Citation Nr: 21030481 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-03 214 DATE: May 19, 2021 ORDER The issue of entitlement to service connection for a traumatic brain injury (TBI) with memory loss is dismissed. Beginning December 1, 2014, a 70 percent disability rating, but no higher, for service-connected posttraumatic stress disorder (PTSD), is granted. Throughout the appeal period, a rating in excess of 70 percent for service-connected PTSD is denied. FINDINGS OF FACT 1. Prior to the promulgation of a decision on the issue of entitlement to service connection for a TBI with memory loss, the Veteran requested a withdrawal of that claim from appellate consideration. 2. The evidence of record reflects that, beginning December 1, 2014, the Veteran's service-connected PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas. The evidence of record does not indicate that these symptoms resulted in total occupational and social impairment at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for a TBI with memory loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Beginning December 1, 2014, the criteria for establishing entitlement to a 70 percent disability rating for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. Throughout the appeal period, the criteria for establishing entitlement to a disability rating in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 2006 to November 2014, and from April 2015 to September 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran presented testimony at a Board hearing before the undersigned. A transcript of that hearing has been associated with the evidence of record. The Board notes the Veteran has been in receipt of a 90 percent combined disability rating since December 1, 2014, and a 100 percent combined disability rating since April 1, 2020. 1. Entitlement to service connection for TBI with memory loss. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. Prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of his claim of entitlement to service connection for a TBI with memory loss. See May 4, 2020 VA 21-4138 Statement in Support of Claim. He reiterated this request during his May 2020 Board hearing. See May 4, 2020 Board Hearing Transcript, p 2. The Board concludes that the Veteran has withdrawn this appeal regarding the issue of entitlement to service connection for a TBI with memory loss and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to conduct an appellate review of that issue and it is dismissed. 2. Entitlement to an increased rating for service-connected PTSD, in excess of 50 percent prior to December 7, 2017, and in excess of 70 percent thereafter. In May 2017, the Veteran filed a claim seeking an increased disability rating for his service-connected PTSD. In September 2017, the Department of Veterans Affairs (VA) Regional Office (RO) issued a rating decision that continued the previously assigned 50 percent rating for the Veteran's service-connected PTSD. The Veteran appealed that decision to the Board of Veterans' Appeals (Board). During the appeal period, the RO issued a rating decision that increased the Veteran's PSTD disability rating from 50 percent to 70 percent, effective December 7, 2017. However, as the increased rating did not constitute a full grant of the benefits sought, the Veteran's claim for a higher evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran's claims folder is now before the Board for appellate consideration. The Veteran essentially contends that his service-connected PTSD meets the criteria for a rating in excess of 50 percent prior to December 7, 2017, and a rating in excess of 70 percent since that date. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. As noted above, the Veteran's PTSD is rated 50 percent disabling prior to December 7, 2017, and 70 percent disabling since that date. Both ratings have been assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders (General Formula) and provides, in pertinent part, the following criteria for evaluating PTSD: A 50 percent rating is warranted for symptoms resulting in occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for symptoms resulting in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for symptoms resulting in 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; memory loss for names of close relatives, own occupation, or name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the 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). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. As to entitlement to a rating in excess of 50 percent for the PTSD prior to December 7, 2017, the Board finds the evidence is at least in equipoise as to whether the Veteran's PTSD symptoms approximated the criteria for a 70 percent rating for the entire rating period on appeal (beginning December 1, 2014). In this regard, on VA examination in June 2017, the Veteran endorsed having psychiatric symptoms that included 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, including work or a worklike setting. The Veteran described his job as chaotic and distracting, and that he felt anxious in trying to track everything around him. He also described having difficulty in public and indicated that he limited his lifestyle due to his anxiety and hypervigilance. He reported feeling irritable due to sleep deprivation and having a strained relationship with his wife. Six months later, during his December 7, 2017 VA examination, he endorsed having many of the same psychiatric symptoms. However, he added also endorsed now having mild memory loss, such as forgetting names, directions, or recent events, and the inability to establish and maintain effective