Citation Nr: 21010031 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-25 264A DATE: February 23, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) from December 4, 2010, to August 7, 2017, is granted. FINDING OF FACT The functional impairment resulting from the Veteran's service-connected PTSD, from December 4, 2010, to August 7, 2017, has more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, primarily due to such symptoms as suicidal ideation, inability to establish and maintain effective relationships, and impaired impulse control, but the preponderance of evidence is against a finding that the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders, or others of similar severity, frequency, and duration, or experienced total occupational and social impairment at any point in the appeal period. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) from December 4, 2010, to August 7, 2017, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from July 2000 to December 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2010 rating decision, the RO granted service connection for hypersomnia and assigned a 10 percent rating. The Veteran timely appealed and in a December 2016 rating decision, the RO recharacterized the veteran’s disability as hypersomnolence and assigned a 30 percent rating, effective December 4, 2010. In a September 2017 rating decision, the RO recharacterized the Veteran’s hypersomnolence, previously hypersomnia, as PTSD and assigned a 70 percent rating, effective August 8, 2017 and maintained the 30 percent rating prior to August 8, 2017. The Veteran appealed the matter to the Board. In October 2018, the Board granted an initial rating of 50 percent for PTSD from December 4, 2010 to August 8, 2017. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating the Board’s decision on the claim, and remanding it to the Board for action consistent with the terms of the JMPR. In December 2019, the Board denied a rating in excess of 50 percent for PTSD from December 4, 2010, to August 8, 2017. The Veteran appealed the decision to the Court, where the parties filed a JMPR. In October 2020, the Court granted the JMPR, vacating the portion of the Board decision denying an initial rating in excess of 50 percent from December 4, 2010, to August 8, 2017, and remanding the case for further action consistent with the October 2020 JMPR In the October 2020 JMPR, the Court found the Board did not comply with the Court’s August 2018 JMPR. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Court or the Board “confers on the veteran . . ., as a matter of law, the right to compliance with the remand orders,” and the Board errs when it fails to ensure compliance with the terms of such a remand.) Specifically, the Court found the Board did not address favorable evidence noted in the September 2017 VA examination report that related to symptoms the Veteran experienced from December 4, 2010 to August 7, 2017. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination considering the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment based on lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9410, according to the General Rating Formula for Mental Disorders. The Veteran's PTSD is evaluated as 50 percent disabling from August 17, 2010. Under the General Rating Formula, a 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is justified 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); and inability to establish and maintain effective relationship. Id. A 100 percent disability rating is reserved 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the claimant's symptoms, but it must also make findings as to how those symptoms impact the claimant's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the claimant's impairment must be "due to" those symptoms; therefore, a claimant may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. The Veteran contends his PTSD symptoms more closely approximate those symptoms listed in the 70 percent rating criteria. In a September 2017 VA examination report, the examiner reported the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas, to include work, school, family relations, judgment, thinking and/or mood. In the previous year, the Veteran reported he had moved around and lived in a different location than his family and his communication with them was by phone only. The Veteran further reported that over the past year he had very little interest in communicating with family members, tended to keep his conversations brief and not in-depth, and otherwise felt a sense of disconnect when communicating with them. The examiner noted the Veteran reported experiencing a high level of impairment in his relationships with family members because of his PTSD. The Veteran reported that he has not dated anyone nor had any interest in being in any dating relationships. Furthermore, the Veteran reported that he has received very few invitations to attend social gatherings and has a very low interest in developing and maintaining friendships. The Veteran reported that he prefers to be alone, in his room, and feels most secure there. The Veteran reported he has not initiated any social outings with any friend and has declined and made excuses to his friends in order to avoid social gatherings and outings. Furthermore, he reported he experienced a low level of trust in others. He further reported he experiences discomfort in large crowds and avoids them; feels very distressed when he hears loud noises and avoids situations where loud noises might be present; and has experienced irritability and impatience when interacting with others. He reports that he avoids interacting with other people in these situations because his irritability and impatience might lead to a verbal or physical altercation. The examiner noted the Veteran experiences high levels of social impairment associated with his PTSD. The Veteran reported over the previous year he was not enrolled in any college nor vocational courses; however, he was enrolled in college courses about two and a half years prior. The Veteran reported that he failed two or three of the courses because he had trouble concentrating and had to