Citation Nr: 21066171 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-29 226 DATE: October 28, 2021 ORDER A higher 70 percent rating, though no greater, is granted for service-connected posttraumatic stress disorder (PTSD). FINDING OF FACT The Veteran's PTSD causes what amounts to occupational and social impairment with deficiencies in most areas, including because of symptoms such as suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), and difficulty in adapting to stressful circumstances (including work or a worklike setting). But there is not total occupational and social impairment. CONCLUSION OF LAW The criteria are met for a higher 70 percent rating, though no greater, for the service-connected PTSD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126-4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard with a period of active military service from May 2004 to October 2005 and periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). In April 2019, the Board remanded this claim back to the local Department of Veterans Affairs (VA) Regional Office (RO) to have the Veteran undergo a VA mental status examination for a needed medical opinion concerning the severity of his service-connected PTSD. To this end, he underwent this VA examination in October 2019, and the report of the evaluation provides the necessary information, so the additional development directed to occur on remand regarding this claim has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Separate DCs identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Under the General Rating Formula for Mental Disorders, the criteria for a 50 percent rating are 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 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. The criteria for a higher 70 percent rating are occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 work like setting); and inability to establish and maintain effective relationships. Id. The criteria for an even higher (and maximum possible) 100 percent rating are 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; and memory loss for names of close relatives, own occupation or own name. Id. The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather serve as mere examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Furthermore, as the U. S. Court of Appeals for the Federal Circuit (Federal Circuit) explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.''' Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). That said, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). To reiterate, it is necessary instead to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. During the pendency of this appeal, the principal medical evidence material to the Veteran's claim for a higher rating for his PTSD is contained in the reports of his July 2015 and October 2019 VA examinations. The remainder of the medical evaluation and treatment records contain no evidence materially inconsistent with the findings of those examinations as they relate to his disability. For the reasons and bases that will be discussed, the Board finds that his PTSD symptoms are more severe than presently contemplated by his existing 50 percent rating and instead most closely approximate a 70 percent rating for the entire period on appeal, though not an even greater 100 percent rating. Significantly, throughout the review period, the Veteran has exhibited impaired impulse control (such as unprovoked periods of violence), difficulty in adapting to stressful circumstances (including work or a worklike setting), and he has endorsed suicidal ideation. In 2015, he was required to undergo therapy following use of excessive force while employed as a prison guard. Treatment records from these mandated sessions reflect that he was unable to control his irritability and reported vulnerability to explosive demonstrations of anger. See January 2016 to May 2016 Treating Physician's Summary Reports. During his most recent October 2019 VA examination, on remand, he endorsed passive suicidal ideation, approximately twice a month, but denied any then current plan or intent. But suicidal ideation alone, that is, a Veteran's mere thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas, and thus may be sufficient to warrant a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). And this is indeed the situation here. When considering all evidence relevant to this claim, it shows the Veteran's PTSD causes what amounts to deficiencies in most areas of his life. Therefore, and especially when resolving all reasonable doubt in his favor, a higher 70 percent rating is warranted. 38 C.F.R. §§ 4.3, 4.7. However, the Board finds that an even higher 100 percent rating is not warranted as the Veteran does not exhibit total occupational and social impairment. He has not had gross impairment in thought processes or communication. He has not had persistent delusions or hallucinations. He has not had grossly inappropriate behavior, "persistent" (as opposed to occasional) danger of hurting himself or others, or intermittent inability to perform activities of daily living, i.e., ADLs (including maintenance of minimal personal hygiene). Additionally, he has not had disorientation to time or place, or memory loss for names of close relatives, his own occupation or own name. On the whole, then, the extent of occupational and social impairment the Veteran has shown owing to this service-connected disability is better approximated by a higher 70 percent rating, so his rating for this disability must be increased to this greater level. 38 C.F.R. §§ 4.3, 4.7. There is not probative indication of total occupational and social impairment required for an even higher 100 percent rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.