Citation Nr: 23052166 Decision Date: 09/21/23 Archive Date: 09/21/23 DOCKET NO. 20-09 723 DATE: September 21, 2023 ORDER Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD manifested in occupational and social impairment with deficiencies in most areas due to symptoms such as inability to establish and maintain effective relationships, impaired impulse control, and difficulty in adapting to stressful circumstances. CONCLUSION OF LAW The criteria for a disability rating of 70 percent (but no higher) for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411 (2023). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2007 to May 2008, December 2009 to May 2010, and February 2011 to March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is in the record. That same month, the Board remanded this matter for additional development. In an October 2021 rating decision, the RO increased the Veteran's rating for PTSD to 70 percent, effective May 17, 2021. As this does not constitute a full grant of the benefit sought on appeal, this claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to a 70 percent rating, but no higher, for PTSD Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the evidence is not in approximate balance or nearly equal in the Veteran's favor, the claim must be denied. See generally Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed. Cir. 2021). The Veteran's PTSD is currently rated as 50 percent disabling prior to May 17, 2021, and 70 percent thereafter under the General Rating Formula for Mental Disorders (General Formula). A 50 percent rating is assigned where there is occupational and social impairment with reduced reliability and productivity due to 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. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be due to symptoms such 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. A 100 percent rating is assigned for total occupational and social impairment, due to symptoms 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; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9411. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency, and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). During his October 2017 VA PTSD examination, the Veteran reported using alcohol to self-medicate his PTSD symptoms. He described his marriage of two years and his relationship with his children as "good." He reported having several military friends, socializing with family, and getting along with neighbors in his community. He did not "do much" and did not belong to any organizations. He stated that he got along with coworkers and supervisors and "keeps to himself." He denied any suicide attempts. Despite his report above, the Veteran also reported experiencing recurrent distressing dreams, dissociative reactions, and intense or prolonged psychological distress at exposure/marked physiological reactions to internal and external cues. He experienced a persistent negative emotional state, had markedly diminished interest or participation in significant activities, felt detached/estranged from others, and had a persistent inability to experience positive emotions. His behavior was irritable, and he experienced angry outbursts, had reckless or self-destructive behavior, was hypervigilant with an exaggerated startle response, and experienced problems with concentration and sleep disturbances. Additional symptoms included depressed mood, anxiety, suspiciousness, mild memory loss, disturbances of motivation and mood, and impaired impulse control. He explained that he recently broke his phone after throwing it against the wall. He also explained that he avoids seeing family members, has lost interest in playing sports, and takes unnecessary risks at work, even breaking safety rules, to get a job done. The examiner determined that the Veteran was able to work full time with no significant time lost from work and no disciplinary actions, that he maintained several close relationships, including a good marriage of two years, and that he generally functioned "adequately" despite his PTSD causing a decreased quality of life. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. During his May 2021 Board hearing, the Veteran testified as to his level of suspiciousness and hypervigilance, often scanning every location he is in, choosing where and how to park his car, searching for improvised explosive devices, and analyzing people and places to an extreme extent. He refuses to park anywhere where there are more than two routes in his direction, and constantly walks with his hand on his knife. He sits in complete silence in his car to "maximize [his] control, to listen to [his] environment, to ensure what [he is] hearing is what [he] can see." He and his wife argued about him being overbearing with "heightened awareness and everything like that." He avoids interactions with others, especially those coming too close, and recalled a situation when he grabbed a woman who accidentally bumped into him at a store. He tries to control every situation for he and his family and relies on alcohol to self-medicate. He testified as to worsening psychiatric conditions and stated that his wife gave him an ultimatum to go seek help around 2018 or 2019. The Veteran also testified that he began making adjustments at work, inspecting job sites from his car instead of walking around the site. He described his marriage and his relationship with his children as strained, and found it difficult interacting with them. His obsessional rituals make "normal functions a lot harder" and interfere with his normal functioning; he also provided testimony as to his impulsivity. He only kept in touch with an "extremely small" circle of friends, mainly people he served who now serve as a support system. The Board remanded this matter in May 2021 following a Board hearing. Based on the results of the July 2021 VA examination, the RO granted a 70 percent rating for PTSD effective May 17, 2021. The effective date was based on the Veteran's reports that his "symptoms had worsened at [his Board] hearing of May 17, 2021." The RO found that a 70 percent rating was warranted based on the Veteran's anxiety, chronic sleep impairment, depressed mood, difficulty in adapting to a worklike setting, stressful circumstances, and work; difficulty in establishing and maintaining effective work and social relationships; disturbances of motivation and mood; forgetting directions, names, and recent events; inability to establish and maintain effective relationships; mild memory loss; occupational and social impairment with reduced reliability and productivity; and suspiciousness. Although the Veteran testified during his May 2021 hearing that his PTSD symptoms worsened, the Board finds that his symptoms warrant a 70 percent rating throughout the appeal period. The Board finds significant the Veteran's reports of impaired impulse control, drinking to excess, and isolation/avoidance. Although he does not exhibit symptoms such as illogical speech, disorientation or near-continuous panic, the symptoms listed in the General Rating Formula are non-exhaustive; the overall severity of his symptoms, particularly his history of outbursts of anger and irritation warrant a 70 percent rating. The Veteran's attorney stated at the hearing that the Veteran would be satisfied with a 70 percent evaluation. See May 2021 Board hearing. Thus, the Board considers this decision a full grant of the benefit sought. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.