Citation Nr: 21065927 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-33 471 DATE: October 28, 2021 ORDER Entitlement to a disability rating in excess of 70 percent from April 14, 2014, through July 15, 2018, for service-connected post-traumatic stress disorder with alcohol abuse (PTSD) is denied. Entitlement to 100 percent disability rating from July 16, 2018, for service-connected PTSD is granted. FINDINGS OF FACT 1. From April 14, 2014, the severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. 2. From July 16, 2018, the Veteran's the severity, frequency, and duration of the Veteran's symptoms more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD from April 14, 2014, through July 15, 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. 2. The criteria for a 100 percent disability rating for PTSD have not been met from July 16, 2018. 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in August 2019. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that in the August 2019 Board decision, a claim of entitlement to a total disability rating based on individual unemployability (TDIU) was raised and remanded as part of the PTSD increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a July 2020 rating decision, TDIU was granted effective July 10, 2012, the date VA received the Veteran's service connection claim for PTSD. It does not appear from the record that the Veteran is appealing the effective date of the TDIU claim and, therefore, the claim will not be further addressed in this decision. Increased Rating Criteria Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to disability rating greater than 70 percent for service-connected PTSD prior to January 3, 2020. Prior to January 3, 2020, the Veteran has been in receipt of a 70 percent rating for service-connected PTSD, pursuant to Diagnostic Code 9411. 38 C.F.R. § 4.130. The Veteran contends that he is entitled to a rating in excess of 70 percent prior to January 3, 2020. The Board notes that the current increased rating claim arose on April 14, 2014, when the RO proposed a reduced disability rating for PTSD, which the Veteran appealed. 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. April 14, 2014 - July 15, 2018 VA and private treatment records, the March 2014 and March 2016 VA examination reports, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating (suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships), and symptoms associated with 50 and 30 percent ratings (impairment of short and long term memory, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, depressed mood, anxiety, mild memory loss). He also had symptoms that are not listed with a specific rating, such as hypervigilance, self-isolation, and intrusive recollections. 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. Neither the VA examiners in March 2014 and March 2016, nor a private physician in August 2015, assessed the Veteran as having any symptoms associated with a 100 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, in his August 2015 report, the private physician described the Veteran's suicidal ideation as transient, and that he did not appear to be an imminent danger to himself or others. It does not appear that the Veteran reported having suicidal or homicidal thoughts during his VA examinations, and VA treatment notes show he denied having such thoughts and ideations. 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 March 2014 and March 2016 VA examiners determined the Veteran had 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 conversation normal), consistent with a 30 percent rating. However, due to his reported symptoms, the Veteran was assigned a 70 percent disability evaluation for PTSD. 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 July 16, 2018. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. July 16, 2018 January 2, 2020 The Board concludes that the Veteran's PTSD did more nearly approximate the level of impairment required for a disability rating of 100 percent since July 16, 2018. The Veteran submitted an assessment from his private psychologist, Dr. B.M., dated July 16, 2018. Dr. B.M. stated that he treated the Veteran for more than four years through the VA and his private practice. He described the Veteran's symptoms as severe and detrimental to many areas of his life. The Veteran's symptoms included being extremely isolated socially, difficulty trusting others, and severe problems with getting along with others due to anger. Dr. B.M. opined that the Veteran's current PTSD symptoms are not only much more severe than the 70 percent rating reflects, but that the symptoms have become pervasively disabling across all functional domains, including attention, memory, thinking, judgment, mood, ability to form and maintain effective relationships, and capacity to work. Dr. B.M. also provided treatment notes documenting the Veteran's behavioral observations and symptoms during individual and group therapy sessions. The Board finds that, based on Dr. B.M.'s assessment that is supported by his personal experience with treating the Veteran for over four years, the Veteran's PTSD symptoms more nearly approximated total social and occupational impairment since July 16, 2018. As the most probative evidence of record shows total occupational and social impairment, the maximum 100 percent rating is warranted from July 16, 2018. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.