Citation Nr: 21028977 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-20 553 DATE: May 12, 2021 ORDER Entitlement to an initial rating higher than 50 percent for the service-connected posttraumatic stress disorder (PTSD) prior to January 29, 2019 is denied. Entitlement to a 70 percent rating, but no higher, for the service-connected PTSD effective January 29, 2019, is granted. FINDINGS OF FACT 1. Prior to January 29, 2019, the Veteran's PTSD was manifested by anxiety, depressed mood, difficulty in adapting to stressful circumstances, difficulty in adapting to work, suspiciousness, disturbances of motivation and mood, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships 2. From January 29, 2019 onward, the Veteran's PTSD was manifested by passive suicidal ideation, obsessional rituals interfering with routine activities, near-continuous panic or depression affecting the ability to function independently, impaired impulse control, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. 3. At no point during the appeal period was the Veteran's PTSD manifested by 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. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating higher than 50 percent for the service-connected posttraumatic stress disorder (PTSD) prior to January 29, 2019 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. 2. The criteria for entitlement to a 70 percent rating, but no higher, for the service-connected PTSD effective January 29, 2019, 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019 and November 2020, the Board remanded the matter for further development. The Board finds that the instructed development was completed, and further remands are unnecessary. The Veteran testified at a January 2019 Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Veteran seeks an initial rating higher than 50 percent for the service-connected PTSD. His PTSD is rated under 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 1. Entitlement to an initial rating higher than 50 percent for the service-connected posttraumatic stress disorder (PTSD) prior to January 29, 2019 is denied After reviewing the Veteran's treatment records, lay statements, and VA examinations, the Board finds that a 70 percent or higher rating is not warranted prior to January 29, 2019. The Veteran was afforded a VA examination in November 2015 to assess the severity of his PTSD symptoms. He had been married for four years at that time and had one child with his spouse with two other children living with him. He reported attending his children's school functions where his family would provide a barrier between him and other people and indicated that he did not have many friends. The November 2015 examiner documented that the Veteran suffered from anxiety, hypervigilance, and chronic sleep impairment as symptoms of PTSD. He specifically noted that the Veteran experienced intrusive memories and recurrent dreams of the traumatic event, negative alterations in cognitions and mood associated with the event, irritable behavior and angry outbursts expressed as verbal or physical aggression towards people or objects, and he persistently avoided external reminders of the event. In observing the Veteran's overall behavior and appearance, the examiner noted that the Veteran was casually dressed and well groomed, and was oriented to person, place, time, and purpose. The examiner determined that the severity and duration of the Veteran's symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress. The Veteran's VA treatment records through November 2020 are associated with the claims file. During a PTSD screening at an October 2016 appointment, the Veteran reported repeated memories and dreams of the traumatic event, feeling upset when reminded of the event, avoiding thinking or talking about the event, avoiding activities and situations that reminded him of the event, trouble remembering important parts of the event, irritable or angry outbursts, and feeling "superalert" and jumpy. The Veteran did not report suddenly acting or feeling as if the event were happening again, having physical reactions when reminded of the event, loss of interest in activities that he used to enjoy, feeling emotionally numb, or feeling as if his future will somehow be cut short. The Veteran indicated that he did not have thoughts of taking his life and was not hopeless about the present or future. As part of a separate PTSD screening at an April 2018 appointment, the Veteran reported nightmares about the traumatic event, avoiding situations that remind him of the event, being constantly on guard, and feeling numb or detached from others, activities, or his surroundings. The Veteran again separately indicated that he did not have thoughts of taking his life and was not hopeless about the present or future. The Board also reviewed the Veteran's June 2016 lay statements from his wife and coworker. His wife reported that the Veteran often engages in obsessive rituals such as always needing to have a cart when shopping for a buffer zone, avoids crowds, and struggles with loud noises such as popping balloons and dropping a book. She also reported that they no longer go out with friends, and other than to attend their children's events and go to work, he does not want to go out and socialize at all. Separately, the Veteran's coworker reported that he experiences quick mood swings, becomes very upset from loud noises, and