Citation Nr: 21065975 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-48 616 DATE: October 28, 2021 ORDER An initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's service-connected PTSD is manifested by no more than occupational and social impairment with deficiencies in most areas, such as work, family/social relations, judgment, thinking, and mood. Her symptoms did not result in more severe manifestations that more nearly approximated total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1997 to October 2001. The case is on appeal from a July 2017 rating decision. In a May 2019 decision, the Board denied entitlement to an effective date prior to February 1, 2017, for the grant of service connection for PTSD and remanded the claim for an initial rating higher than 70 percent for PTSD for further development. In October 2020, the Veteran submitted a VA Form 20-0996, requesting Higher Level Review of her PTSD claim. However, the Veteran did not properly complete the form, as she did not check the box to opt-in from an SOC/SSOC. As such, the Board will continue to consider her claim under the Legacy system. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 70 percent for PTSD. General Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Specific Rating Criteria The Veteran's service-connected PTSD is currently evaluated as 70 percent disabling, effective February 1, 2017, under DC 9411. Under the provisions of 38 C.F.R. § 4.130, the General Rating Formula for Mental Disorders is used to determine disability ratings. The General Rating Formula for Mental Disorders provides that 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. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to 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 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite level of occupational and social impairment. Analysis Service treatment records (STRs) from March 1988 provide the Veteran was seen for a medical evaluation following her request for an ELS. She complained of difficulty adjusting to naval service and frustration due to insensitive comments from male sailors on mess decks and not liking being in the Navy. She reported difficulty falling asleep with frequent awakening, and stated she averaged 3-4 hours of sleep a night. She also reported decreased appetite with fluctuations in weight over past 4 months. It was recommended she begin supportive counseling/short term therapy. The Veteran was provided a June 2017 Disability Benefits Questionnaire (DBQ) in which the examiner found the Veteran's level of occupational and social impairment regarding all mental diagnoses as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Further, the symptoms experienced were: anxiety, suspiciousness, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and the inability to establish and maintain effective relationships. During the DBQ, the examiner noted that the Veteran would often minimize her symptoms, even though she would become very anxious while discussing the harassment she endured during service. The examiner also observed the Veteran as oriented to person, place, time, and circumstance, having thought content and process within normal limits, and having good judgment and insight. The June 2017 VA examiner noted that the Veteran did not write her personal statement of the stressor until 4 months prior and that there was no evidence of the stressor in her military file. The Veteran reported being harassed by other servicemen in-service, including being inappropriately touched during inspection and sexually assaulted. The Veteran was afforded a VA examination in December 2019, in conjunction with another DBQ. The examiner found the Veteran's level of occupational and social impairment regarding all mental diagnoses remained the same since the June 2017 DBQ: occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner noted the Veteran experienced the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and inability to establish and maintain effective relationships. Despite these reports and observations, the Veteran reported she has a boyfriend who is patient. She also has two children who are doing well and a few close friends. She reported that her depressed mood affected her sleeping pattern, caused her to gain weight (30 lbs) over the past two years, and affected the quality of her work. She described struggling with staying asleep, averaging six hours of "broken" sleep. The Veteran also reported having anxiety attacked when having to face certain men at work. Additionally, she reported experiencing distressing, unwanted memories about her assaults daily. She also has bad dreams or nightmares related to the assault. While the Board acknowledges the severity of the Veteran's symptoms attributed to her PTSD, the evidence does not support that her PTSD caused total occupational and social impairment during the appeal period. Such determination is based on the totality of the medical and lay evidence and a holistic analysis. A disability rating that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a "persistent" threat of danger to others, not knowing one's own name, the names of close relatives, or one's occupation. Further, symptoms consistent with a 100 percent rating may include an inability to perform activities of daily living, disorientation, impaired hygiene, and persistent delusions or hallucinations. While there is evidence of the Veteran's difficulty maintaining work efficiency, anxiety, suspiciousness, chronic sleep impairment, there is no evidence of forgetfulness, suicidal ideation, or hallucinations. Additionally, as demonstrated by the Veteran's ability to maintain a relationship with her boyfriend and having close friends, she is able to maintain effective social relationships. Further, while her other symptoms, including sleep disturbances, may be persistent, they do not demonstrate an increase in severity of her disability not already addressed by the 70 percent disability rating. As such, the Veteran has not exhibited symptoms demonstrating an increase in severity occurred to the total impairment level. In sum, after a holistic analysis, the Board finds that during the period under appeal, the severity, frequency, and duration of the symptoms of the Veteran's service-connected PTSD features do not cause total occupational and social impairment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, an initial rating in excess of 70 percent for PTSD is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, 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.