Citation Nr: 21000123 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-06 374 DATE: January 4, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) prior to September 2, 2020 is denied. FINDING OF FACT Prior to September 2, 2020, the Veteran’s PTSD is not manifested by total and occupational social impairment. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) prior to September 2, 2020 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 2000 through January 2006 with participation in Operation Enduring Freedom and participation in Iraqi Freedom, with service in Djibouti and Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in December 2019. This matter was remanded by the Board in May 2020 for additional development. The Board notes that the Veteran was awarded a total disability rating based on individual unemployability due to the Veteran’s service-connected disabilities (TDIU), effective August 20, 2014, in the May 2020 Board decision. As the effective date of August 20, 2014 is the date of claim for the Veteran’s PTSD and the date the Veteran meets the schedular requirements for TDIU, the Board finds that the Veteran has been granted individual unemployability throughout the entire appeal and the issue is not before the Board. C.f. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) prior to September 2, 2020. The Veteran’s PTSD is rated at 70 percent, effective August 20, 2014 and rated at 100 percent, effective September 2, 2020. The Veteran contends that his PTSD is more disabling than the rating indicates and warrants a 100 percent schedular rating throughout the appeal period. The Veteran’s PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted 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 that 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 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. The Board notes that in a United States Court of Appeals for Veteran’s Claims’ (Court) decision, the Court concluded that there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent criteria. The presence of 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. Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). As the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the code, the Board must consider all symptoms of a claimant’s condition that affect the occupational and social impairment. Mauerhan, 16 Vet. App. at 443. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the Diagnostic Code, the appropriate, equivalent rating will be assigned. Id. In a May 2020 Board decision, the Board reviewed the evidence of record and found that the Veteran’s PTSD warranted at least a 70 percent disability rating throughout the appeal period. A rating in excess of 70 percent was remanded in the same decision in order to obtain a new examination to determine if the Veteran’s PTSD warrants a higher rating. See VA Examination, October 2015; see also Therapist Statement, December 2019; Hearing Testimony, December 2019; Lay Statement, January 2020. In September 2020, a VA examination was conducted where the examiner concluded that the Veteran has total occupational and social impairment and showed an absence of improved social functioning and evidence since his last examination supporting continued negative effects. The examiner noted that the Veteran experiences symptoms of depressed mood, anxiety, panic attacks more than once a week, near-continuous depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, flattened affect, 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, inability to establish and maintain effective relationships, suicidal ideation, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Board finds that the Veteran’s disability more closely approximates the picture contemplated by the 70 percent rating prior to September 2, 2020. Prior to the September 2020 VA examination, the medical and lay evidence demonstrates that the Veteran continues to have a relationship with his family and some friends. During the December 2019 hearing, the Veteran testified that he has two friends that he occasionally meets with and he lives with his parents and occasionally has dinner with them. He also stated that he has two sisters and three nieces that he sees once a month and asserted that they “keep him going.” Further, the evidence does not show, nor has the Veteran contended, that he experiences symptoms of gross impairment in thought processes or communication; persistent delusions or hallucinations; persistent danger of hurting others or self; grossly inappropriate behavior; an intermittent inability to perform activities of daily living; memory loss for names of close relatives, own occupation, or own name; or disorientation to time or place. See also VA Examination, October 2015. As such, a rating in excess of 70 percent prior to September 2, 2020 is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.