Citation Nr: 21003088 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 10-18 962A DATE: January 19, 2021 ORDER Entitlement to a disability rating in excess of 50 percent, prior to March 20, 2018 for service-connected posttraumatic stress disorder (PTSD), is denied. Entitlement to a disability rating of 70 percent, from March 20, 2018 for service-connected posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 27, 2012 is remanded. FINDINGS OF FACT 1. Prior to March 20, 2018 the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. Beginning March 20, 2018 the severity, frequency, and duration of the Veteran’s symptoms more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to March 20, 2018 the criteria for a disability rating in excess of 50 percent for service-connected 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 (DC) 9411. 2. Beginning March 20, 2018 the criteria for a disability rating of 70 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1969 in the United States Navy. Entitlement to an increased rating for service-connected PTSD. The Veteran contends that his PTSD symptoms manifest as more severe, more closely approximating higher evaluation criteria. 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). In the September 2008 rating action on appeal, service connection was granted and an initial 30 percent rating assigned, effective February 27, 2008. In an August 2020 rating decision, the rating was increased to 50 percent, effective February 27, 2008. Under the provisions of Diagnostic Code 9411 a rating of 50 percent is assignable 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 per 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’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 also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be due to those symptoms, a veteran 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. The issue before the Board is whether the Veteran’s associated symptoms caused the level of impairment that would warrant an increased rating at any time during the appeal period. The Board concludes that a 70 percent rating, but no higher, is warranted from March 22, 2018, the date of a hearing before the undersigned. VA and private treatment records, the August 2008, April 2016, and March 2019, and December 2019 VA examinations, and the Veteran’s lay statements and sworn testimony at the March 2018 hearing show that the his PTSD was manifested by symptoms associated with a 50 percent rating (e.g., depression, multiple panic attacks, severe anxiety, severe suspicion, nightmares, recurrent memories, mild memory loss), and symptoms associated with a 70 percent rating (e.g., difficulty in adapting to stressful circumstances, impaired impulse control, and suicidal ideation). He also had symptoms that are not listed with a specific rating, such as hypervigilance, angry outbursts, and social isolation. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms prior to March 20, 2018, the date of the Board hearing, are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. The criteria for a 70 percent rating are not met or more closely approximated prior to March 20, 2018. See 38 C.F.R. § 4.126. Angry outbursts and social isolation are similar to impaired judgement and difficulty in establishing and maintaining social relationships, which are contemplated by the assigned 50 percent rating. However, the Veteran’s unlisted symptom manifesting in 2018 such as hypervigilance, described by the Veteran in his hearing testimony, is similar to obsessional rituals interfering with routine activity and difficulty adapting in stressful circumstances, which are contemplated by a 70 percent rating. As of the March 22, 2018 hearing, the criteria for a 70 percent rating are met. The Board notes that the Veteran expressed suicidal ideation during his hearing testimony, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during all of his VA examinations. However, the Veteran is competent to report what he experiences, and the Board finds his sworn testimony regarding suicidal ideation to be credible and probative. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating prior to March 20, 2018 and 70 percent, but no higher, thereafter. While the Veteran did experience symptoms contemplated by a 70 percent rating—difficulty adapting to stressful situations and obsessional rituals— prior to March 20, 2018, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. The Board notes that the Veteran’s March 2018 sworn testimony indicates a clear progression of the Veteran’s PTSD symptoms, specifically the inclusion of hypervigilance, suicidal ideations, and impaired impulse control with manifestations such as thoughts, not plans, to harm others. The contemporary medical evidence is conflicted regarding whether the Veteran reports suicidal ideation. Therefore, the Board, resolving reasonable doubt in the favor of the Veteran, finds that the Veteran does experience these symptoms which, when taken in context with the remainder of his disability picture, warrants a 70 percent evaluation. The evidence does not support the existence of symptoms considered in the 100 percent rating criteria and the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating at any time during the appeal. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating for the period beginning March 20, 2018. 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 rating higher than 50 percent prior to March 20, 2018. However, the criteria for a 70 percent rating are approximated as of March 20, 2018 and the appeal to that extent is granted. REASONS FOR REMAND Entitlement to a TDIU prior March 27, 2012 is remanded. The Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, in his March 2018 hearing testimony, the Veteran indicated that he has not worked since 2008 and that he would not be able to obtain new employment due to symptomatology associated with service-connected disability. The Board finds the Veteran was likely unemployable as a result of his service-connected PTSD prior to March 2012. The claim for TDIU prior to March 27, 2012 is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.