Citation Nr: 21011386 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-38 999 DATE: March 1, 2021 ORDER A 70 percent rating, but no higher, as of October 23, 2015, but no earlier, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT As of October 23, 2015, the Veteran’s PTSD caused occupational and social impairment, with deficiencies in most areas, such as work, school, and family relations. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD as of October 23, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3,321, 4.1-4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to July 1996. A May 2020 rating decision increased the Veteran’s PTSD rating to 70 percent as of a March 18, 2019, VA examination. As this does not constitute a full grant, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). In August 2018 and August 2020 the Board remanded this matter. The Board’s August 2020 remand sought additional VA medical records. These records, however, were not found or able to be associated with the record. See October 2020 CAPRI response. While these missing records impose a heightened duty on the Board to explain its findings and conclusions, to consider carefully the benefit-of-the-doubt rule, and to assist the Veteran with the development of evidence in support of his claim, the threshold for allowance of a claim is not lowered. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. PTSD The Veteran was assigned a 30 percent rating as of his August 10, 2012, grant of service connection and a 70 percent as of March 18, 2019. The Veteran’s PTSD is rated pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. The Veteran has stated his PTSD is more severe than reflected in his current ratings. Pursuant to the General Rating Formula, a 50 percent disability 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent disability 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 in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. After review of the record, the Board finds that the Veteran’s PTSD warrants a 70 percent rating as of VA’s receipt of his October 23, 2015, Form 9. In that document, the Veteran stated that his PTSD caused the following symptoms: impairment of his short and long term memory, forgetting to complete tasks, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, near-continuous panic or depression, unprovoked irritability, neglect of personal hygiene, difficulty in adapting to stressful circumstances, and an inability to establish an maintain effective relationships. These symptoms were also endorsed in the Veteran’s 2019 VA examination. In this instance, there are no medical records concurrent with the Veteran’s October 2015 Form 9 which provide any additional information regarding his PTSD symptomology or the severity of his endorsed symptoms. Importantly, there are no records of evidence which contradict the Veteran’s report of observable PTSD symptoms or provide a basis to question his credibility in reporting his PTSD symptoms. Resolving all reasonable doubt in favor of the Veteran, the Board finds that he meets the criteria for a 70 percent rating for his PTSD as of his October 23, 2015, Form 9 submission. Prior to October 23, 2015, the Veteran had not endorsed such severity of symptomology and there are no records which show that such symptoms were associated with his PTSD. His August 2013 VA examination noted symptoms of irritability, difficulty concentrating, hyper-vigilance, exaggerated startle response, depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran’s statements also did not reflect a severity of symptomology associated with a rating higher than 30 percent prior to his October 2015 Form 9 submission. His October 2013 statement reported having dreams/nightmares about his in-service stressors and panic attacks when something is covering his face. His October 2014 statement reported he had become more irritable, had anger frequently toward his family, had increased level of depression, found it hard to work or be productive, and could not sleep well. These statements did not show that the Veteran had or endorsed 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, impaired judgment, or impaired abstract thinking. Thus, the totality of the Veteran’s PTSD symptoms more closely approximated a 30 percent rating. The evidence of record, then, does not support a rating higher than 30 percent prior to receipt of the Veteran’s October 2015 Form 9. Furthermore, at no time has the Veteran endorsed PTSD symptoms which rise to the level of a 100 percent rating and no medical records of evidence show that he was found to have gross impairment, grossly inappropriate behavior, persistent danger of hurting oneself or others, inability to perform activities of daily living, disorientation, or memory loss. There is also no indication that the Veteran endorsed symptoms of visual or auditory hallucinations and/or delusions. Thus, the evidence of record does not support a rating higher than 70 percent at any point during the period on appeal. Thus, a 70 percent rating, but no higher, is warranted as of the Veteran’s October 23, 2015, Form 9 submission, but no earlier. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.