Citation Nr: 21029144 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-32 481 DATE: May 12, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's PTSD has been manifested by no more than occupational and social impairment with deficiencies in most areas throughout the appeal period. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1966 to May 1969, including service in the Republic of Vietnam for which he was awarded the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. In October 2018 and August 2020, the Board remanded this matter for additional development. In a November 2019 rating decision, the RO granted a TDIU based solely on the Veteran's PTSD effective January 24, 2012. As the RO granted TDIU from the date PTSD was service-connected and PTSD is the sole basis for that grant, no earlier effective date can be considered and that is considered a full grant of the issue. See Delrio v. Wilkie, 32 Vet. App. 232, 245 (2019) (compensation cannot be paid for a disability, at any evaluation level, before the effective date of service connection for the disability). The Veteran initially sought a 70 percent rating for his PTSD but now asserts that a 100 percent rating is warranted for the entire appeal period. See August 2013 Notice of Disagreement (NOD), December 2019 VA Form 646. The Veteran is in receipt of an initial 70 percent rating for PTSD under DC 9411 (PTSD), granted by the Board in its October 2018 decision. The period on appeal is from January 24, 2012, the effective date of service connection. 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. The Board concludes that the Veteran's symptom do not cause the level of impairment required for a disability rating of 100 percent. Instead, 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. Under DC 9411, 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 this regard, the Board reviewed all of the evidence of record at the time of the October 2018 Board decision and concluded that a 70 percent rating was warranted. Specifically, VA treatment records and VA examination reports dated throughout the appeal period document the Veteran's increased irritability with others, passive suicidal ideation, severe depression and anxiety, isolative behaviors (withdrawing from therapy and other people), avoidance behaviors (avoiding groups and previous hobbies), difficulty in adapting to stressful circumstances and difficulty establishing and maintaining effective relationships (taking care of things at work, home, and getting along with other people is difficult), emotional distress when exposed to reminders of combat, and hypervigilance. See August 2012, September 2012, December 2012, January 2013, October 2016, and November 2016 VA treatment records; August 2012 and February 2016 VA examination reports; June 2016 private psychological examination. During the February 2017 hearing, the Veteran and his spouse testified about the Veteran's irregular behaviors, which can be categorized as obsessional rituals that interfere with routine activities (cannot have lights on in the house once it is dark outside or tolerate having cars traveling behind him on the roadway), passive suicidal ideation, mild memory loss, and occasional neglect of his personal appearance and hygiene. Since the issuance of the October 2018 Board decision, additional evidence has been submitted into the record. VA treatment records reveal the Veteran continued to endorse passive suicidal ideation throughout the appeal period. See November 2018, October 2019, March 2019, June 2019 VA treatment records; see also, Bankhead, supra. In November 2020, the Veteran submitted a letter from a Vet Center indicating that he had been participating consistently in weekly support group meetings since January 2012 and included the attendant group meeting records. See January 2012 to August 2020 Vet Center treatment records. During an April 2019 assessment, the Veteran reported that he felt optimistic about the future, was dealing well with problems, and making up his own mind about things some of the time. See April 2019 Vet Center treatment records. However, the Veteran also reported that he rarely felt that he was thinking clearly and rarely felt useful, relaxed, or close to other people. Id. At a February 2020 assessment, the Veteran reported that some of the time he felt optimistic about the future, relaxed, close to other people, and able to make up his own mind about things. See February 2020 Vet Center treatment records. He also reported that he rarely felt that he was thinking clearly or that he was useful. Id. Notably, while the Veteran's support group had to be discontinued in-person due to the Covid-19 pandemic in March 2020, the Veteran reported feeling well during weekly telephone check-ins other than stress associated with the pandemic. See, generally, March 2020 through October 2020 Vet Center treatment records. Throughout the appeal period, the Veteran has been noted to be well-groomed, cooperative with good eye-contact, displaying logical and linear thought processes with goal directed thought, of good insight and judgement, and without any auditory or visual hallucinations. See August 2012, October 2012, November 2012, December 2012, January 2013, June 2013, September 2013, November 2013, January 2014, May 2014, October 2014, May 2015, March 2016, September 2016, November 2016, April 2017, January 2019, October 2019 VA treatment records. Likewise, the Veteran was noted to be oriented to time, person, and place with normal speech and adequate insight and without delusions or hallucinations at psychiatric groups he attended throughout the appeal period. See March 2017, April 2017, May 2017, August 2018, September 2018, October 2018, November 2018, December 2018, April 2019, May 2019, June 2019 VA Psychiatric Group Counseling Notes. His PTSD was consistently noted to be stable and improved by VA treatment providers since June 2018. See June 2018, October 2018, January 2019, October 2019, February 2020, August 2020, November 2020 VA treatment records. Here, the severity, frequency, and duration of the Veteran's symptoms more 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. See 38 C.F.R. § 4.126. In this regard, all specifically identified symptoms were consistent with the frequency, duration, and severity of a rating of 70 percent or less. Additionally, while the Veteran testified he was experiencing memory loss and forgetting directions, the VA treatment records do not support that the Veteran is experiencing the level of memory loss associated with a 100 percent rating, and the February 2016 VA examiner concluded the Veteran was over-reporting his memory loss symptoms. The Veteran's social relationships with his wife and children, while not unimpaired, demonstrate social functioning that is inconsistent with a finding of total social impairment. See June 2019, July 2019, and September 2019 VA treatment records. The Veteran has also reported engaging in woodworking groups. See November 2019 VA treatment records. Regarding his occupational impairment, as noted above, the Veteran is in receipt of a TDIU for the entire appeal period. Thus, as 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, an initial rating in excess of 70 percent for PTSD is denied. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.