Citation Nr: 21011555 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 09-19 032A DATE: March 2, 2021 ORDER Prior to August 2, 2015, an initial rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. Beginning August 2, 2015, a rating of 70 percent for PTSD is granted. FINDINGS OF FACT 1. Prior to August 2, 2015, the Veteran’s overall disability picture more nearly approximated occupational and social impairment with reduced reliability and productivity. 2. Beginning August 2, 2015, the Veteran’s overall disability picture more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to August 2, 2015, the criteria for a rating of 50 percent, but not higher, for PTSD have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020).   2. Beginning August 2, 2015, the criteria for a rating of 70 percent, but not higher, for PTSD have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to December 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was most recently before the Board in April 2019 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that in July 2020, the Veteran’s claims for increased ratings for a low back disability and left elbow disability and entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 2, 2015, were remanded for further development. However, as the agency of original jurisdiction (AOJ) is still taking action on those claims, they will be the subject of a subsequent Board decision, if otherwise in order. The Board also notes that after a supplemental statement of the case (SSOC) was issued in June 2020, the AOJ obtained additional relevant VA mental health treatment records. In January 2021, the Veteran indicated that he wished to waive AOJ consideration of this evidence in the first instance. Accordingly, the Board will proceed with adjudication of this claim.   Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) 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 (2020). 1. Entitlement to a higher rating for PTSD, rated as 30 percent disabling prior to December 30, 2015, and as 50 percent disabling thereafter Under the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. 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 such as, 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. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. 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 the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s PTSD and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2020). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117.   Prior to August 2, 2015 Upon review of the record, the Board finds that the criteria for an initial rating of 50 percent for PTSD have been more nearly approximated prior to August 2, 2015. In a February 2006 written statement, the Veteran’s mother indicated that since the Veteran returned from Iraq, he has had several episodes of extremely angry behavior and lashed out at her verbally on at least one occasion. The Veteran underwent a VA examination in May 2006, during which he endorsed symptoms of irritability, avoidance of groups and crowds, and mild social withdrawal. There was no impairment in thought process, communication, or ability to perform activities of daily living. The Veteran appeared adequately groomed with good personal hygiene and good eye contact. His speech was normal; thought process was logical, coherent, and goal oriented; concentration and attention were adequate; and insight and judgment were well preserved. The Veteran’s mood was mildly anxious and depressed, and his affect was somewhat constricted, but appropriate to thought content and mood. There was no evidence of hallucinations, delusions, suicidal or homicidal ideation, ritualistic behavior, or deficiencies in cognition or attention. The Veteran reported recently returning to school to pursue a degree in business. He stated that he was taking four classes and has not lost any time from his studies due to mental health symptoms. The examiner characterized the Veteran’s level of functioning as occupational and social impairment which will decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In a September 2009 written statement, the Veteran indicated that he had difficulty trusting people, trouble sleeping, difficulty remembering things, and he lacked enthusiasm for life. He further stated that he felt constantly on guard, defensive, mentally and emotionally drained, and disconnected from others. Treatment records throughout the period on appeal prior to August 2, 2015, show that the Veteran reported struggling to control his anger and his “fight or flight” mentality. He reported increased social isolation, difficulty connecting with people, difficulty with physical affection, avoidance of crowds, and some forgetfulness. At times, the Veteran’s treatment providers noted that his affect was flat, and his judgment was fair. The record also evidences disturbances of mood and motivation, such as reports of struggling to get out of bed, get to work, and stay at work. Based on the foregoing, the Board finds that the Veteran’s overall disability picture more nearly approximates occupational and social impairment with reduced reliability and productivity. Accordingly, an initial rating of 50 percent is granted throughout the period on appeal prior to August 2, 2015. The Board finds that a rating in excess of 50 percent is not warranted at any time prior to August 2, 2015. The Veteran reported thoughts of suicide or self-harm on a few occasions during this period, and the Board acknowledges that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). However, 38 C.F.R. § 4.130 “requires not only the presence of certain symptoms” but also that those symptoms have caused the level of occupational and social impairment associated with a particular disability evaluation.” Id. at 18 (quoting Vazquez-Claudio, 713 F.3d at 117). Although “symptoms are the ‘primary consideration’ in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a particular evaluation ‘also requires an ultimate factual conclusion as to the veteran’s level of [occupational and social] impairment…” Id. (quoting Vazquez-Claudio, 713 F.3d at 118). “VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Id. at 22. In this case, the record shows that the Veteran reported thoughts of suicide or self-harm on approximately six occasions between December 2005 and August 2015. During those 14 years, the Veteran was regularly asked about thoughts of suicide; however, he otherwise consistently denied any suicidal ideation. Moreover, the Board finds that the evidence