Citation Nr: 22016355 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-14 844 DATE: March 22, 2022 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from October 2, 2018 is denied. FINDING OF FACT From October 2, 2018, the Veteran's PTSD has not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 70 percent for PTSD have not been met from October 2, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1967 to November 1969. This appeal comes to the Board of Veterans' Appeals (the Board) from an April 2015 rating decision in which the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for PTSD effective November 18, 2014. An initial 30 percent rating was assigned. The Veteran appealed the assigned rating. Over the course of the appeal, the Veteran's evaluation for PTSD was increased to 70 percent, effective October 2, 2018. This issue was most recently before the Board in August 2021. The Board denied entitlement to an initial rating in excess of 30 percent for PTSD prior to October 2, 2018. The Board also remanded the issue of entitlement to a rating in excess of 70 percent for PTSD from October 2, 2018, as the Veteran alleged that his symptoms had worsened since the October 2018 Department of Veterans Affairs (VA) examination. A new examination was performed in December 2021, and the matter has now returned to the Board for adjudication. Disability ratings are determined in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). PTSD is rated under the General Formula for Mental Disorders (General Formula). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. 38 C.F.R. § 4.130; Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). 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, 114-18 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's PTSD symptoms have caused the level of impairment required for a disability rating of 100 percent from October 2, 2018. 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 oneself 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. In the Veteran's October 2018 VA examination report, December 2021 VA examination report, VA treatment records, and lay statements, he reported symptoms associated with a 70 percent rating, including obsessional rituals that interfere with routine activities, impaired impulse control (such as unprovoked irritability with periods of violence), and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran further experienced symptoms associated with lower ratings, like depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), impairment of short- and long-term memory (for example, retention of only highly-learned material, while forgetting to complete tasks), flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran did not report the presence of any symptoms associated with a 100 percent rating during the October 2018 VA examination. 38 C.F.R. § 4.130, Diagnostic Code 9411. In addition to the symptoms listed under the General Formula, the Veteran has also experienced a number of unlisted symptoms. These include intrusive memories, traumatic nightmares, physiological reactivity (particularly to smells), avoidance of external reminders, alienation from others, constricted affect, anhedonia, diminished interest in activities, difficulty concentrating and variable attention, obsessive hypervigilance, exaggerated startle response, fatigue, feelings of worthlessness, guilt, and shame, avoiding thoughts and feelings, paranoia, and avoidance of crowded places. Many of these unlisted synonyms are similar in nature to those associated with ratings of 70 percent and below under the General Formula. 38 C.F.R. § 4.130, Diagnostic Code 9411. For instance, alienation from others is similar to the inability to establish and maintain effective relationships, which is associated with a 70 percent rating. Other symptoms, like intrusive memories, physiological reactivity, obsessive hypervigilance, exaggerated startle response, and paranoia, are similar to anxiety and suspiciousness as contemplated by a 30 percent evaluation under the General Formula. Overall, 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. While the Veteran reported that his unlisted symptoms have worsened in frequency, duration, and intensity since his prior VA examination in June 2017, the October 2018 examination report also indicated that he experiences relief of his symptoms from psychotherapy and medication. Furthermore, while the Veteran states that he has experienced increased anxiety and startling following two motor vehicle accidents between 2019 and 2020, he nevertheless has repeatedly endorsed that his mood and PTSD symptoms were "stable" in VA treatment records since October 2018. Ultimately, the Board finds the level of impairment caused by the Veteran's symptoms, both listed and unlisted, 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, but the evidence does not show that he experiences total occupational and social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411. Regarding occupational impairment, VA examinations indicate that the Veteran is not currently working. However, his VA treatment records specify that the Veteran retired from his job in heating and air conditioning wholesale in September 2011. There is no indication in the record that his retirement was related in any way to the symptoms of his service-connected PTSD symptoms, nor is there evidence suggesting that his PTSD affected his employment such that it caused total occupational impairment from October 2, 2018. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran's PTSD has also not resulted in total social impairment. He reported in October 2018 having "few friends, limited leisure time activity, and a very limited social life." More recently, during his most recent VA examination in December 2021, he endorsed a supportive relationship with his wife and a close relationship with his daughter and granddaughter, although he also stated that he tries to avoid his son and that he does not have a positive relationship with his brother. He also stated that he has a few close friends and that he visits his mother to assist her frequently. While he has not been as active recently and spends much of his time at home, the Veteran attributed this change to the COVID-19 pandemic rather than his PTSD symptoms. The December 2021 VA examiner noted that there was no change in the Veteran's social functioning between the October 2018 examination and the December 2021 examination. The Veteran has clearly experienced some degree of social impairment due to the symptoms of his service-connected PTSD. However, given the positive relationships the Veteran still has with family members and friends, those symptoms have not resulted in total social impairment from October 2, 2018. 38 C.F.R. § 4.130, Diagnostic Code 9411. In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's PTSD symptoms resulted in the level of impairment required for a 100 percent rating at any point from October 2, 2018. As the evidence of record persuasively weighs against a rating in excess of 70 percent for PTSD from October 2, 2018, the benefit-of-the-doubt rule does not apply. The appeal must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.