Citation Nr: 22012232 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-63 011 DATE: March 3, 2022 ORDER Entitlement to an evaluation in excess of 70 percent for PTSD is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service from October 1973 to October 1976 with the Army, June 1978 to October 1982 with the Air Force, January 2003 to April 2004 with the Army, and October 2008 to December 2008 with the Air Force. The Veteran also had a combination of Army National Guard and Air National Guard service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were previously remanded by the Board in an August 2021 decision. The Board finds that the RO has substantially complied with the August 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the Veteran was granted total disability due to individual unemployability in an August 2019 Board decision effective November 1, 2014. 1. Entitlement to an evaluation in excess of 70 percent for PTSD The Veteran contends that his PTSD has worsened since he was assigned a 70 percent evaluation, and that he should be in receipt of a 100 percent rating. 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 symptoms did 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 noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. The Veteran submitted his Social Security Disability records for review. The Social Security Administration found the Veteran had mild functional restriction in activities of daily living; moderate difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. The Veteran's recent VA treatment notes show largely normal mental status examinations and do not reflect total social and occupational impairment. For example, in August 2021, the Veteran was noted to be MSE showed Vet to be calm, alert, with fluent speech, a good historian, engages easily in conversation, variable mood, normal affect, polite, cooperative, not suicidal, not psychotic, organized speech and thoughts, adequate insight, attention, and with no abnormal movements. A March 2021 treatment note indicated the Veteran's mood was stable most days. An August 2020 treatment note also indicated that the Veteran was a very good historian, gave information freely, and reported stable mood most days. The Veteran was afforded a VA examination in May 2015. The examiner indicated the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran reported that he retired in October 2014 due to a violent outburst at work. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and neglect of personal appearance and hygiene. The Veteran's mental status examination was largely normal except for a flat affect and depressed mood. The examiner noted the Veteran's symptoms had not changed for intensity, frequency, or duration. The examiner also noted the Veteran experiences irritability, depression, anxiety, panic, sleep disturbance, low mood and motivation, and anhedonia. The Veteran was afforded an updated VA examination via telehealth in September 2021. The examiner concluded the Veteran had occupational and social impairment in most areas due to his service-connected PTSD. The Veteran reported worsening systems since his last C&P examination. The Veteran endorsed PTSD symptoms including irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. He also endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The Veteran's mental status examination was largely within normal limits. The examiner noted the Veteran was fully oriented with logical and linear thought; no sign of a formal thought disorder; no hallucinations, delusions, loss of reality contact, or current suicidal or homicidal ideation; speech and eye contact within normal limits; insight and judgment adequate; memory, focus, attention, and cognition within expected limits; and affect was tense with congruent mood. The examiner indicated that there were no non-listed symptoms, and the Veteran was capable of managing his own affairs. The examiner noted that the Veteran's symptoms cause significant occupational and social deficits. VA and private treatment records, the September 2021 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating (depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, neglect of personal hygiene, and difficulty adapting to stressful circumstances), and no symptoms associated with a 100 percent rating. He also had symptoms that are not listed with a specific rating, such as irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The Board finds the severity, frequency, and duration of the Veteran's unlisted 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. Further, irritable behavior, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance are similar to disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and impaired impulse control, which are contemplated by the assigned 70 (or lower) percent rating. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA and private treatment records and the September 2021 VA examination indicate that the Veteran had fully oriented with logical and linear thought; no sign of a formal thought disorder; no hallucinations, delusions, loss of reality contact, or current suicidal or homicidal ideation; speech and eye contact within normal limits; insight and judgment adequate; memory, focus, attention, and cognition within expected limits; and affect was tense with congruent mood. During the September 2021 VA examination, the Veteran reported that he continues to experience PTSD symptoms and remains in treatment for them. The Veteran's treatment notes also indicated that he was consistently well groomed. The evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability, he was not totally socially impaired. In short, the evidence of record persuasively 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. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.