relationships. And while he denied experiencing current suicidal ideation, he reported to the June 2017 VA examiner that he "had suicidal ideation in the past...." See June 2017 VA examination report, p 3. Likewise, he reported to the December 2017 VA examiner that his symptoms included "fleeting suicidal ideation several weeks ago." See December 2017 VA examination report, p 6; see also May 4, 2020 Board Hearing Transcript, pp 3-4. The examiner noted that the Veteran was distracted by PTSD, that he experienced mild memory problems, that he was irritable and short-tempered at home, and that he was distant from people in his life. While the June 2017 VA examiner opined that the Veteran's PTSD symptoms were "moderate" and best summarized by the level of impairment associated with a 50 percent rating (i.e., "occupational and social impairment with reduced reliability and productivity"), the examiner also noted that the severity level of the Veteran's symptoms "appears to have worsened now that he has transitioned out of the miliary, into the civilian world where he reportedly feels more vulnerable and less like-minded to others." See June 2017 VA examination report, pp. 1, 5. The examiner also commented, "Both his social and occupational functioning is poor and limited due to the anxiety and sleep deprivation caused by the PSTD." Id. Only six months later, the December 2017 VA examiner opined that the Veteran's psychiatric symptoms resulted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner characterized the level of impairment experienced by the Veteran as "significant and causing interference at home and work." See December 2017 VA examination report, pp. 1, 6. Based on a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD, prior to December 7, 2017, was manifested by occupational and social impairment with deficiencies in most areas, due to such symptoms such as impaired impulse control, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. While the June 2017 VA examiner opined the PTSD only caused occupational and social impairment with reduced reliability and productivity, the examiner did note the symptoms included past suicidal ideation, which could be associated with a 70 or 100 percent rating under Diagnostic Code 9411. In addition, the June 2017 examiner indicated that the Veteran's PTSD symptoms had worsened at that his social and occupational functioning was poor due to his anxiety and sleep deprivation. The Board finds that this observation, combined with the fact that the December 2017 VA examiner characterized the Veteran's PTSD symptoms as causing "social and occupational impairment with deficiencies in most areas" only six months later, suggests that his symptoms had already worsened even if he was not manifesting all of the symptoms during the June 2017 examination. More importantly, the Board finds it significant that the Veteran had past suicidal ideation prior to his June 2017 VA examination and then had an episode of "fleeting suicidal ideation" just weeks before his December 2017 VA examination. In any event, though the June 2017 VA examination by itself does not support an increased rating of 70 percent, when considering the totality of the evidence (the June 2017 examiner's comments and the December 2017 examiner's findings), the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected PTSD was manifested by occupational and social impairment with deficiencies in most areas prior to December 7, 2017. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds entitlement to a 70 percent disability rating, but no higher, is warranted for the service-connected PTSD, beginning December 1, 2014. Likewise, the Board finds that the criteria for a disability rating greater than 70 percent have not been met at any time during the appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Specifically, the Board finds that the criteria for a 100 percent schedular rating were not met at any time during the pendency of the appeal either prior to or since December 7, 2017. While the Veteran arguably experienced some symptoms contemplated by a 100 percent rating, including "fleeting suicidal ideation," the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. The Board has carefully reviewed the VA treatment records, June 2017 and December 2017 VA examination reports, and the Veteran's lay statements and testimony. See November 2017 Notice of Disagreement; January 2018 VA Form 9; and May 2020 Board Hearing Transcript. As noted above, the Veteran's PTSD symptoms throughout the appeal period were either contemplated by or more consistent with a 70 percent or lower rating. Additionally, there is no indication the Veteran's symptoms included gross impairment in thought processes or communication; persistent delusions or hallucinations; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. 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 schedular rating. A rating in excess of 70 percent at any time during the appeal period is not warranted. As a final matter, the Veteran has not raised any other issues with respect to his claim on appeal, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). While the Veteran's employment status was discussed during his May 2020 Board hearing, the Veteran did not allege, and the evidence does not suggest, that he was unemployable as a result of his service-connected PTSD. Accordingly, the Board concludes that a claim for TDIU has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also November 2019 DBQ Addendum/Clarification ("His work history suggests that he can sustain employment when not required to be in a crowded, social area.") John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.