of record does not show mental health symptoms resulting in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. Treatment records during this time period show that the Veteran graduated from college with a degree in business management, competed a summer internship, worked, spent time with friends and family, dated, went on trips, and engaged in social activities, including parties and sporting events. He also met and eventually married his wife, participated in events surrounding their wedding, and helped care for their young children. Furthermore, the there was no evidence of obsessional rituals which interfere with routine activities; illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, difficulty in adapting to stressful circumstances, including work or a work-like setting; or an inability to establish and maintain effective relationships. Additionally, although the Veteran was noted to be wearing dirty clothing at times, his treatment providers indicated that such was appropriate for the Veteran because he came from a construction job site. The Veteran’s treatment providers indicated that the Veteran was adequately groomed, and there was no evidence of neglect of personal appearance and hygiene. Accordingly, the Board finds that the criteria for a rating in excess of 50 percent have not been met at any time prior to August 2, 2015. Beginning August 2, 2015 Beginning August 2, 2015, the Board finds that the criteria for a rating of 70 percent have been more nearly approximated. As of that date, the Veteran stopped working for his friend’s company because his friend could no longer deal with his interactive style, and the Veteran began receiving TDIU. Treatment records during this time period show that the Veteran reported increased anger and frustration, and he stated that every day was a struggle. He also appeared disheveled on a number of occasions without any indication that he came directly from a construction job site. During the September 2015 Board hearing, the Veteran testified that his PTSD symptoms were getting worse. He stated that his relationship with his wife was becoming more contentious, and he struggled with trying to feel close to his wife and children. He also stated that he was no longer working and that he stayed home during the day while his children were in daycare. The Veteran underwent a VA examination in December 2015, during which he endorsed symptoms of depressed mood, anxiety, intrusive thoughts, chronic sleep impairment, suspiciousness, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. He reported spending most of his days at appointments, looking for physical therapy resources, helping out with his children, running occasional errands, and watching television. He reported feeling like he was “fighting for his life” and having difficulty controlling the intensity of his anger. However, he denied any physical altercations. He reported interacting with only one friend from the military and stated that he longer liked to go out and could not tolerate crowds. He also stated that self-care was a struggle, noting that he has gone days without showering because he was forgetful and unmotivated. He endorsed thoughts of suicide without any intent or plan but denied any current suicidal ideation. The examiner indicated that the Veteran was alert, oriented, and cooperative, and he appeared poorly groomed with a long beard, disheveled hair, and dirty clothes. The Veteran’s mood was good; affect was euthymic; speech and thought content were normal; thought process was logical and goal directed; and memory, attention, insight, and judgment were intact. There was no evidence of hallucinations or delusions. The examiner characterized the Veteran’s level of functioning as occupational and social impairment with reduced reliability and productivity. The Veteran underwent another VA examination in December 2019, during which he endorsed symptoms of depressed mood; anxiety; chronic sleep impairment; daytime fatigue; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; and neglect of personal appearance and hygiene. He reported generally staying home with his young children while his wife worked. He described his home life was hectic and noted that he struggled to interact with his children. He reported trying to go to church, but denied regularly seeing friends or engaging in any hobbies or interests. He reported becoming “aggressively standoffish” when he felt that he was not heard. He denied any intent or plan to harm himself, but indicated that he has thought about what it would be like for his family if he were not around. He reported forgetting about basic hygiene and having a lack of motivation, which contributed to him feeling badly about himself. The Veteran was alert, oriented, and cooperative; his mood was fair; affect was flat; speech and thought content were normal; thought process was logical and goal directed; and memory, attention, insight, and judgment were intact. He was dressed in paint-stained clothes and appeared somewhat disheveled. The examiner characterized the Veteran’s level of functioning as occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood and indicated that the Veteran’s level of functioning has remained largely unchanged since his last VA examination in December 2015. After resolving reasonable doubt in favor of the Veteran, the Board finds that as of August 2, 2015, the Veteran’s overall disability picture has more nearly approximated occupational and social impairment with deficiencies in most areas. Accordingly, a rating of 70 percent is granted as of that date. The Board finds that a rating in excess of 70 percent is not warranted at any time on or after August 2, 2015, as the record does not show total occupational and social impairment. During this time, treatment records show that the Veteran was independent in activities of daily living; he continued to work construction jobs at times; he was the full-time caretaker of his four young children beginning in 2019, and engaged in a few social activities, such as attending parties and taking trips with his family. Moreover, there was no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time and place; or memory loss for names of close relatives, own occupation, or own name. Accordingly, total occupational and social impairment has not been shown, and a rating in excess of 70 percent on or after August 2, 2015, is denied.   In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning ratings in excess of those already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.