Citation Nr: 21024562 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-40 450 DATE: April 23, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder with unspecified depressive disorder is denied. FINDING OF FACT Posttraumatic stress disorder with unspecified depressive disorder is manifested by anxiety, chronic sleep disturbance and difficulty in adapting to stressful circumstances, resulting in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for posttraumatic stress disorder with unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2002 to December 2003. A hearing was held before the undersigned veterans law judge in February 2020 in St. Petersburg, Florida. The transcript is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. This case was previously before the Board in April 2020, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder with unspecified depressive disorder Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. See, 38 C.F.R. § 4.7. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. In a December 2012 statement, the Veteran reported that he had nightmares and could not trust many people as he feels like he is constantly under attack. The Veteran received a VA examination in October 2013. He reported that he lived with his parents because he doubted that he would “actually succeed” living on his own. He stated that he spent the majority of his time playing World of Warcraft, and that while he enjoyed interacting with others in the game, he did not have any face-to-face friends. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Social Security records include a psychodiagnostic evaluation from May 2015. He reported having few friends and communicating with them primarily via social media. He stated that he was self-sufficient in basic activities of daily living, although his mother reported that he needed reminders to shave and shower. The Veteran reported spending leisure time reading, playing on the computer, or playing with his cat. He reported that he was able to go to public places with family members but not on his own because he would “break down.” The examiner noted that the Veteran’s affect was relatively flat with limited emotional expression and eye contact with the examiner was variable. He was able to communicate clearly and directly answer questions. Attention and concentration were adequate, and he exhibited logical and goal-directed thinking. He did not display any significant thought disorder or perceptual disturbance. VA treatment records show intermittent passive suicidal ideation with one instance, in March 2017, of a positive suicide screen with both plan and intent. The Veteran received another VA examination in June 2017. He reported that he would read, play video games and help with chores. He indicated that he had no friends and that he tried to avoid large crowds. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner also indicated that the Veteran’s grooming and hygiene were normal, thought processes were logical and linear, and that he was fully oriented. The Veteran denied suicidal ideation. At his hearing, the Veteran testified that his PTSD had gotten worse and that he sometimes wished he could harm people. He also indicated that he still had suicidal thoughts without plan. His mother testified that he needed reminders to brush his teeth or take medications, and that he stayed home all the time and would not even go for a walk alone. The Veteran received another VA examination in July 2020. He reported that he lived with his parents and spent his time playing video games, reading, and helping cook. He stated that he had difficulty getting out of bed, little interest in activities he previously enjoyed and could not tolerate being in crowds. His mother reported that he had difficulty with activities of daily living. The examiner indicated that the Veteran’s speech was clear and normal, but content was immature. There was no indication of psychotic thought processes in form or content. The Veteran denied suicidal or homicidal ideation. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms most closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. 38 C.F.R. § 4.126. The Board notes that the Veteran expressed suicidal ideation, which is factor contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran had only one positive suicide screen. He otherwise regularly denied thoughts, intent, or a plan involving self-harm, both in existing treatment records and during the June 2017 and July 2020 VA examinations. The Board also notes the Veteran’s testimony that he sometimes considers harming others. All other records show that he denied homicidal ideation, and there is no other indication that he is a threat to others. Therefore, the Board finds that this does not constitute persistent danger of hurting himself or others. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. To warrant a 100 percent rating, he would need to have total occupational and social impairment. That is not shown here. While the Veteran has few friends, and none that he sees in person regularly, his family relationships are stable. He is able to care for himself and contribute to the household. The Board notes the reports that the Veteran has difficulty with activities of daily living. The evidence shows that this is manifest as sometimes needing reminders for shaving and showering. This does not suggest inability to maintain personal hygiene, as required for the 100 percent rating.   In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.