Citation Nr: 21004202 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 10-31 851 DATE: January 26, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to August 30, 2018 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 prior to August 30, 2018 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 September 1996 to June 1999 and from February 2005 to September 2005. It is important to note that the initial appeal concerned the evaluation of PTSD, then rated as 30 percent disabling. This VLJ remanded the issue and the AOJ, in an assortment of rating decisions, eventually granted an initial rating of 70 percent and then a staged rating of 100 percent. To the extent that he asserted that his disability was more severe than a 30 percent evaluation, he was correct. The issue before the Board is whether and evaluation in excess of 70 percent is warranted prior to the staged 100 percent. The issue of TDIU is not before the Board as that that was granted by the AOJ. 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to August 30, 2018 Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 prior to August 30, 2018. 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. The Veteran received a VA examination in January 2009. He reported that he lived with his wife and daughter but felt disconnected from them and had anger difficulties resulting in frequent yelling. He stated that he had lost interest in friends and activities and was agitated in large groups of people. He reported being on leave without pay from his job due to physical problems but also noted that he had difficulty concentrating at work and working well with others. The Veteran further reported intrusive thoughts and avoidance of cars and trucks, including that he no longer drives. He stated that he had trouble falling and staying asleep, that he was irritable and hypervigilant, with dysphoria and poor motivation. The examiner observed that the Veteran was fully oriented, articulate, and logical. There was no evidence of suicidal or homicidal ideation or hallucinations and delusions. Memory difficulties were noted. Another examination was conducted in June 2009. The examiner noted that the Veteran’s report of symptoms in the immediate aftermath of the incident were inconsistent with the severity of the symptoms reported at the January 2009 examination. Therefore, the examiner suggested that the Veteran was an unreliable historian at the January 2009 examination and that his PTSD symptoms were likely less severe than indicated. In April 2010 the Veteran was admitted to the hospital for suicidal ideation. He reported that he had an argument with his wife which caused him to become despondent and acutely suicidal, although he did not have a plan. He then presented at the hospital. The psychiatrist indicated that the Veteran’s suicidal ideation was transient in nature with strong protective factors. In May 2012 the Veteran reported memory deficiencies, including frequently forgetting steps in multi-step tasks and losing items such as keys. A cognitive assessment was performed which confirmed, and cognitive rehabilitation was recommended. Mental health treatment records from March 2015 indicate that the Veteran completed cognitive rehabilitation, at which point the provider did not recommend further PTSD treatment as the Veteran “appears to be coping with his symptoms with increased ease.” Other mental health treatment records from this period reveal that the Veteran was serving as the primary caretaker for his daughter. He consistently denied any suicidal or homicidal ideation. 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 for a lower rating. To warrant a 100 percent rating, the Veteran would need to more closely approximate total occupational and social impairment. While the Board notes the Veteran’s reported difficulties with relationships and work, total occupational and social impairment was not shown or approximated. Significantly, during this period, the Veteran acted as primary caretaker for his young daughter. He underwent cognitive rehabilitation for memory deficiencies, but the deficiencies were minor in nature, and his providers indicated that he was doing well following completion of the therapy. At no point did the Veteran or his providers indicate that there was substantial memory loss, such as names of close relatives. Upon completion of cognitive rehabilitation therapy in March 2015, the provider did not recommend any further PTSD treatment. The Board notes that the Veteran expressed suicidal ideation, which is similar to danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (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. Indeed, the only report of suicidal ideation was in April 2010, when the Veteran was hospitalized overnight. The hospitalization was due only to ideation, and the Veteran reported no plan. The psychiatrist indicated that the Veteran’s suicidal ideation was transient and admitted the Veteran overnight solely to ensure that an adequate treatment plan was in place upon discharge. At all other points during this period, including at his examinations, the Veteran denied any suicidal ideation. Here, there is no reliable evidence of a persistent danger to self or others. The record also establishes an absence of symptoms such as delusions or hallucinations, gross impairment ot thought or communication, disorientation or an inability to perform activities of daily living. 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 (prior to August 2018). The criteria for a 100 percent or higher rating are not met and the benefit sought on appeal must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.