Citation Nr: 21028062 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-53 214 DATE: May 10, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from December 31, 2015 is denied. FINDING OF FACT From December 31, 2015, the Veteran's PTSD was not manifested by total occupational and social impairment. CONCLUSION OF LAW From December 31, 2015, the criteria for entitlement to a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1976 to April 1979. This matter was previously before the Board of Veterans' Appeals (Board) in August 2019 and was remanded to obtain a new VA examination regarding the Veteran's PTSD. In February 2020, the examination was canceled, and an examination was requested at a different location because the Veteran is an employee of the Palo Alto VA. Another VA examination was canceled in March 2020 because the Veteran failed to RSVP. No good cause for his absence or failure to RSVP was shown. Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. 38 C.F.R. § 3.655 (b) applies to original or reopened claims or claims for increase, and 38 C.F.R. § 3.655 (c) applies to running awards, when the issue is continuing entitlement. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655 (a). 38 C.F.R. § 3.655 (b) holds that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Moreover, the Board finds there has been substantial compliance with its August 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Increased Rating The Veteran contends his PTSD is worse than the assigned disability rating reflects from December 31, 2015. This is the only issue on appeal. 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 cause the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms do 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 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. VA treatment records, the February 2015 VA examination, and the Veteran's lay statements show that the Veteran's PTSD with secondary polysubstance abuse manifested by symptoms associated with a 70 percent rating such as impaired impulse control, angry outbursts, and difficulty in adapting to stressful circumstances. The Veteran has not experienced any symptoms associated with a 100 percent rating. However, the Veteran has experienced symptoms that are not listed with a specific rating, such as hypervigilance. See February 2015 Discharge Summary, VADOM Menlo Park. The severity, frequency, and duration of the Veteran's hypervigilance are contemplated by a 70 percent rating because he reported experiencing a heightened awareness for threats, lack of trust, and physiological responses to trauma-related cues. See id. Further, these symptoms are similar to flattened affect, impaired judgement, and impaired abstract thinking, which are already contemplated by a lower, 70 percent rating. The Veteran has continuously denied suicidal thoughts, homicidal thoughts, and auditory or visual hallucinations. Furthermore, the Veteran continued to work a full-time job in August 2017, despite using heroin daily for close to a year. See August 2017 Internal Medicine Outpatient Note, Palo Alto VAMC. While the Veteran's PTSD may, in fact, bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. If his mental health did not cause him problems, there would be no basis for his 70 percent rating, the only question is the degree. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In short, the preponderance of the evidence of record 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. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.