re-read information, which caused him to take longer than allowed to complete assignments. The Veteran further reported that he was absent from class; did not participate in class; had difficulty concentrating in class; and often submitted work late, if at all. He also reported that the work he did submit was often incomplete. The examiner noted the Veteran experienced a high level of impairment in academic functioning because of his PTSD. Moreover, the examiner reported the Veteran’s irritability and anxiety when interacting with others would make it difficult for him to work closely with co-workers or to communicate directly with customers on a regular basis. The examiner further noted the Veteran's problems with concentration would make any job that requires sustained attention very difficult. Moreover, the examiner noted the Veteran would likely experience difficulty completing repetitive job tasks, attempting to meet strict work deadlines, completing tasks that are detailed in nature, completing multiple tasks in short periods of time and tasks that require him to communicate with others regularly because of his PTSD. The examiner further noted the Veteran’s hypervigilance and anxiety caused by large groups would interfere with his ability to work in settings where he would be exposed to large numbers of people. The examiner noted the Veteran has not been employed since leaving active duty, but if he were, he would display high levels of occupational impairment because of his PTSD. The Veteran reported experiencing recurrent distressing dreams; hypervigilance, including feeling on guard; always being aware of who is around him; and an exaggerated startle response that he described as “anxiety cutting through his entire body.” The Veteran reported that he responds to these situations by drawing himself inward in a protective manner. The Veteran reported he experiences sleep disturbances, to include nightmares. He awakens from his dreams in fear and it takes him several minutes to return to sleep. He reported that he experienced a reduction in appetite and intrusive thoughts. He reported he had thoughts of taking his own life. The Veteran reported that he displayed aggression toward objects in the form of breaking furniture, drinking glasses, and lightbulbs. The Veteran’s July 2017 post-service treatment records indicate he has had difficulties adjusting to life; feels a lack of purpose; and is unable to bring himself to become interested in anything. He reported that he attempted to go back to school but found it difficult to keep up with course work and concentrate. He reported that he has difficulties finding people that he is comfortable with and that his family has difficulty understanding his past and he therefore feels isolated. He further reported that he feels nervous or anxious, cannot stop worrying, has difficulty relaxing, feels restless, becomes easily annoyed or irritable and is afraid something terrible is going to happen The Veteran’s May 2017 post-service treatment records indicate he exhibits symptoms including disturbing dreams, re-experiencing events, cued distress, cued physical symptoms, avoiding internal reminders, avoiding external reminders, negative beliefs, loss of interest, negative feelings, feeling distant from others, feeling numb, feeling irritable, reckless behaviour, being “super alert,” and being easily startled. Furthermore, the Veteran reported that he experienced suicidal ideations over a year ago. He reported there were times he thought his life was not worth living and times he wished he were dead. The Veteran also reported decreased energy, decreased concentration, and increased food intake in the previous four years. Moreover, he reported his mood is down more often than not and he does not have interests or hobbies. Based on a review of the record, the Board finds an initial 70 percent rating for PTSD is warranted prior to August 8, 2017. For this time period, the Veteran has exhibited symptoms specifically contemplated by the 70 percent rating criteria, to include suicidal ideation, unprovoked irritability, difficulty adapting to stressful circumstances, and the inability to establish and maintain effective relationships. These symptoms, in conjunction with the Veteran's other symptoms, have had a significant impact on his occupational and social functioning, work, family relations, judgment, thinking, and mood, to the extent that the Board finds the Veteran's impairment approximates occupational and social impairment with deficiencies in most areas. (Continued on the next page)   The Board finds, however, that the preponderance of evidence is against a finding that the Veteran has manifest the particular symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders or others of similar severity, frequency, and duration, or experienced total occupational and social impairment at any point from December 4, 2010 to August 7, 2017. Although the Veteran reported auditory hallucinations and delusion in May 2017, there is no evidence that these symptoms are persistent and result in total occupational and social impairment. Otherwise, there is no evidence that suggests the Veteran has manifest the symptoms associated with the 100 percent rating criteria under the General Rating Formula for Mental Disorders or other symptoms of similar severity. In fact, the Veteran's reported symptoms are specifically listed in the criteria for ratings at or below 70 percent. Although the Veteran's PTSD has severely affected his social functioning, he has been able to maintain some relationships with family members. Additionally, he does not exhibit inappropriate behavior, or gross impairment in thought processes and is always observed to be oriented to person, place and time. Although he has voiced suicidal ideations, he has never been deemed by clinical professionals to be a danger to himself or others. Thus, the weight of the evidence is against a finding that the Veteran experiences total occupational and social impairment; therefore, a rating in excess of 70 percent is not warranted at any point in the appeal period from December 4, 2010 to September 7, 2017. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.