Citation Nr: A21020208 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191021-38930 DATE: December 17, 2021 ORDER Entitlement to a 70 percent disability rating, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted, effective July 12, 2019, through November 5, 2020, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Effective July 12, 2019, through November 5, 2020, the Veteran's service-connected PTSD most closely approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Effective July 12, 2019, through November 5, 2020, the criteria for a 70 percent disability rating for service-connected PTSD, but no higher, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2008 to October 2012. This matter comes before the Board of Veterans' Appeals (Board) from a September 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), on a Direct Review under the Appeals Modernization Act (AMA). In September 2019, the Board issued a decision that denied entitlement to a rating in excess of 50 percent for PTSD. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2021 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the September 2019 decision for compliance with the instructions in the JMR. The Board notes that in a December 2020 rating decision, the RO granted an increased 100 percent rating for the Veteran's PTSD, effective November 6, 2020, creating a staged rating. Increased Ratings Service connection for PTSD was established in a February 2018 rating decision and assigned an initial disability rating of 50 percent, effective June 27, 2017. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran initiated the present claim for an increased rating in July 2019, and the September 2019 rating decision that is the subject of this appeal continued the 50 percent disability rating. As noted above, in December 2020, the RO increased the disability rating to 100 percent, effective November 6, 2020. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 50 percent rating is assigned for 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-term 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned for 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); inability to establish and maintain effective relationships. Id. A maximum 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 behaviour; 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. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's PTSD and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and 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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. Upon review of the record, the Board finds that the Veteran's PTSD more nearly approximates the criteria for a 70 percent rating from July 12, 2019, through November 5, 2020. The Veteran underwent a VA examination in August 2019 VA examination, and the examiner concluded that the symptoms associated with his service-connected PTSD resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The examiner noted that the Veteran was married with three children, but he stated that his problems put a lot of pressure on his wife. The Veteran was currently employed, but he had trouble adjusting to his job, and he rarely associated with his coworkers. Although he tried to go back to school, he indicated that it was too much stress trying to care for his family and go to school. Upon examination, the examiner noted the presence of the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; flattened affect; intermittently illogical, obscure or irrelevant speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances; suicidal ideation; impaired impulse control; grossly inappropriate behavior; and intermittently inability to perform activities of daily living. The examiner noted that the Veteran was casually dressed, he was goal directed, his memory was intact and thought process logical, his mood was angry and affect congruent, and he was emotional. The examiner also noted that the Veteran did not experience hallucinations, delusions, obsessions, compulsions, or psychoses, and suicidal ideation was reported but without intent or plan. A review of the Veteran's treatment records do not show symptoms more severe than those noted during the VA examinations. After considering the record before it and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's PTSD more nearly approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood from August 1, 2019 to November 5, 2020. In this regard, the evidence establishes that the Veteran experienced panic attacks more than once a week, suicidal thoughts, intermittently illogical, obscure or irrelevant speech, difficulty in adapting to stressful circumstances, impaired impulse control, grossly inappropriate behavior, and intermittently inability to perform activities of daily living. Therefore, the Board finds that the Veteran is entitled to a 70 percent rating for PTSD beginning July 12, 2019. However, a rating in excess of 70 percent is not warranted from July 12, 2019 to November 6, 2020, as the Veteran's symptoms do not result in total occupational and social impairment. The Board acknowledges that the August 2019 VA examiner indicated the Veteran experienced grossly inappropriate behavior and intermittently inability to perform activities of daily living; however, the most probative medical evidence of record does not support a finding that the Veteran's symptoms result in total impairment. Ultimately, it is the impact on functioning that results from the symptomatology that dictates the evaluation to be assigned. See Vazquez-Claudio, 713 F.3d at 118 ("[38 U.S.C.] § 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"). Indeed, despite the troubles caused by his symptoms, the Veteran was able to maintain employment during the appeal period. Furthermore, despite the difficulties imposed on his relationship with his wife, the Veteran was still able to maintain the relationship. Thus, despite experiencing some of the symptoms listed in the 100 rating criteria, overall total occupational and social impairment has not been demonstrated by the evidence of record from July 12, 2019 to November 6, 2020. In sum, the preponderance of the evidence supports a 70 percent rating, but no higher, for PTSD from July 12, 2019 to November 5, 2020. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.