Citation Nr: 21005725 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-22 043 DATE: February 2, 2021 ORDER A rating in excess of 50 percent for PTSD prior to October 18, 2016, is denied. FINDING OF FACT Prior to October 18, 2016, the Veteran’s PTSD has been productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD prior to October 18, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States from October 1967 to May 1971. The Veteran and his friend presented sworn testimony at a hearing before the undersigned in June 2015. In a July 2016 decision, the Board granted an increased rating for PTSD from 30 percent to 50 percent for the entire appeal period and remanded entitlement to a rating in excess of 50 percent for PTSD. In an April 2017 rating decision, the RO granted an increase from 50 percent disabling to 100 percent disabling, effective October 18, 2016. In a June 2018 Board decision, the Board remanded the issue of entitlement to a rating in excess of 50 percent for PTSD prior to October 18, 2016 for additional development. Additionally, at the June 2015 Board hearing, the Veteran testified that he was not working due to his non-service-connected back condition. Therefore, the issue of entitlement to a TDIU is not before the Board. See June 2015 Hr’g Tr. at 21. Entitlement to a rating in excess of 50 percent for PTSD prior to October 18, 2016. The Veteran seeks a rating in excess of 50 percent for his service-connected PTSD prior to October 18, 2016. The Veteran’s PTSD is rated at 50 percent from September 16, 2010 to October 18, 2016 and 100 percent disabling thereafter. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is prescribed 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is prescribed 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of 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. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. The Board finds that the medical evidence, combined with the Veteran’s subjective reports of his symptoms, indicates that the severity of his PTSD warrants no more than a 50 percent rating for the period prior to October 18, 2016. The Veteran was afforded a VA examination in October 2010. The examiner summarized the Veteran’s impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation. Additionally, the Veteran’s symptoms included: depressed mood, anxiety, panic attacks weekly or less often and mild memory loss such as forgetting names, directions or recent events. The examiner noted the Veteran had no difficulty understanding commands and required psychotherapy to manage his deep grief. The VA examiner did not demonstrate suicidal or homicidal ideation. The Veteran reported getting agitated in any medical situation, feelings of estrangement, decreased loving feelings, sleep problems, irritability, decreased concentration, hypervigilance and increased startle response. The symptoms were noted to be severe, constant, continuous or ongoing. The Veteran reported his symptoms affect his total daily functioning which results in fear of medical settings, and difficulty with relationships because of irritability and other symptoms. Additionally, he reported he has had trouble sleeping for 40 years. At the October 2011 VA examination, the examiner summarized the Veteran’s impairment as occupational and social impairment with occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran’s symptoms included: anxiety; suspiciousness and mild memory loss, such as forgetting names. The Veteran reported that his symptoms affect his total daily functioning which results in fear of medical settings, and difficulty with relationships because of irritability and other symptoms. He reported he has had trouble sleeping for 40 years. He reported that he had been having difficulty with irritability and anger for approximately 10 years. The Veteran had no apparent disturbance in thought content and no indication, delusions, obsessions, dissociation or suicidal or homicidal intent. See November 2011 PTSD Examination. The Board has considered the Veteran’s symptoms and finds that given the totality of the Veteran’s symptoms, the Board finds that the preponderance of the evidence shows that Veteran’s PTSD warrants a continuation of the 50 percent rating, but not greater. The Board finds that the preponderance of the evidence shows that prior to October 18, 2016, the Veteran’s PTSD does not warrant a 70 percent rating, as his PTSD is not productive of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Prior to October 18, 2016, the Veteran did not demonstrate inappropriate behavior, no obsessive/ritualistic behavior, no panic attacks, and he was oriented in person, place, and time. His judgment was fair to good. The Board notes, that while the Veteran reported a history of suicidal ideation at his June 2015 Board hearing, he denied any history of suicide attempt or any recent suicidal thoughts at his VA examinations or in his medical records prior to October 18, 2016. See October 2010 PTSD Examination; November 20111 PTSD DBQ; see also February 2009 through August 2020 Medical Records. Additionally, the evidence does not show that prior to October 18, 2016, the Veteran has exhibited total occupational and social impairment for the relevant portion of the appeal period. In this regard, there is no evidence that the Veteran experienced 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 evidence above does not indicate that during the appeal period, the Veteran had significant impairment. The evidence shows that prior to October 18, 2016, the Veteran retained the ability to complete social and occupational tasks beyond that contemplated by a 100 percent schedular rating. Therefore, prior to October 18, 2016, the Veteran’s symptoms did not manifest to the degree required for a 100 percent rating as the competent and credible medical evidence of record does not indicate total occupational and social impairment. Thus, prior to October 18, 2016, a rating in excess of 50 percent for PTSD is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, 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.