2019 VA examination is assigned high probative weight because it is based on DSM-5 diagnostic criteria, contains an accurate medical history, and provides explanations that contain a sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran submitted lay statements from his wife, who knew the Veteran before his active-duty service. She stated that "[e]ach deployment resulted in him being more distant upon his return," and that after he left the Marines, he was not comfortable being in public with groups of people which was different from his pre-deployment behavior. She stated that the Veteran is no longer socially engaged and always wants to be alone. She described having to repeat herself multiple times when having a conversation with him and that he cannot remember simple things such as names, phone numbers, or driving directions. She described how his PTSD symptoms affect their marriage, stating that his extreme heightened awareness negatively affected their marriage and that when they are at home, he sets an alarm system and constantly ensures doors are locked. She stated that he does not leave the house without a firearm, and even at home he has a firearm on or near him. She also reported a change in their sleep routine due to the Veteran's erratic behaviors stating "[w]e used to sleep in the same bed at night, but now I have to sleep in a different room because he scares me. He sleeps with a pistol on his nightstand or under his pillow; he moves it around and I never know where he keeps it, but always keeps it within arm's length reach. On one occasion, we were sleeping in the same bed, and he suddenly woke up in the middle of the night jumping up and grabbing his pistol. He then pointed it at the mirror and then started yelling 'get the f**k out of here' repeatedly. He then realized it was a nightmare and that he was pointing the pistol at the mirror, and no one was actually there." She went on to report that floors creaking, or small noises set him off in a state of panic that result in him getting up in the middle of the night with the lights off and clearing the entire house with a pistol to ensure no one has broken into the house. She stated that it takes the Veteran a long time to fall asleep and that when he does, he tosses around, talks in his sleep, and wakes up to the slightest movement or noise in a panic. She concludes that his nighttime behaviors are "terrifying and I now sleep in a separate bedroom with the door locked at night." The Veteran's wife's lay statements are found to be credible because they are consistent with other evidence of the record and based on personal observations. They are assigned high probative weight. The Veteran testified at a Board hearing on the issue of an increased rating for PTSD in April 2023, contending that his symptoms warrant a higher rating. He stated that his suicidal ideation is a continuous struggle. As to his work life, the Veteran testified that he tries to avoid social interactions, and that his general irritability "interferes significantly with interacting with people." He went on to state that at work, he becomes overly angry to the point where he is not able to think rationally and that he gets "very, very stressed out for things that I don't believe a normal person would be stressed out about." He testified that he struggles to concentrate in meetings, discussions, and planning, stating that he must take notes of everything everyone says and then go back through the notes because he is unable to concentrate and process the conversation while it is happening. The Veteran testified that he has been reprimanded at work in many instances because of his "brash and harsh types of interactions with people," and that his behavior has certainly limited his career. He went on to testify about how his PTSD symptoms affect his relationships outside of the workplace. He testified that he has no close friendships with people, and that he prefers to be alone. He recognizes the toll that his PTSD has on his wife and stated that she was a very good person. He testified that he does not communicate with his mother often, usually once every four or five months, because he is very distant with people. When his father passed away, his wife told him that his response to the news was what would be expected if a general acquaintance had passed away, and not his father. The Veteran stated "[t]hat's really when it struck me that, you know, I've really got relationship issues, when your father passes away and you don't react to it." The Veteran went on to testify about his sleep, stating "[i]t's quite common for me to wake up in the middle of the night in some sort of nightmare. Kick the lamp off my nightstand, generally wake up yelling, sweating. My wife will come in the mornings and ask me, 'What the heck happened in here?' You know, that's typical." The Board finds the Veteran's testimony to be credible because it is consistent with his statements in his medical records and supported by his wife's lay statements. This testimony is assigned high probative weight. Some of the Veteran's symptoms align closely with a 50 percent disability rating, such as flattened affect, observed during his VA examination; difficulty in understanding complex commands, his wife stated that he his has difficulty with simple instructions; impairment of short- and long-term memory; and disturbances of motivation and mood. The Veteran also has symptoms that align more closely with a 70 percent rating, including chronic suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, which occurs mainly in the evenings and during the night; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The Veteran does not appear to have a relationship with anyone but his wife, and that is admittedly strained by his PTSD symptoms. The Veteran's nighttime behaviors rise to a level above a panic attack contemplated by the 50 percent rating because of the intensity and degree of potential lethality involved. While the Veteran has been able to maintain employment at the same company for a number of years, his PTSD symptoms have led to being reprimanded multiple times, limited his advancement potential, and there is no evidence that the Veteran has any work relationships. The Board also notes that the Veteran has chronic suicidal ideation. While the Veteran has not taken steps toward suicide, the ideation has been a constant part of his life. The Board finds that the evidence is in equipoise as to whether the Veteran should be afforded a 50 percent or 70 percent initial disability rating for his service-connected PTSD. The Board has considered whether the Veteran's symptoms warrant a 100 percent disability rating. The Board finds that the Veteran's symptoms do not most closely align with total occupational and social impairment. The Veteran has been able to maintain employment and is able to maintain the activities of daily living. He does not have persistent delusions or hallucinations; or engage in grossly inappropriate behavior. While he reports no social or employment relationships, he maintains a relationship with his wife and has for the past nine years. Therefore, there is no evidence of total impairment of occupational and social functioning and a 100 percent rating is not warranted. The benefit of the doubt is triggered when the evidence is in equipoise, as is the case here. Because a state of relative equipoise has been reached as to the issue of whether the Veteran's symptoms most closely align with an initial disability rating of 50 percent or 70 percent; the benefit of the doubt rule applies, and a 70 percent initial rating is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). R. Feinberg Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gruber, L. 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.