has a difficult time maintaining self-control with coworkers. The Board finds that a 70 percent rating is not warranted prior to January 2019. The Board recognizes that the Veteran had some symptoms referenced in the criteria for a 70 percent rating; however, at no time were such symptoms or other reported symptoms shown to result in occupational and social impairment with deficiencies in most areas as contemplated by a 70 percent rating. For instance, the Veteran reported no active or passive suicidal ideation at any point prior to January 2019; did not demonstrate any speech impairment; did not report near continuous panic that affected the ability to function independently or spatial disorientation; and did not present to any appointments with neglect of personal appearance or hygiene. He did not report any frequency of panic attacks prior to the January 2019 Board hearing. Moreover, he had been able to maintain and do well at his job, which allowed him to work independently. Beyond his statement that if employees sneak up on him, he might punch them and a past co-worker's statement regarding mood swings at work, there are no indications that the Veteran had occupational impairment beyond reduced reliability and productivity. The Veteran also consistently had normal insight and judgment and was alert and oriented to time, place, and person during VA appointments, with no indication of neglect of personal appearance and hygiene or spatial disorientation. Accordingly, the Board finds that the Veteran's abovementioned disability picture most closely fit a 50 percent rating; therefore, a higher rating is not warranted prior to January 29, 2019. 2. Entitlement to a 70 percent rating, but no higher, for the service-connected PTSD effective January 29, 2019, is granted. The Board finds that a 70 percent rating is warranted from January 29, 2019 onward. At the January 2019 Board Hearing, the Veteran and his wife testified as to his passive suicidal ideation, obsessional rituals such as always needing a shopping cart at stores, inability to handle loud noises at home and panic attacks two to three times a week, impaired impulse control with his wife pulling him away from situations before he gets violent, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, such as with his brothers and past friends. He also reports symptoms beyond those explicitly listed in the diagnostic criteria, such as inability to attend his daughter's large cheerleading competitions due to crowds and his thoughts going blank when having a conversation. From November 2019 onward, the Veteran's treatment records reflect these symptoms. During a November 2019 PTSD, depression, and suicide screening, the Veteran reported that several days each month he thought about hurting himself or that he would be better off dead. He later indicated at the same screening that he had wished he were dead within the past month but did not have any actual thoughts of killing himself and had never prepared to do anything to end his life. The Veteran was afforded a second VA examination in December 2019. The examiner noted symptoms beyond those documented in the November 2015 examination, such as physiological reactions to reminders of the traumatic event, persistent negative emotional state, markedly diminished interest or participation in activities, and exaggerated startled response. The examiner documented that the Veteran suffers from depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. During the examination, the Veteran reported that his PTSD causes him to have difficulty socially interacting with others, such as co-workers and family, especially under times of stress. He indicated that he has not been treated for PTSD or anger management because that's not how he was raised. Based on the aforementioned VA examination and hearing testimony, the Board finds that his occupational and social impairment began to cause deficiencies in most areas, starting in January 2019. After considering the evidence, the Board finds that a 70 percent rating, but no higher, is warranted effective January 29, 2019, which is when the Veteran testified as to experiencing passive suicidal ideation and increased prevalence of panic attacks. As noted above, the evidence prior to this date did not show such symptoms, so this is the earliest date it was factually shown an increase was warranted. The Board finds that the Veteran's PTSD does not warrant a 100 percent rating for the entire appeal period. The Veteran has not manifested any of the symptoms or the level of impairment contemplated by a 100 percent rating throughout the appeal period. While he exhibited occupational and social impairment with deficiencies in most areas, this impairment did not reach total impairment. His VA treatment records consistently showed intact thought processes and communication, appropriate behavior, intact orientation, and no persistent delusions or hallucinations. To the extent that the Veteran reported memory loss, he reported issues remembering what to say in conversations and in recalling errands and lists, such as while shopping. Similarly, while there was evidence of suicidal ideation, he indicated no plan and he was not considered a persistent danger to himself. Accordingly, a 70 percent rating, but no higher, is warranted for the Veteran's service-connected PTSD, effective January 29, 2019. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.