Citation Nr: 20021333 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-14 927 DATE: March 25, 2020 ORDER Entitlement to an initial 70 percent rating, but no higher, for post-traumatic stress disorder (PTSD) is granted. FINDING OF FACT The functional impairment resulting from the Veteran’s service-connected PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, primarily due to such symptoms as suicidal ideation and spatial disorientation, since the effective date of service connection for the disability, but the preponderance of evidence is against a finding that the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders, or others of similar severity, frequency, and duration, or experienced total occupational and social impairment at any point in the appeal period. CONCLUSION OF LAW The criteria for an initial 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that granted service connection for PTSD with an initial 50 percent rating. The Veteran appealed the decision asserting a higher initial rating is warranted. This matter was previously before the Board in September 2019, when it was remanded so the Veteran could be scheduled for a new examination to assess the current severity of his disability due to his assertion that his symptoms had increased in severity since his most recent examination in February 2017. The Agency of Original Jurisdiction (AOJ) scheduled the Veteran for a new examination in December 2019, as directed, and has now returned the matter to the Board for further appellate consideration after readjudicating the appeal. The Veteran appeared at a hearing before the undersigned in May 2019. A transcript of the hearing is of record. The Board notes disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As previously noted, a 50 percent rating is currently assigned for PTSD since the effective date of service connection. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability 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 work like setting); and inability to establish and maintain effective relationship. Id. A 100 percent disability rating is reserved 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. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the claimant’s symptoms, but it must also make findings as to how those symptoms impact the claimant’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the claimant’s impairment must be “due to” those symptoms; therefore, a claimant may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. The Board notes the Veteran has not been treated for PTSD during the appeal period, so the Board’s analysis in this appeal encompasses the four VA examinations during the appeal period and the various lay statements of records, all of which will be discussed in more detail below. The Veteran’s initial April 2014 VA examiner assessed the Veteran’s functional impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress, or symptoms controlled by continuous medication, which corresponds to the 10 percent rating criteria under the General Rating Formula for Mental Disorders; however, the April 2014 VA examiner reported the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation, all of which are contemplated by the criteria for ratings in excess of 10 percent. The April 2014 VA examiner noted the Veteran did not report any occupational impairment during the examination, but rather extensive social impairment. The Veteran was provided a second VA examination in December 2015. The December 2015 VA examiner assessed the Veteran’s functional impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), which corresponds to the 30 percent rating criteria under the General Rating Formula for Mental Disorders, but, similar to the April 2014 VA examiner, the December 2015 VA examiner noted symptoms that are contemplated by the criteria for ratings in excess of 30 percent. The December 2015 VA examiner reported symptoms to include depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and spatial disorientation. The Veteran was provided a third VA examination in February 2017. The February 2017 VA examiner also assessed the Veteran’s functional impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). The February 2017 VA examiner attributed this functional impairment to symptoms to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. The February 2017 reiterated the Veteran’s concerns regarding his social functioning, especially its effects on his past marital relationships The Veteran’s most recent examination was the previously noted December 2019 VA examination. The December 2019 VA examiner assessed the Veteran’s functional impairment as reduced reliability and productivity in occupational and social situations, which corresponds to the 50 percent rating currently assigned for PTSD. The December 2019 VA examiner noted symptoms to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened effect, and disturbances of mood and motivation, all of which are contemplated by the criteria for ratings at or below the 50 percent rating currently assigned. The Veteran has submitted several statements during the appeal period. These statements have focused primarily on the effects of PTSD on his social functioning, to include his past marriages. During the May 2019 hearing before the undersigned, the Veteran’s testimony primarily focused on the severity on his alleged panic attacks; however, the Board notes frequent panic attacks are contemplated by the 50 percent rating currently assigned. The Veteran’s daughter, S.J., who has indicated she is a psychologist, has also provided a statement on the Veteran’s behalf. S.J. explained, in her opinion, the Veteran’s most concerning symptom is suicidal ideation, which has been noted during VA examination. S.J. further explained this type of symptomatology has caused the Veteran to become socially withdrawn and exhibit odd behavior at times. Based on a review of the record, the Board finds an initial 70 percent rating for PTSD is warranted. The Veteran has exhibited symptoms specifically contemplated by the 70 percent rating criteria, to include suicidal ideation and spatial disorientation. These symptoms, in conjunction with the Veteran’s other symptoms, have had a significant impact on his social functioning, family relations, judgment, thinking, and mood, to the extent that the Board finds the Veteran’s impairment approximates occupational and social impairment with deficiencies in most areas, even though there is limited evidence of specific occupational impairment. The Board finds the preponderance of evidence is against a finding that the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders or others of similar severity, frequency, and duration, or experienced total occupational and social impairment at any point in the appeal period. There is no evidence that suggests the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders. In fact, the Veteran’s reported symptoms are specifically listed in the criteria for ratings at or below 70 percent. There is limited evidence of specific occupational impairment, and the Veteran has worked during the appeal period. Although the Veteran’s PTSD has severely affected his social functioning, he has been able to maintain relationships with close family members, to include his children and current wife. Thus, the weight of the evidence is against a finding that the Veteran experiences total occupational and social impairment; therefore, a rating in excess of 70 percent is not warranted at any point in the appeal period because the criteria for a 100 percent rating have not been met. The Board acknowledges a total disability rating based on individual unemployability (TDIU) can be an element of an appeal of an initial rating when unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Yet, in this case, the Board finds unemployability has not been raised by the record. The Veteran has never asserted that he is unemployable as a result of his service-connected disabilities and has consistently focused on the effects of PTSD on his social functioning. During his initial April 2014 VA examination, the Veteran reported no occupational impairment and stated he was retired. The Veteran’s most recent examiner noted the Veteran had been working part-time but eventually stopped because business was slow, explaining he was “just doing it to have something to do.” The Board fully acknowledges there are points during the appeal period when the Veteran was not working, but this is not the central inquiry regarding unemployability. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither the Veteran nor the evidence raises the issue of whether his service-connected disabilities alone are of sufficient severity to produce unemployability; the evidence rather establishes that he has retired by choice rather than due to disability. Thus, consideration of TDIU is not warranted in the context of his appeal. In sum, the Board finds an initial 70 percent rating, but no higher, for PTSD is warranted based on the evidence in this case. Although there is no specific evidence of occupational impairment, there is evidence establishing the Veteran has deficiencies in several other areas due to symptoms explicitly noted in the 70 percent rating criteria under the General Rating Formula for Mental Disorders. Since the General Rating Formula for Mental Disorders contemplates both occupational and social functioning, the Veteran’s impairment more nearly approximates the 70 percent criteria, warranting a 70 percent rating, and, to that extent, his appeal is granted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, Counsel 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.