Citation Nr: 21002318 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-24 849A DATE: January 13, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for PTSD is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1995 to September 1997. In November 2019, the Board of Veterans’ Appeals (Board) remanded the appeal for additional development and the Board finds that there was substantial compliance with the Board remand directions. While the appeal was in remand status, the regional office (RO) attempted to obtain the Veteran’s outstanding private treatment records for Dr. Larkin. See 38 U.S.C. § 5103A (b); December 2019 Subsequent Development Letter. The Veteran did not complete and return the provided VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA) and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA). Beyond the above, it is valuable to note that the Veteran does have a total disability rating based on individual unemployability (TDIU). This is the only issue on appeal. The Veteran contends that his PTSD symptoms warrant an increased evaluation in excess of 70 percent. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 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; or memory loss for names of close relatives, own occupation or own name. VA treatment records, the July 2017 VA examination, and the Veteran’s lay statements show that the Veteran’s acquired psychiatric disorder was manifested by symptoms associated with a 70 percent rating (occupational and social impairment with deficiencies in most areas, impaired impulse control, and difficulty in adapting to stressful circumstances), and symptoms associated with a 100 percent rating (intermittent inability to perform activities of daily living). He also had symptoms that are not listed with a specific rating, such as cannabis abuse, stomach problems, and suspiciousness. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Moreover, cannabis abuse, stomach problems, and suspiciousness are similar to near-continuous panic or depression affecting the ability to function independently, which are contemplated by the assigned 70 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA treatment records and the July 2017 VA examination indicate that the Veteran had PTSD and cannabis dependence. During the July 2017 VA examination, the Veteran reported re-experiencing trauma, avoidance, feeling detached from others, sleep problems, irritable mood, difficulty concentrating, hypervigilance, and excessive cannabis intake. While the Veteran did experience symptoms contemplated by a 100 percent rating—intermittent inability to perform activities of daily living—the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability, he was not totally socially impaired. While December 2018 VA treatment records show the Veteran reported perceived thoughts of hurting others without following through on these thoughts, prior and subsequent treatment records contain reports that the Veteran lacked a social support system and only had employment problems. See, e.g. May 2017 West LA VAMC Mental Health Note. In fact, during the June 2013 VA examination, the Veteran reported avoidance of places and people that might remind him of the trauma, feeling detached or estranged from others, and irritability. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, Associate 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.