Citation Nr: 21069661 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 19-36 152 DATE: November 19, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the appeal, the Veteran's PTSD manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1985 to March 1988 and December 2003 to June 2005, including service in the Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in March 2021. This matter was remanded by the Board in April 2021 for additional development. 1. Entitlement to a disability rating in excess of 70 percent for PTSD. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 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 is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is rated at 70 percent, effective February 1, 2020, rated at 100 percent, effective February 22, 2021, and rated at 70 percent, effective May 2, 2021. His PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted for 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 that 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather 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, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. The Board notes that in a United States Court of Appeals for Veteran's Claims' (Court) decision, the Court concluded that there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent criteria. The presence of suicidal ideation alone, that is, a Veteran's 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. Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017). As the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the code, the Board must consider all symptoms of a claimant's condition that affect occupational and social impairment. Mauerhan, 16 Vet. App. at 443. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the Diagnostic Code, the appropriate, equivalent rating will be assigned. Id. During the March 2021 hearing, the Veteran testified that his PTSD has worsened, and he seeks a 100 percent rating. He stated that he has depression, sleep problems, anger issues, is haunted by memories of Iraq, and has attempted suicide. Consistent with the April 2021 Board's remand instructions, the Veteran was afforded a new VA examination in August 2021. During the examination, the Veteran reported living with his son and completing household tasks, including caring for his son and preparing meals. He reported that his oldest son does the grocery shopping for him and he has a few friends. The examiner summarized the Veteran's psychiatric impairment as occupational and social impairment with reduced reliability and productivity. Symptoms noted during the examination were anxiety, depressed mood, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner noted that the Veteran was alert, oriented, not acutely distressed, denied imminent lethality, his thought process/content was without evidence of psychosis, and had some access to humor, though largely maintained a somber demeanor throughout. The examiner also noted that the Veteran has an informal arrangement with a trusted friend from church who assists in managing his finances. Medical treatment records indicate that the Veteran generally presents to appointments as well appearing, alert and oriented, and cooperative. Although sometimes his mood was noted as anxious and depressed, the Veteran still made good eye contact with fair attention span, his hygiene was unremarkable, was alert and oriented, and judgment was fair/good. See Medical Treatment Records, December 2019, January 2020, October 2020, May 2021, and June 2021. The Board finds that the preponderance of the evidence is against a finding that the Veteran's PTSD shows total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not show symptoms such 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. In fact, medical treatment records continue to note reports of having a family member or close friend to confide in and a continued relationship with his children. See Medical Treatment Records, June 2018, March 2019, January 2020, August 2020; see also VA Examination, August 2021. In light of the foregoing, the Board finds that a rating in excess of 70 percent is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.