Citation Nr: 21073466 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-29 316 DATE: December 8, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 17, 2020 is denied. Entitlement to a disability rating in excess of 70 percent for PTSD from July 17, 2020 is denied. FINDINGS OF FACT 1. Prior to July 17, 2020, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From July 17, 2020, the severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 50 percent for PTSD prior to July 17, 2020 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 entitlement to a disability rating in excess of 70 percent for PTSD from July 17, 2020 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to June 1965 and from August 1965 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the claim for entitlement to a disability rating in excess of 50 percent for PTSD in a March 2020 Board decision. Subsequently, there was a November 2020 Joint Motion for Partial Remand (JMPR) from the United States Court of Appeals for Veterans Claims (Court). This claim was last before the Board in April 2021 where it was remanded for development consistent with the JMPR. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Increased Rating Entitlement to service connection for PTSD with tobacco use disorder was granted in an October 2017 rating decision and a 50 percent disability rating was assigned, effective April 24, 2017. An October 2019 rating decision severed service connection for tobacco use disorder, effective January 1, 2020. Most recently, a July 2021 rating decision assigned a 70 percent disability rating for PTSD, effective July 17, 2020. 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). 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. 1. Entitlement to a disability rating in excess of 50 percent for PTSD prior to July 17, 2020 The Veteran contends that he is entitled to a higher disability rating for his PTSD prior to July 17, 2020. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximate the symptoms associated with a 50 percent rating and result in a level of impairment that most closely approximates the level of impairment associated with a 50 percent rating. Initially, the report from the July 2017 VA examination shows that the Veteran's PTSD does not cause occupational and social impairment with deficiencies in most areas. The examination report reflects that the VA examiner indicated that the Veteran's PTSD manifested itself through symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner also observed: the Veteran was casually dressed and appropriately groomed; he was alert and fully oriented; he was cooperative with the assessment process; his mood and affect were dysphoric and flattened; he displayed good eye contact; his speech was gravely, but spontaneous and goal-directed; his thought processes were organized with no evidence of formal thought disorder, hallucinations, delusions, mania, or obsessive-compulsive features; he appeared to be of at least average intelligence, with capacity for abstract thought, and good insight into his emotional functioning. Lastly, the Veteran reported experiencing suicidal thoughts. The July 2017 VA examination does not show that the Veteran's PTSD manifested itself in symptoms indicative of occupational and social impairment, with deficiencies in most areas during the period on appeal. The Veteran experienced suicidal ideation. However, given that the VA examiner observed that the Veteran's thought processes were organized with no evidence of formal thought disorder, hallucinations, delusions, mania, or obsessive-compulsive features, obsessional rituals which interfere with routine activities was not shown by the examination report. Next, given that the VA examiner observed that the Veteran exhibited logical speech that was spontaneous and goal-directed, speech that was intermittently illogical, obscure, or irrelevant was not shown by the examination report. The examination report also does not show near-continuous panic or depression affecting the ability to function independently, appropriately and effectively given that he was cooperative with the assessment process and his mood and affect were dysphoric and flattened. Moreover, based upon an in-person examination and a review of the claims file, the examiner opined that the Veteran exhibited occupational and social impairment with reduced reliability and productivity, the level of occupational and social impairment that warrants the assignment of a 50 percent disability rating. The evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's symptoms are contemplated by a 50 percent rating. As such, a disability rating in excess of 50 percent for the period on appeal is not warranted. 2. Entitlement to a disability rating in excess of 70 percent for PTSD from July 17, 2020 The Veteran contends that he is entitled to a higher disability rating. VA and private treatment records, the June 2021 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating (depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, suicidal ideation). 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, 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, and during the June 2021 VA examination, the VA examiner noted that the Veteran was at a low acute risk because he endorsed both active and passive suicidal thoughts, but was currently experiencing passive suicidal thoughts. 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 Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Initially, the report from the June 2021 VA examination shows that the Veteran's PTSD does not cause total occupational and social impairment. The examination report reflects that the VA examiner indicated that the Veteran's PTSD manifested itself through symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. The examiner also observed that: the Veteran appeared for his scheduled appointment on time and was casually dressed and appropriately groomed; he was alert and oriented with fair eye contact, speech, and motor functioning; his thought processes were worry-prone and pessimistic with no evidence of hallucinations or delusions at the time; the Veteran exhibited fair judgment with fair insight; his mood appeared depressed and affect was mood congruent; and he denied active suicidal or homicidal ideation or intent when asked directly. The June 2021 VA examination does not show that the Veteran's PTSD manifests itself in symptoms indicative of total occupational and social impairment. First, given that the VA examiner observed that the Veteran was alert and oriented with fair eye contact, speech, and motor functioning, gross impairment in thought processes and memory loss for names of close relatives, his own occupation, and his own name were not shown by the examination report. Next, persistent delusions or hallucinations were not shown. The examination report also does not show an inability to perform activities of daily living given that he was dressed casually, neatly, and appropriately. Moreover, the report contains no observation that he engaged in grossly inappropriate behavior or was disoriented to time or place. Finally, the examiner indicated that he did not appear to pose any threat of danger or injury to himself or others. Moreover, based upon an in-person examination and a review of the claims file, the examiner opined that the Veteran exhibited occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, the level of occupational and social impairment that warrants the assignment of a 70 percent disability rating. For these reasons, the Board finds that a rating in excess of 70 percent for PTSD is not warranted as the evidence does not show that the Veteran's PTSD has resulted in total social impairment. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.