Citation Nr: 21073475 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-50 876 DATE: December 8, 2021 ORDER A rating in excess of 70 percent, to include a rating in excess of 50 percent prior to February 11, 2020 for service-connected PTSD is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's psychiatric symptoms has not been shown to more closely approximate occupational and social impairment with deficiencies in most areas prior to February 11, 2020. 2. The severity, frequency, and duration of the Veteran's symptoms has not more closely approximated total occupational and social impairment during the course of the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for service-connected PTSD, to include a rating in excess of 50 percent prior to February 11, 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 CONCLUSION The Veteran had active military service from July 1991 to May 1995, June 2009 to February 2010, April 2012 to November 2012, January 2013 to February 2013, and January 2014 to May 2014. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in August 2015, the Veteran was granted service connection for PTSD and right shoulder disability. In October 2015, the Veteran filed a notice of disagreement (NOD) for PTSD, sleep deprivation, bruxism, and bilateral shoulder disability. In August 2017, the RO issued a statement of the case (SOC) and addressed the Veteran's claims for entitlement to an increased rating for right shoulder disability and PTSD also claimed as bruxism and sleep deprivation. Instead of filing a VA Form 9 to perfect his appeal, in August 2017, the Veteran filed another NOD. In September 2017, the RO requested clarification as to the August 2017 NOD. See September 2017 Email Correspondence. Specifically, the RO noted that the Veteran's statement of needing dental treatment due to bruxism is not construed as a certification request but that it allowed for his appeal regarding PTSD to remain open until the issue of bruxism was resolved. At first the Veteran responded that he only wanted to appeal his diverticulitis claim, but then later indicated that he wished to proceed with the appeal pending for bruxism related to PTSD. See September 2017 Email Correspondence. As the prior Board decision noted, as the Veteran stated that he wished to proceed with the appeal for his PTSD, the Board finds that the August 2017 NOD should be liberally construed as a substantive appeal, in lieu of a VA Form 9, and the Board will exercise jurisdiction over the claim. See Percy v. Shinseki, 23Vet. App.37, 45 (2009) (finding that VA waives objection to the timeliness of a Substantive Appeal by taking actions that lead the veteran to believe that an appeal was perfected). This matter was before the Board in April 2020 where this matter was remanded for readjudication by the RO given that a waiver for additional evidence received since the most recent Statement of the Case (SOC) was not received from the Veteran. Subsequently, an August 2020 rating decision increased the Veteran's PTSD rating to 70 percent from February 11, 2020. Increased Rating The Veteran seeks an increased rating for his PTSD. 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 70 percent or higher. The Board concludes that, prior to February 11, 2020, 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 approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. 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. The Veteran was afforded a VA examination in May 2015 at which he was diagnosed with PTSD. The Veteran reported that he has two children a daughter and a son. He reported having partial custody of his daughter, and stated that he enjoys spending time with her during their visitations. The Veteran indicated that he had no social activities at the time of the examination though he reported enjoying fishing and hunting. He described himself as a "hermit" who likes to stay by himself and not interact much with other people. The Veteran endorsed symptoms of chronic sleep impairment, 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 worklike setting. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Mental status examination revealed good attention to grooming and hygiene, speech was spontaneous and fluent, thoughts were logical, organized and goal directed. His mood appeared euthymic, and he displayed a normal range of affect. The Veteran was cooperative, pleasant, and used appropriate humor at times. He was alert, oriented, and cognitive mental status appeared intact to the examiner. The Veteran was afforded another VA examination in April 2017 at which his diagnosis of PTSD was confirmed. He reported being in a relationship at the time of the exam and said that he prefers to spend time alone which his girlfriend is supportive of. The Veteran reported having a fair relationship with his son and a very good relationship with his daughter. He indicated seeing his daughter on weekends, his parents a few times a week, and his brother weekly. He indicated a positive family relationship. The Veteran worked at Togus VAMC as a dispatcher and was applying for a position as a VA police officer. The Veteran endorsed symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The Veteran reported experiencing anxiety three to four times per week. He rated his anxiety as typically being seven out of ten. He reported intrusive thoughts regarding his traumatic military experiences five times per week and reported trauma-related nightmares one night per week. The Veteran denied having panic attacks in the past year and denied suicidal and homicidal ideations as well as hallucinations. