Citation Nr: 21041113 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-19 010A DATE: July 8, 2021 ORDER From February 14, 2014, entitlement to a 70 percent evaluation, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the appeal period the Veteran's PTSD manifested by occupational and social impairment with deficiencies in most areas but did not produce total social impairment. CONCLUSION OF LAW 1. The criteria for entitlement to a 70 percent evaluation for PTSD are met for the entire appeal period. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for a 100 percent rating for PTSD are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to June 1977. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans' Affairs (VA) regional office (RO). The Veteran testified at a hearing with the undersigned in April 2021. Increased Ratings Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.2, 4.10. In evaluating a disability, the Board considers current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran's PTSD is evaluated under Diagnostic Code 9411, the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Thereunder, a 50 percent rating is assigned when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 work-like setting); and inability to establish and maintain effective relationships. 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi,16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating Id. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Therefore, VA must consider all symptoms of a veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5. Id. In evaluating symptoms and signs to determine their effect on the level of occupational and social impairment in order to arrive at an appropriate disability rating, the Board will look to their severity, frequency and duration; consider their impact as a whole; and make a quantitative assessment accordingly. See Bankhead v. Shulkin, 10 Vet. App. 26-27 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990); Mittleider v. West, 11 Vet. App. 181, 182 (1998). Entitlement to a 70 percent evaluation for PTSD prior to December 21, 2018 The Veteran's PTSD is rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective December 21, 2018. The Veteran was previously rated as 30 percent disabling, effective February 14, 2014. The Veteran contends he is entitled to a rating higher than 30 percent for the period prior to December 21, 2018. The Veteran was afforded a VA examination in June 2015. The Veteran was diagnosed with PTSD. The Veteran was assigned a 30 percent evaluation, effective February 14, 2014, for his PTSD based on his difficultly in establishing and maintaining effective work and social relationships, chronic sleep impairment, anxiety, and occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran was afforded another VA examination in January 2019. The Veteran's PTSD diagnosis was confirmed. The Veteran was then assigned a 70 percent evaluation, effective December 21, 2018, for his PTSD based on difficulty in adapting to stressful circumstances; occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; suspiciousness; depressed mood; suicidal ideation; disturbances of motivation and mood; mild memory loss; anxiety; difficulty in establishing and maintaining effective work and social relationships; chronic sleep impairment; panic attacks more than once a week; occasional hallucinations; night sweats; restlessness and difficulty relaxing; hopelessness; helplessness; anhedonia; apathy; decreased energy and fatigue; rumination; decreased self-esteem/confidence; and decreased libido. The Veteran contends his service-connected PTSD should be evaluated at 70 percent effective February 14, 2014. In hearing testimony with the undersigned, the Veteran testified he has experienced all of the symptoms associated with his 70 percent rating ever since February 2014, and that nothing changed since his effective date. The Veteran also stated he felt his VA examination in June 2015 did not adequately represent his symptoms associated with his PTSD. During this testimony, the Veteran stated since 2014 he has had panic attacks around twice a week, a feeling of hopelessness, helplessness, suspiciousness, a depressed mood, suicidal ideations, disturbances of motivation and mood, mild memory loss, anxiety, difficulty in establishing and maintaining effective work and social relationship, and chronic sleep impairment. He also testified he has outbursts of emotions without provocation, and that he could feel disoriented when he "gets stuck in [his] thoughts." The Veteran further explained he has no real relationship with his family and only has one friend. The Veteran's friend of 49 years also testified that the Veteran's PTSD symptoms have not changed since 2014. He stated that since 2014 he has seen his friend become irritable, continuously disengage from his social and family relationships, and continue to be unable to establish and maintain effective relationships. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). The Veteran himself is competent to report his personal observable symptoms of PTSD. The Veteran's friend and fellow service member is competent to report what he witnessed in his friend since 2014. The Board finds the Veteran's and the Veteran's friend's very specific account of what was observed over the years credible and probative. The Board finds no reason to doubt the credibility or competency of the Veteran's or his friend's reports. In sum, reviewing the evidence in light most favorable to the Veteran and resolving reasonable doubt in his favor, the preponderance of the probative lay and medical evidence shows that for the entire appeal period, the Veteran's PTSD produced symptoms of such severity, duration, or frequency to result in occupational and social impairments with deficiencies in the areas of mood, relationships, and judgment, or "most areas." Therefore, a 70 percent rating for his PTSD is warranted from February 14, 2014. However, the Board finds that for the entire appeal period, a rating of 100 percent is not warranted, as the evidence does not show total social or occupational impairment. The Veteran's disability picture taken as a whole generally does not show symptomatology of the severity, frequency, or duration consistent with a 100 percent disability rating, such as persistent delusions or hallucinations, persistent danger to self or others, inability to remember his own name, grossly inappropriate behavior, or inability to maintain personal hygiene. The record reflects that he is generally fully oriented to place and time and he reports he has no trouble maintaining his personal hygiene. As to social impairment, the Veteran's high level of self-isolating and ability to maintain only one long-term friendship is contemplated by a 70 percent rating, which reflects "an inability to establish or maintain effective relationships." The fact that he has maintained his one friendship throughout the appeal period shows that while he has a deficiency in the area of relationships, he is not totally socially impaired. For these reasons, the evidence does not support a finding of total social impairment or symptoms warranting a rating higher than 70 percent. A 70 percent rating, but no higher, is granted effective February 14, 2014. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.