Citation Nr: 21023431 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-00 210 DATE: April 20, 2021 ORDER Entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the appeal period, the Veteran’s service-connected PTSD was manifested by no worse than occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.15, 3.321(b)(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 January 1967 to May 1969. He was awarded a Purple Heart, among other decorations. Most recently, in an August 2020 decision, the Board remanded the issue on appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the record reasonably raises the question of whether the Veteran is unemployable due to his service-connected PTSD, and as such, part and parcel to the claim is whether a total disability rating based on individual unemployability (TDIU) is warranted. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In this case, entitlement to TDIU was previously granted in a December 2001 rating decision, with an effective date of May 18, 2001, prior to the date of the increased rating claim for PTSD on appeal herein. As such, the Board concludes that the issue is not in appellate status. Additionally, the Board notes that a VA treatment record dated January 2021 was added to the claims file after the September 2020 supplemental statement of the case (SSOC) for which there is not an automatic waiver of initial AOJ consideration. On review, this record shows ongoing treatment and contentions that remain the same as those established in other records reviewed by the RO in connection with the PTSD claim decided herein. Specifically, this treatment note details only the Veteran felt frustration and irritation as current symptoms of his PTSD and was otherwise duplicative of the evidence previously reviewed and considered by the RO. These symptoms are considered in the Board’s decision and applied to the applicable rating code for consideration of a higher rating herein. Thus, the additional evidence does not materially alter the outcome of the case. As such, the Board finds that remand for initial AOJ review of this evidence in relation to the PTSD claim is not necessary, and there is no prejudice to the Veteran in proceeding with adjudication of the case. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Increased Rating 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. Part 4. 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary disorders of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Entitlement to a rating in excess of 70 percent for service-connected PTSD. In his June 2017 increased rating claim, the Veteran generally asserted that his PTSD symptoms were more severe than his current rating reflected. Specifically, he asserts that his PTSD symptoms manifest as grossly inappropriate behavior, persistent danger of others, and memory loss of names of others. He further contends in his October 2017 notice of disagreement that his anger has led to several encounters with police. The Veteran’s PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula For Mental Disorders, to include PTSD, a 70 percent evaluation is warranted where 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; 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 (a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency 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). The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). The Board will consider whether the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, and, if so, the equivalent rating will be assigned. Id. A veteran 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 v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Use of the term “such as” in the general rating formula for mental disorders at 38 C.F.R. § 4.130 indicates that the symptoms after that phrase do not 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, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. A March 2019 VA examination report detailed the Veteran’s complaints of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened effect, difficulty understanding complex commands, impaired judgement, impaired abstract thinking, disturbance of mood, difficulty in establishing relationships and adapting to stressful circumstances, and impaired impulse control. The examiner noted that while the Veteran had impaired concentration, short term memory, abstract reasoning, and impulsive judgment, the Veteran was otherwise cooperative, maintained eye contact, had fair insight, had normal speech and psychomotor activity, was without thought disorder, and denied suicidal ideation. The examiner opined the Veteran’s PTSD symptoms manifested as occupational and social impairment with reduced reliability and productivity. Medical treatment records for the appeal period reflect symptoms similar to those reported in the VA examination reports of record. The medical treatment records also reflect that the Veteran uses prescription medication to manage his PTSD symptoms and attends group therapy sessions focused on symptom management and health concerns. Medical treatment notes for the appeal period consistently noted the Veteran was noted as being well-groomed, cooperative, having normal intellectual functioning, and circumlocution thought content with appropriate response without hallucination, psychotic thinking, and/or suicidal ideation. After careful review of the record, the Board finds that a rating in excess of 70 percent for service-connected PTSD is not warranted at any time during the appeal period. The evidence of record fails to show that the Veteran’s symptoms more nearly approximated total occupational and social impairment at any time during the appeal period. In particular, the Veteran’s treatment providers and examiner have documented symptoms such as depressed mood, anxiety, panic attacks that occur more than once weekly, chronic sleep impairment, mild memory loss, flattened effect, disturbances of mood and motivation, and difficulty in establishing and maintaining social relationships. Importantly, no VA examiner or treatment provider has found the Veteran to experience total occupational and social impairment caused by his PTSD. There is no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, inability to perform activities of daily living, and disorientation to time or place. Further, evidence of record fails to find the Veteran has suicidal ideation, severe obsessive rituals, or severe social impairment. Indeed, all medical treatment notes and examination have noted the Veteran to be well-groomed, cooperative, have normal intellectual functioning and circumlocution thought content with appropriate response without hallucination, psychotic thinking, and/or suicidal ideation. The provided opinions are shown to have been based upon a thorough examination and review of the evidence of record, and, as such, the Board considers them probative and persuasive. Although his symptoms caused difficulty with both occupational and social functioning, he was not totally socially and occupationally impaired, and a 100 percent rating is not warranted at any time during the appeal period. 38 C.F.R. § 4.130, Diagnostic Code 9411. (Continued on the next page)   In reaching this conclusion, the Board notes that the Veteran is competent to report symptoms of his PTSD, but not to identify a specific level of disability. The medical findings in this case directly address the criteria under which this disability is evaluated, and the objective medical evidence is accorded greater weight than the subjective complaints of increased symptomatology. Therefore, the preponderance of the evidence is against the claim for a higher rating. R.Costello Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.