Citation Nr: 21010871 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-35 297A DATE: February 25, 2021 ORDER Entitlement to an increased rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted for the period on appeal. FINDING OF FACT For the period on appeal, the Veteran’s PTSD meets, or more nearly approximates, social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an evaluation of 70 percent, but no higher, for PTSD for the period on appeal have been met. 38 U.S.C. § 1155; 38 U.S.C. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2004 to May 2008. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an evaluation of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) The Veteran was granted service connection for his PTSD in a September 2009 rating decision with an evaluation of 30 percent effective May 3, 2008. Subsequently, the Veteran’s PTSD evaluation was increased to 50 percent in an April 2012 rating decision, effective November 30, 2011. The September 2009 and April 2012 rating decisions became final. In the July 2013 rating decision on appeal, the Veteran was assigned a temporary total evaluation of 100 percent for hospitalization from June 26, 2012, to October 1, 2012, and a 50 percent disability rating was assigned from October 1, 2012, forward. As such, the appeal of the increased disability rating for the service-connected PTSD will not include the period from June 26, 2012, to October 1, 2012, because the Veteran is already in receipt of a 100 percent rating for that period. See also AB v. Brown, 6 Vet. App. 35 (1993) (a veteran will generally be presumed to be seeking the highest rating available, and it follows that a partial grant of an increased rating does not terminate an appeal). PTSD is evaluated under Diagnostic Code 9411. A 50 percent rating is warranted 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- 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. A 70 percent disability rating is assigned 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 maximum 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. The symptoms listed are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA treatment records show that the Veteran receives regular treatment for PTSD symptoms and has expressed thoughts of suicide, self-harm, and irritability on several occasions throughout the period on appeal. The Veteran is consistently described as alert and oriented to person, place, and time with logical and linear thoughts. Private treatment records show that the Veteran experiences sleep disturbances, nightmares, interpersonal difficulties, recurrent intrusive thoughts of trauma, trouble concentrating, readjustment issues, increased frustration and irritability, avoidance and numbing. During the relevant period on appeal, the Veteran received VA examinations regarding the severity of his service-connected PTSD in August 2014 and November 2019. In the August 2014 examination, the Veteran was noted to experience the following symptoms: recurrent, involuntary, and intrusive distressing memories; recurrent distressing dreams; marked physiological reaction to internal or external cues; avoidance of distressing memories, thoughts or feelings; avoidance of or efforts to avoid external reminds; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent, distorted cognitions about the cause or consequences of the traumatic event(s); persistent negative emotional state; markedly diminished interest or participation in significant activities; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbances; depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood. The Board observes that this examiner also discussed the Veteran’s service-connected traumatic brain injury (TBI) in this opinion, but stated that “neuropsychological testing in 2012 found minimal evidence of cognitive impairment attributable to TBI, concluding that any subjective memory problems were attributable to emotional issues/PTSD.” In the November 2019 examination, the examiner found that the Veteran exhibited the following symptoms: recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s); dissociative reactions (flashbacks); intense or prolonged psychological distress at exposure to internal or external cues; marked physiological reactions to internal and external cues; avoidance of or efforts to avoid distressing memories, thoughts, or feelings closely associated with traumatic events; avoidance of or efforts to avoid external reminders; Persistent, distorted cognitions about the cause or consequences of the traumatic event(s); persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outbursts typically expressed as verbal or physical aggression toward people or objects; reckless or self-destructive behavior; hyper-vigilance; exaggerated startle response; problems with concentration; sleep disturbance; depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or a work like setting. During the examination, the Veteran indicated he has periods of low motivation, rated work stress as a 6 or 7 on a scale of 1 to 10, and reported being easily frustrated, and feeling somewhat helpless and depressed. Based on a review of the record, the Veteran’s symptoms can be summarized as: recurrent, involuntary and intrusive distressing memories; recurrent distressing dreams in which the content and/or affect of the dreams are related to the traumatic event(s); avoidance of distressing memories; and avoidance of external reminders. The Veteran was noted to have persistent and exaggerated beliefs or expectations about himself, others, or the world, and a persistent negative emotional state with markedly diminished interest or participation in significant activities. The Veteran exhibits irritable behavior and angry outbursts with little or no provocation expressed as verbal or physical aggression toward people or objects, hypervigilance, exaggerated startle response, and sleep disturbances. He also was noted to experience depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, as well as suicidal ideation and thoughts of self-harm. The evidence of record does not show that the Veteran has experienced symptoms the same or nearly approximating gross impairment of 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, his own occupation, or his own name. Accordingly, the Board finds that a rating of 100 percent for PTSD is not warranted. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Based on a comprehensive review of the evidence, the Board finds that the Veteran’s service-connected PTSD most nearly approximates social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as illustrated by the symptomatology detailed above. This level of impairment warrants a 70 percent rating according to Diagnostic Code 9411 for the entire period on appeal. 38 C.F.R. §§ 4.3. L.M. YASUI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.