Citation Nr: 21076755 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-07 512 DATE: December 27, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT Throughout the appeal period, the symptoms and overall impairment caused by the Veteran's service-connected PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but have not at any time during the appeal period more nearly approximated total occupational and social impairment. CONCLUSION OF LAW Throughout the appeal period, the criteria for an initial disability rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, granted the claim of service connection for PTSD with an initial evaluation of 50 percent, effective June 30, 2011. The Veteran timely appealed the initial evaluation assigned. In the Veteran's February 2016 substantive appeal (VA Form 9), the Veteran limited his appeal to a claim for higher initial disability rating for PTSD. In June 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Veteran submitted a Privacy Act request in September 2021 that has yet to be fulfilled by the VA. However, given that the Board is granting the benefit sought in full, as discussed below, there is no prejudice to the Veteran in proceeding with adjudication of this claim. Entitlement to a higher initial disability rating for PTSD Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411, and is rated under the General Rating Formula for Mental Disorders. The Veteran's service-connected PTSD is evaluated at 50 percent from June 30, 2011, the date of the claim. As discussed further below, the Veteran is entitled to a uniform 70 percent initial disability rating for PTSD. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is warranted when there is 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. Under the General Rating 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 symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the 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. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). During a June 2011 private examination, the Veteran endorsed symptoms of insomnia, sleep deprivation, anxiety, anger, rage, isolation, hypervigilance, depression, and memory loss. During a June 2011 private psychological evaluation, the Veteran reported that he had a relationship with one of his three children, and that he experienced conflicts with individuals in the workplace that led to difficulties on the job. The private psychologist found that the Veteran had social and work-related functional impairment and significant cognitive difficulties in the form of problems with attention and concentration. In April 2012 during a VA PTSD examination, the Veteran reported that he saw and talked to his sister often, had good friends, rode his motorcycle, and painted. He described symptoms of withdrawal, isolation, anhedonia, depressed mood, low energy, poor sleep, poor attention and concentration, loss of appetite, feelings of hopelessness and worthlessness. The VA psychologist found that the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or worklike setting, and he experienced occupational and social impairment with reduced reliability and productivity. There was no suicidal or homicidal ideation, no panic attacks, no delusions, no auditory or visual hallucinations, and no symptoms of obsessive compulsiveness. During a June 2012 private psychological evaluation, the Veteran reported that he had a relationship with one of nine of his siblings and liked to ride his motorcycle. The VA psychologist noted that the Veteran endorsed intermittent impulsive homicidal ideation unaccompanied by specific means, plans, timeframe, or intent with a decline in social and occupational functioning. The Veteran denied suicidality and perceptual abnormalities consistent with psychosis. A VA treatment note from August 2012 noted that the Veteran endorsed suicidal ideation without plant or intent. During his June 2021 Board hearing, the Veteran endorsed thoughts of suicide throughout the appeal period. For the following reasons, the symptoms and impairment of the Veteran's PTSD more nearly approximate the criteria for an initial disability rating of 70 percent, but no higher. Throughout the appeal period, the Veteran endorsed symptoms of suicidal ideation, depressed mood, anger, isolation, anhedonia, low energy, poor attention and concentration, loss of appetite, feelings of hopelessness and worthlessness, memory loss, hypervigilance, anxiety, suspiciousness, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, and homicidal ideation unaccompanied by specific means, plans, timeframe, or intent. In addition, the evidence of record shows that, throughout the appeal period, the Veteran experienced occupational and social impairment with deficiencies in most areas. Based on the evidence of record, including the lay and medical evidence of record, the Veteran's symptoms and impairment throughout the appeal period more nearly approximated occupational and social impairment with deficiencies in most areas as required for an initial disability rating of 70 percent. This is the disability rating specifically requested by the Veteran in his February 2016 VA Form 9 and during his June 2021 Board hearing. As the Board is granting the disability rating specifically requested by the Veteran, further discussion of a higher rating is unnecessary. Furthermore, the Board notes that the Veteran's representative requested a new VA examination in the August 2019 Informal Hearing Presentation (IHP). However, as the Board is granting the benefit sought by the Veteran in full, there is no need to remand the claim for another VA examination. In any event, the Veteran is not entitled to a higher, 100 percent disability rating for the appeal period. The evidence of record did not show that the Veteran experienced symptoms such as grossly inappropriate behavior, his thought content did not appear obsessive, delusional, or impaired to reality, he did not experience memory loss for names of close relatives, own occupation, or own name, and he did not show an intermittent inability to perform activities of daily living, including maintenance of minimal hygiene. The Veteran has expressed thoughts of homicidal ideation, and that persistent danger of hurting oneself or others is a symptom listed in the criteria for a 100 percent disability rating. However, there is no evidence of record that the Veteran has been in persistent danger of hurting oneself or others or that the Veteran had any active intent or plan involving self-harm or harm to others during the appeal period. Thus, the severity, frequency, and duration of the Veteran's suicidal/homicidal ideation has not risen to the level contemplated by the 100 percent disability rating. Moreover, the evidence of record reflects that overall impairment did not more nearly approximate total occupational and social impairment. In this regard, the Veteran had relationships with his son, sister, and friends. This reflects that the impairment caused by the Veteran's symptoms did not more nearly approximate the total social impairment required for a 100 percent disability rating. In reaching the above conclusions, the Board is mindful that the symptoms listed in the rating schedule are essentially examples of the type and degree of symptoms indicative of the level of impairment required for each such rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). As explained above, the Board has found that that the evidence of record shows that the Veteran has manifested sufficient symptoms of the type and extent, frequency, or severity (as appropriate) to result in the occupational and social impairment with deficiencies in most areas required for an initial disability rating of 70 percent. 38 C.F.R. § 4.130. However, he did not show symptoms of the type and extent, frequency, or severity (as appropriate) to result in total social impairment required for the disability rating of 100 percent as he had some social interactions and relationships, reflecting that his overall level of impairment did not more nearly approximate total social impairment. Id. The evidence of record reflects that, for the entirety of the appeal period, the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate an initial disability rating of 70 percent, but no higher, for his service-connected PTSD. The evidence is neither evenly balanced nor approximately so with regard to whether an initial rating higher than 70 percent is warranted. Rather, the Board is persuaded that the evidence significantly and substantially weighs against an initial rating higher than 70 percent. Lynch v. McDonough, __ F.3d __, No. 2020-2067 (Fed. Cir. Dec. 17, 2021) (indicating that only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.