Citation Nr: 21073476 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-42 601A DATE: December 8, 2021 ORDER Entitlement to an initial disability rating of 70 percent for posttraumatic stress disorder with depression (PTSD) is granted. FINDING OF FACT The Veteran's posttraumatic stress disorder with depression (PTSD) is manifested by at most occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating disability of 70 percent for posttraumatic stress disorder with depression (PTSD) have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to April 1974. The matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has separately appealed other issues to the Board via a VA Form 10182, including the effective date of the grant of individual unemployability. The Board notes that it cannot review these claims, as these issues have been appealed through the process in the Appeals Modernization Act (AMA). The Board notes that the issue currently before it is a Legacy appeal. 1. Entitlement to an initial disability rating of 70 percent for posttraumatic stress disorder with depression (PTSD) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3. The Veteran's posttraumatic stress disorder with depression (hereafter called "PTSD") has an initial evaluation of 50 percent disabling under Diagnostic Code 9411, effective May 17, 2017. The Veteran has challenged this initial evaluation. Diagnostic Code 9411 pertains specifically to the primary diagnosed disability in the Veteran's case (PTSD). In any event, with the exception of eating disorders, all mental disorders including PTSD are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. The criteria for a 50 percent rating are as follows: 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; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are as follows: 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); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: 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 "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013) the Federal Circuit stated that 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. It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Veteran's wife in November 2018 submitted a statement in support of the Veteran's claim. She noted that the Veteran suffered from memory loss, worsening communication skills, depression and isolation. The Veteran's wife also noted that his relationships with others had significantly deteriorated. The Veteran underwent a VA PTSD examination in October 2017. The VA examiner observed symptoms of depressed mood, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairments, mild memory loss, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA examiner also found that the Veteran had "occupational and social impairment with reduced reliability and productivity." The Veteran received a second VA examination in March 2019. The examiner found that the Veteran had "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood." The Veteran described his marriage and family life as wonderful. The examiner associated the following symptoms with the Veteran's diagnosis: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, 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, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA examiner also noted that the Veteran "is struggling with increased symptoms of PTSD and Depression (part of his PTSD) [...] He is anxious and irritable at times and struggles with memory and focus. He has interruptive dreams and memories from the Navy stressors of long ago. He is on medication but is still with residual symptoms and socially isolated and withdrawn. Occupational and [e]mployment activities have not been realistic for him in the last decade." In an April 2019 treatment record, the Veteran reported enjoying spending time with his children and grandchildren but reported concentration and memory problems. He felt worthless since his family did not ask for advice or assistance from him. The Veteran reported auditory hallucinations but denied suicidal ideation and homicidal ideation. See CAPRI, received April 23, 2019. In an April 2020 treatment record, the Veteran reported that his overall medical condition was improving. He endorsed a euthymic mood and good sleep, appetite and energy. He denied homicidal ideation and suicidal ideation but did mention that he had auditory hallucinations during the night. The Veteran mentioned that his auditory hallucinations were manageable. See CAPRI, received May 20, 2020. The Board has also reviewed additional VA treatment records, which reveal symptoms and manifestations consistent with the VA examinations. The Board finds that the evidence is in favor of an evaluation of 70 percent. The medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation, but it does not demonstrate total social or occupational impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board has considered the VA treatment records, including the VA examination report and lay statements regarding the impact of the Veteran's PTSD on his occupational and social impairment. In particular, the Board notes the Veteran's auditory hallucinations, difficulties with sleep, faulty memory, depressed mood, and disturbances of mood and motivation. Notably, there is no evidence that the Veteran's psychiatric manifestations have resulted in symptoms such as a inability to establish and maintain effective relationships during this period. Although there is an indication that the Veteran had a difficulty establishing and maintaining effective work and social relationships, there is no indication that this amounted to an inability to have social relationships consistent with a 100 percent evaluation. As a result, to the degree that the Veteran experiences social impairment as a result of his PTSD, it is accounted for by a 70 percent evaluation. Furthermore, the Board notes that the Veteran did not exhibit symptoms such as suicidal ideation, homicidal ideation, and spatial disorientation, which would be consistent with a 100 percent evaluation. There is also not evidence of total occupational impairment due to his PTSD during this period. Furthermore, the objective medical conclusion of the examiners during this period, with respect to the severity of the Veteran's occupational and social impairment, while not determinative, are not consistent with total occupational and social impairment. Both the October 2017 and March 2019 examiners, while indicating that the Veteran had some level of occupational and social impairment, did not indicate that it was total occupational and social impairment. The Board notes that the March 2019 examiner found that the Veteran had "occupational and social impairment with deficiencies in most areas." The Board finds that the majority of the medical evidence, including prior to and after the March 2019 examination, demonstrates that the Veteran's level of occupational and social impairment more closely falls under this category than the finding from the October 2017 examiner's finding of "occupational and social impairment with reduced reliability and productivity." Thus, the Board finds that the Veteran had occupational and social impairment with occupational and social impairment with deficiencies in most areas, but did not have total occupational and social impairment. He does have deficiencies, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the newly assigned 70 percent rating. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the currently assigned 70 percent schedular rating. To the extent that the Veteran has any of the criteria for a 100 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 70 percent rating. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.