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was afforded a VA examination in February 2020 pursuant to a Board remand. The Veteran reported having a loving wife, but indicated that he was unable to sleep in the same bed as her because he assaults her in his sleep. He reported a good relationship with his daughter, but denied any other close relationships or friendships. The Veteran reported working at the time of the examination as a police officer, but indicated he was very anxious at work and often hid in his patrol car or called in sick when they do training exercises which he finds triggering. He plans to transition to the night shift to allow him to deal with fewer people. The Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, impaired judgment, 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, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, such as unprovoked irritability with periods of violence. Mental status examination indicated that the Veteran was oriented x3, his thinking was logical and goal-oriented, and his speech was fluent and of normal rate and volume. The Veteran was casually dressed, neatly groomed with adequate hygiene. He was cooperative but disengaged with short responses and his mood was depressed and affect was flat. He exhibited no signs of hallucinations or delusions. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. VA treatment notes indicate that the Veteran consistently denied suicidal ideations. For example, a June 2015 treatment note indicates the Veteran denied any history of suicidal behaviors or problematic aggressive behaviors. October 2015, April 2016, April 2017, and October 2018 treatment notes show no suicide risk or suicidal ideations reported. An October 2015 VA mental status examination indicated the Veteran was appropriately dressed and groomed, oriented x 4, alert, cooperative, and motivated. His though process appeared free from psychotic content and his speech was a normal rate and rhythm. His insight and judgment were impair and his mood was slightly anxious, irritable and depressed. Affect was congruent to his mood. An April 2017 VA mental status examination revealed no hallucinations or delusions with linear/logical thoughts, normal speech rate and volume, and good judgment. Prior to February 11, 2020 Prior to February 11, 2020, VA treatment records, the VA examinations of record, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 50 percent rating (disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships), and a symptom associated with a 70 percent rating (difficulty in adapting to stressful circumstances, including work or a worklike setting). The Veteran also reported nightmares and intrusive thoughts regarding his traumatic military experiences. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that these symptoms were not present daily, rather that his intrusive thoughts occurred approximately five times per week and nightmares once per week. Further, nightmares and intrusive thoughts are similar to panic attacks and chronic sleep impairment, which are contemplated by the assigned 50 percent rating. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA and private treatment records and the May 2015 and April 2017 VA examinations indicate that the Veteran had good hygiene and his thoughts were logical, organized, and goal-directed. An October 2015 VA mental status examination indicated the Veteran was appropriately dressed and groomed, oriented x 4, alert, cooperative, and motivated. His though process appeared free from psychotic content and his speech was a normal rate and rhythm. His insight and judgment were impaired and his mood was slightly anxious, irritable and depressed. Affect was congruent to his mood. While the Veteran did experience a symptom contemplated by a 70 percent rating difficulty in adapting to stressful circumstances, including work or a worklike setting the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Further, while May 2015 VA treatment records show the Veteran reported perceived difficulty with certain trainings and interpersonal interactions at work, prior and subsequent treatment records contain reports that the Veteran was generally performing well at work. As such, a rating in excess of 50 percent for PTSD prior to February 11, 2020 is denied. Rating in excess of 70 percent The Board does not find that the Veteran's symptoms caused the level of impairment required for a disability rating in excess of 70 percent. The maximum 100 percent rating is assigned for total occupational and total social impairment. Symptoms include gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent ability 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. The frequency, duration, and severity of all symptoms must be considered. 38 C.F.R. § 4.126(a); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Those listed in the rating formula are simply examples that justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002). It thus is not required that all, most, or even some of them be present. Id.; 38 C.F.R. § 4.21; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115-118 (Fed. Cir. 2013). 38 C.F.R. § 4.130 is unambiguous that the symptomatology for a 100 percent PTSD rating must amount to total occupational and total social impairment. Inclusion of the word "total" distinguishes the 100 percent rating requirements from all of the lesser rating requirements under § 4.130 and requires such a significantly disabling condition that no social relationships could exist. As such, absent a showing of a total, complete social impairment, a schedular rating of 100 percent for PTSD is not warranted; even a severe social impairment would not suffice, as a 70 percent rating contemplates the inability to establish and maintain effective relationships. Here, the record does not reflect that the Veteran's psychiatric symptomology has caused total social impairment during the appeal period. The evidence shows that the Veteran has continued to live with his wife, have a relationship with his daughter, and maintain employment as a VA police officer. These are all social outlets. The Board does not mean to imply that the Veteran is unaffected by his PTSD, quite the contrary. However, a 70 percent rating contemplates the inability to establish and maintain effective relationships. Here the Veteran has been able to maintain a few relationships and obtain employment. As such, his symptoms do not result in the total social and occupational impairment required for a rating in excess of 70 percent. Thus, a rating in excess of 70 percent for PTSD is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.