Citation Nr: 21076147 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 20-11 980 DATE: December 22, 2021 ORDER An initial rating of 70 percent for dysthymic disorder with posttraumatic stress disorder (PTSD) prior to February 19, 2019 is granted. FINDING OF FACT For the period prior to February 19, 2019, the severity, frequency, and duration of the Veteran's symptoms of her dysthymic disorder with PTSD manifested by symptoms resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, for the entire appeal period; total social and occupational impairment has not been demonstrated. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for her dysthymic disorder with PTSD, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9433. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1998 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board denied a rating in excess of 50 percent for dysthymic disorder with PTSD prior to February 19, 2019. The Veteran appealed the 2020 Board decision to the Court of Appeals for Veterans Claims (Court) and in August 2021 the Court granted a Joint Motion for Partial Remand (JMPR) vacating and remanding the 2020 decision. The issue has now returned to the Board in accordance with the terms of the JMPR. The Board will now re-examine the issue in light of the points of the JMPR. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). An initial rating of 70 percent for dysthymic disorder with posttraumatic stress disorder (PTSD) prior to February 19, 2019 The Veteran seeks an initial rating in excess of 50 percent prior to February 19, 2019 for her dysthymic disorder with PTSD. During this period, the disorder is rated under DC 9433. 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). In pertinent part, 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. Turning to the evidence of record, the Veteran underwent a VA examination in August 2017. She indicated that she lived with her husband of ten years with whom she currently owned a trucking company. She earned a bachelor's degree and was considering a master's degree. She reported markedly diminished interest in most activities, decreased appetite, insomnia, fatigue, and a depressed mood most days. The examiner found that her symptoms manifested in occupational and social impairment with reduced reliability and productivity. Documented symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Upon examination, she had an appropriate affect, good concentration, appropriate thought content, and was oriented to person, place, and time. VA treatment records during the appeal period show that the Veteran received regular mental health treatment. She reported interpersonal difficulties with various family members including her husband, father, brother, and aunt. Despite that, she maintained close relationships and described her marriage as a healthy relationship. Throughout the period, her affect was found to be in a normal range, she was appropriately dressed and groomed, her thought processes were logical and linear, and her memory was intact. She completed a master's degree in Business Administration and continued working at her trucking company while also interviewing for jobs. Her answers regarding how often she experienced irritable behavior, angry outbursts, or acting aggressively ranged from moderate to extremely. In January 2018, it was noted that the duration, frequency, and intensity of her anger had decreased, and the Veteran was proud of the progress she made and felt capable of managing her stress. During two depression screenings in 2019, the Veteran answered that there were several days when she had thoughts that she would be better off dead or of hurting herself in some way. In January 2019, she also conveyed that she had let her father know that she had a suicidal thought. After review of the competent and probative evidence including the VA examination, VA treatment records, and lay statements, the Board finds that an initial rating of 70 percent for the period prior to February 19, 2019, is warranted. Significantly, the evidence shows that she had difficulty in adapting to stressful circumstances, suicidal ideation, was irritable, and had bouts of anger. Viewed as a whole, the Board finds that the frequency and severity of such symptoms more nearly approximate social and occupational impairment with deficiencies in most areas, such as judgment, thinking, or mood. The Board further finds that a higher rating of 100 percent is not warranted as the competent evidence does not tend to reflect total social and occupational impairment. See Total, Merriam-Webster, https://www.merriam-webster.com/dictionary/total (defining the adjective "total" as, among other entries, absolute). In this regard, for example, she did not have persistent delusions or hallucinations. The Board acknowledges the report of passive suicidal ideation during treatment in 2019, but finds that when evaluating the period on appeal as a whole, the Veteran regularly denied suicidal ideation during the examination and other treatment records that encompassed numerous mental health visits. She also reported difficulties with her husband, father, brother, and aunt, but the Board finds this indicative of a deficiency in most areas such as family relations. While she also experienced irritability and anger, this did not rise to the level of persistent danger to others. Regarding occupational impairment, while she had symptoms of disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, she owned and worked at a trucking company. She also successfully completed a master's program. Based on the foregoing, a 100 percent rating is not warranted. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list but are examples of the type and severity of symptoms that indicate a certain level of disability. After examining the Veteran's displayed symptoms of her dysthymic disorder with PTSD, however, the Board concludes that the Veteran's symptomatology more nearly approximates the criteria for a rating of 70 percent, but no higher, for the period prior to February 19, 2019. Garrett Morales Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cruz, K. 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.