Citation Nr: 22015304 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-55 072 DATE: March 17, 2022 ORDER Effective May 21, 2018, entitlement to a 70 percent disability rating, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected PTSD has more closely approximated occupational and social impairment with deficiencies in most areas throughout the appeal period. CONCLUSION OF LAW The criteria for a 70 percent disability rating, but no higher, for service-connected PTSD are met, effective May 21, 2018. 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 served on active duty in the United States Army from June 1988 to September 1995, to include service in the Southwest Asia theater of operations. In December 2019, the Board denied entitlement to a rating in excess of 50 percent for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacated the December 2019 Board denial, and remanded the matter to the Board for compliance with the JMR instructions. Following issuance of the JMR, the matter returned to the Board and in October 2021 the Board remanded the matter to the AOJ to obtain updated medical records and a VA examination. A psychiatric examination was completed in December 2021. Increased Ratings This appeal stems from the July 12, 2018, the day the Veteran's intent to file was received. The criteria for rating the Veteran's PTSD are found in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. His PTSD is currently rated under DC 9411 at 50 percent from April 21, 2015. Under DC 9411, a 70 percent rating is assigned where PTSD produces 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted where PTSD produces 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; and memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. While the diagnostic criteria set forth multiple symptoms indicative of the 70 percent level, the Court held in Bankhead v. Shulkin that "the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." 29 Vet. App. 10, 20 (2017). The Board finds that the evidence of record supports a rating of 70 percent, but no higher, for the Veteran's service-connected PTSD, effective May 21, 2018, the date of the Veteran's VA treatment wherein he reported increased symptomatology following the death of a coworker. In this regard, the Board notes that the 70 percent rating includes more criteria concerning social relationships and social functioning than the 50 percent rating. Specifically, the functional impairment clause of the 50 percent rating mentions social impairment, but focuses on reduced reliability and productivity, which speaks to occupational functioning more than social. In contrast, the functional impairment clause of the 70 percent rating includes areas such as work, school, and family relations, all of which would involve how symptoms impact social functioning and relationships. This distinction is important here as the Veteran's PTSD symptoms impact his social functioning more than occupational. As such, that evidence supports a rating of 70 percent. For example, a May 2018 VA treatment record notes the Veteran's report of increased stress and anxiety at work following the death of a coworker. He reported problems with crying for no reason, being easily irritated and angered, difficulty sleeping, and shying away from assignments at work. Another May 2018 treatment record noted the Veteran's report of anxiety and depression, as well as problems with insomnia, nightmares, and anxiety since the death of a coworker. He also reported that increased stress and marital problems have led to worsening mood and insomnia symptoms. The August 2018 VA examination indicates the Veteran endorsed feelings of numbness, estrangement from his son, and his relationship with girlfriend was negatively affected by his PTSD symptoms. The examiner further observed isolative behaviors and being estranged from his family, and difficulty in establishing and maintaining effective work and social relationships. An April 2019 VA treatment record endorses limited social interaction. A June 2019 VA treatment records endorse hypervigilance in crowded places, isolating, and cutting off relationships with people. The December 2021 VA examination noted the Veteran's PTSD was productive of detachment from others, social withdrawal, and difficulty in establishing and maintaining effective work and social relationships. In addition to the social-specific symptoms, the Veteran's records demonstrate additional PTSD symptoms that would produce impaired social and occupational functioning in most areas. In this regard, the Veteran's VA psychiatric records also endorse PTSD symptoms such as zoning out, frustration intolerance, irritability, minimal positive feelings, anger, difficulty concentrating, mild memory problems, anxiety, depression, insomnia, nightmares, and flashbacks. See generally May 2018 through January 2021 VA treatment records. A June 2019 record indicates the Veteran's PTSD impacts his day-to-day life. The December 2021 VA examination indicated the Veteran was experiencing significant anxiety and depression, low mood and motivation, sleep disturbance, irritability and angry outbursts, changes in appetite, suspiciousness, panic attacks that occur weekly or less often, mild memory loss, and difficulty adapting to stressful circumstances, including work or a worklike setting. The August 2018 VA examination indicated the Veteran's PTSD was productive of flashbacks, nightmares, low energy, loss of interest in things, depressed mood, chronic sleep impairment, and disturbances of motivation and mood. These PTSD symptoms further establish occupational and social impairment in most areas. With respect to the evidence the JMR instructed the Board to consider, the October 2018 NOD statements about seeking out "a less stressful position at work," self-isolating behavior, difficulty maintaining relationships, sleeping excessively, and worsening symptoms, are in line with the other evidence of record, discussed above, that supports a rating of 70 percent. The Board notes that although the October 2018 NOD indicates the Veteran has had "thoughts of dying," all other treatment records and psychiatric examinations of record indicate he has denied suicidal ideation. The Board finds it is not necessary, however, to consider whether the statement about "thoughts of dying" by itself supports a rating of 70 percent under Bankhead, as the Board has already found that the record supports a rating of 70 percent on other grounds. The evidence does not support a rating of 100 percent at any point during the appeal period. In this regard, the Veteran has been working a job as a border patrol officer throughout the appeal period, indicating that his PTSD is not productive of total occupational impairment, and the record does not establish other symptoms of the 100 percent level, such 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; and memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that the symptoms contained in the General Rating Formula for Mental Disorders are not exhaustive, but serve as examples of the type and degree of symptoms or effects that would justify a particular rating. Mauerhan, 16 Vet. App. at 442. Additionally, the Board has not required the presence of a specified quantity of symptoms to warrant a higher rating for a mental disorder. However, the Board finds that the type and degree of symptoms associated with the Veteran's service-connected PTSD have not resulted in total occupational and social impairment justifying a rating of 100 percent. Overall, the Veteran has demonstrated symptoms consistent with the now-assigned 70 percent rating. Accordingly, throughout the appeal period the Veteran's PTSD has been productive of symptoms that more closely approximate occupational and social impairment with deficiencies in most areas. Thus, entitlement to a 70 percent disability rating, but no higher, for service-connected PTSD is granted, effective from May 21, 2018. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.