Citation Nr: 21008395 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 11-23 078 DATE: February 16, 2021 ORDER Entitlement to a disability rating in excess of 70 percent, for the period beginning April 9, 2015, for posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT During the period on appeal the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent, for the period beginning April 9, 2014, for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1989 to January 1990 and from September 1990 to July 1991. The case has been before the Board on multiple occasions. In a February 2017 decision, the granted and denied increased ratings for the Veteran’s PTSD for various portions of the appeal. The Board denied entitlement to an initial rating in excess of 30 percent from July 20, 2010, to October 7, 2014; granted a 70 percent rating from October 7, 2014, to April 9, 2015; denied a rating in excess of 30 percent from April 9, 2015, to July 21, 2015; and denied a rating in excess of 50 percent from July 21, 2015. The Veteran appealed the Board’s February 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2018 memorandum decision, the Court affirmed the Board’s February 2017 decision with respect to the determination of an initial 30 percent disability rating for PTSD for the period prior to October 7, 2014 and the grant of a 70 percent rating for the period from October 7, 2014, to April 9, 2015. The Court set aside the Board’s decision with respect to the denials of evaluations for the period from April 9, 2015. The Board then remanded the appeal, most recently in July 2020. The Board finds there has been substantial compliance with the remand directives and the Board will adjudicate the claim.  Stegall v. West, 11 Vet. App. 268 (1998). In a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 70 percent rating for PTSD, effective April 9, 2015. The claim before the Board is as noted above. Entitlement to a disability rating in excess of 70 percent, for the period beginning April 9, 2015, for PTSD. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is currently evaluated under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. 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). 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. When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The question before the Board is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. Review of the record shows that the Veteran was employed during the entire period on appeal since April 2015. In December 2019 the Veteran was noted to be on some light duties and not be interacting with the public. In April 2020 the Veteran reported that she was working from home. In addition, during the period on appeal the Veteran was noted to live with her two daughters. Statements of friends, family members, and co-workers report that the Veteran was withdrawn, never went out, needed to be accompanied when she goes places, had issues with anger, and had problems interacting with others, including at work. See Statements, December 2015. The statements also indicate that the Veteran hated being around family, only wanted to stay home, and that her friends tried to spend time with her but that she acted like she did not know them. Upon examination in December 2015, the examiner characterized the Veteran’s level of impairment related to PTSD as occupational and social impairment with reduced reliability and productivity. The Veteran was noted to be limited in social activities and leisure pursuits. However, she was reported to be employed full time. She was noted to have mild memory loss. She was found to be moderately impaired in her social and occupational functioning due to PTSD. Upon examination in September 2019 the examiner characterized the related impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran was currently employed had been working for the same employer for about 12 years. She reported that she was not currently in treatment for her PTSD but spoke with a provider by telephone every three months. There was no memory loss for names of close relatives, own occupation, or own name; gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting herself or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; or disorientation to time or place. A questionnaire regarding unemployability was completed in September 2019 by a psychologist who identified the Veteran’s difficulties as a result of her service-connected PTSD. The Veteran had difficulty attending to or is easily distracted from the task at hand; had difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task; had intrusive thoughts which interfere with the ability to stay focused on the task at hand, and; had significant difficulty functioning around other people, and had difficulty functioning as a team member, and felt uncomfortable around others. The examiner also noted that the Veteran’s sleep was so disrupted that she was usually fatigued at work, making concentration and focus on work assignments difficult. Finally, the Veteran was having a difficult time adjusting to being diagnosed with breast cancer. On the contemporaneous examination, the psychologist characterized the impairment related to the service-connected PTSD as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Upon examination in July 2020 the Veteran’s impairment was characterized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. She was widowed since her last evaluation. She reported that her children stayed with her and that she could not stay by herself. She had a friend with whom she spoke once or twice a week. She had two other friends with whom she spoke every other month. She left the house for doctor’s appointments. She was employed full time and had been working for the same employer for 13 years. She had absences due to feeling overwhelmed at work. The Veteran did not have memory loss for names of close relatives, own occupation, or own name, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, or disorientation to time or place. In an opinion provided in July 2020 the examiner identified reported a reported altercations and confrontations at work and ritualistic behaviors. The examiner stated that the Veteran’s impairment was best characterized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Board finds that the Veteran’s symptoms do not more nearly approximate the criteria for an evaluation of 100 percent at any time during the period on appeal. The Veteran’s symptoms do not manifest total occupational and total social impairment. Although there are reports of problems at work, at no time during the period on appeal was the Veteran unemployed. In addition, during the period on appeal the Veteran lived with her daughters and reported friends with whom she communicated. It is acknowledged that the Veteran reported at a VA examination in July 2020 that her children stayed with her and that she could not stay by herself. However, the examiner did not find neglect of personal appearance and hygiene, or intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In addition, VA examiners who evaluated the Veteran during the period on appeal have characterized the level of impairment most nearly as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Finally, no VA examiner identified memory loss for names of close relatives, own occupation, or own name; gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; or disorientation to time or place. There is no evidence that the Veteran’s PTSD results in an inability to function mentally and behaviorally on a daily basis or is productive of a danger of physical harm to herself or others. There is no evidence of gross impairment of her cognitive functions or behavior. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. As the criteria for a 100 percent or higher rating are not met and the appeal must be denied. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.