Citation Nr: 21025385 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-28 798 DATE: April 28, 2021 ORDER Entitlement to a disability rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) prior to December 27, 2018 is granted. FINDING OF FACT For the period on appeal, the Veteran’s PTSD most nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 50 percent, but no higher, for PTSD prior to December 27, 2018 have 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 in the Army from July 1966 to May 1969, from May 1973 to April 1975, and from April 1976 to December 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in an April 2020 decision, the Board denied entitlement to a disability rating in excess of 30 percent for PTSD prior to December 27, 2018. The Veteran appealed the Board’s April 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated the April 2020 Board’s denial of entitlement to a disability rating in excess of 30 percent for PTSD prior to December 27, 2018. The case was returned to the Board for development consistent with the JMPR. Entitlement to a disability rating of 50 percent for PTSD prior to December 27, 2018 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). 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. Prior to December 27, 2018, the Veteran’s PTSD was rated as 30 percent disabling and after December 27, 2018 the Veteran’s PTSD was rated as 70 percent, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Upon review of the evidence of record, the Board finds that the Veteran has demonstrated a level of impairment consistent with the 50 percent criteria, and the Veteran’s symptoms are found to have caused occupational and social impairment with reduced reliability and productivity throughout the period on appeal. The Veteran has been found to have panic attacks more than once a week, anxiety, irritability, nightmares, and a sleep impairment. Notably, the record includes a letter dated August 2013 written by a Dr. J.B. regarding the severity of the Veteran’s PTSD disability. Dr. J.B. stated that the Veteran had been receiving care from his clinic since June 13, 2013 for symptoms of PTSD and an apparent panic disorder with agoraphobia. Dr. J.B. also stated that the Veteran was experiencing nightmares, headaches, trust and panic symptoms that limited his driving and establishment of social supports. Additionally, Dr. J.B. stated that the Veteran was also showing symptoms of ruminative thinking and some cognitive flow problems of unknown etiology. The record also includes a letter submitted by a Dr. C.L. received by VA in September 2013. Dr. C.L. stated that her clinic had observed the Veteran’s PTSD disability which was related to his military service. Dr. C.L. also stated that the Veteran’s PTSD was characterized by depression, anxiety, hypervigilance, irritability, intrusive thoughts, and nightmares. Additionally, she noted that his concentration and sleep were poor and that his symptoms had a significant negative impact on his activities of daily living. The Board notes that some of the Veteran’s symptoms are specifically contemplated by the 50 percent rating criteria. Lastly, the Veteran’s treatment records note that the Veteran reported that he experienced panic attacks one to two times a week. See September 2016 Treatment Record. Thus, resolving doubt in favor of the Veteran, a 50 percent evaluation is warranted for the appeal period prior to December 27, 2018. However, to the extent that any of the symptoms contemplated in the rating criteria for a 70 percent evaluation or symptoms of similar severity may be shown or argued, the Board finds that the Veteran’s disability has not been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Indeed, during the period on appeal, neither VA examiner who evaluated the severity of the PTSD determined that the Veteran was unemployable or had any difficulty at work as due to his PTSD. See July 2014 VA examination (the examiner found that the PTSD contributed to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress); see also April 2016 VA examination (the examiner found the Veteran to be generally functioning satisfactorily, with normal routine behavior, self-care and conversation). Furthermore, both examiners similarly noted that the Veteran did not have any difficulty maintaining his social and romantic relationships. Id. The 70 percent rating was assigned based on a finding by the December 2018 VA examiner that the Veteran’s PTSD contributed to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Prior to the date of that examination, that is, December 27, 2018, the record does not reflect that the Veteran’s PTSD was so severe as to cause impairment with deficiencies in most areas. Instead, the evidence reflects that prior to this examination the Veteran’s overall PTSD picture is adequately contemplated by the 50 percent rating. For these reasons, the Board finds that a rating in excess of 50 percent for PTSD is not warranted prior to December 27, 2018. C. M. Collins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.