Citation Nr: 24006992 Decision Date: 02/08/24 Archive Date: 02/08/24 DOCKET NO. 17-60 164 DATE: February 8, 2024 ORDER A rating of 70 percent, but no higher, for PTSD is granted effective December 4, 2015. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD is manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSION OF LAW From December 4, 2015, the criteria for a rating of 70 percent, but no higher, for PTSD have been met from the date of service connection. 38 U.S.C. §§?1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to April 1969 and from May 1970 to January 1971. The Veteran served in the Republic of Vietnam and was awarded the Purple Heart. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision issued in April 2016 by a Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction. The Board remanded this matter for additional development in June 2019 and November 2021. In July 2022, the Board denied the Veteran's claim for a rating in excess of 50 percent for his PTSD. Subsequently, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) and an April 2023 Order granted the parties' Joint Motion for Remand (JMR), and the Court vacated the July 2022 decision. In July 2023, the Board remanded the matter for additional development pursuant to the JMR. The matter now returns to the Board for adjudication. Entitlement to a rating in excess of 50 percent for PTSD. The Veteran asserts the severity of his symptomatology associated with his service-connected PTSD warrants a rating higher than the one assigned. Such disability is currently evaluated as 50 percent disabling. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38?C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38?C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The appeal period before the Board stems from the Veteran's December 4, 2015, increased rating claim, plus the one-year look-back period. Gaston v. Shinseki,?605 F.3d 979, 982?(Fed. Cir. 2010). For the entire appeal period, he is in receipt of a 50 percent rating for PTSD under Diagnostic Code 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. The General Rating Formula, in pertinent part, provides a 50 percent rating 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 warranted when there is 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38?C.F.R.?§ 4.126(a). With respect to the Veteran's psychiatric symptomatology during such period, at the February 2016 VA examination the Veteran reported increased nightmares, obsessive thoughts, and violent images in the prior year. He reported his nightmares include arguing and fighting with others and that he had started to feel depressed, irritable, and experiencing a relapse of psychiatric symptoms which led to his request for an increased rating. The examination reflects the Veteran's psychiatric symptoms include sadness, irritability, anhedonia, hopelessness, insomnia, poor concentration, social isolation, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The Veteran was well-oriented and did not express any suicidal or homicidal intent but did express his anticipation of negative events happening to him. The Veteran reported having a good relationship with his wife but described his relationship with his adult children as strained. An April 2016 VA treatment record reflects the Veteran's reports of intrusive memories, avoidance, poor concentration, irritability, and dullness. Upon VA examination in July 2016, the Veteran's PTSD symptoms included anxiety; chronic sleep impairment; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted the Veteran exhibited no evidence of delusion or hallucination; denied suicidal or homicidal ideation; and was fully oriented. However, the examiner indicated that the Veteran presented some recent memory difficulties. The examiner also indicated the Veteran experiences recurrent, involuntary, and intrusive distressing memories of the traumatic events as well as recurrent distressing dreams. The Veteran also exhibited markedly diminished interest or participation in significant activities; feelings of detachment from others; and irritable behavior and angry outburst, with little to no provocation, expressed as verbal or physical aggression toward people or objects. The examiner noted that the Veteran's condition is chronic but stable but that his mood instability can limit his capacity to interact effectively on a sustained basis with other individuals. As noted in the JMR, an August 2016 VA treatment record reflects the Veteran's report of depressive symptoms, poor tolerance, low motivation and energy, difficulty maintaining his hygiene, nightmares, and anxiety. He was observed to have adequate hygiene, but the social worker noted he had not shaved his head which was unusual for the Veteran. On mental status examination, the Veteran exhibited logical, coherent, and relevant thought processes; fluid speech; normal judgment and insight; and no perceptual disturbance or disruptive behavior. A September 2016 VA treatment record reflects the Veteran's report of marital conflict with his wife. An April 2017 VA treatment record states that the Veteran reported increasing recurrent memories of Vietnam; a lack of energy; irritability; sadness; and social isolation. Upon VA examination in December 2019, the Veteran reported recurrent thoughts about his military experiences, sleeping difficulties, having nightmares, and feeling anxious and irritable. The Veteran reported having a good relationship with his wife. The Veteran denied suicidal or homicidal intent; presented with coherent and logical thought processes; and was in full contact with reality. The examiner did note the Veteran's recent memory difficulties as well as the Veteran's depressed mood; chronic sleep impairment; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or worklike setting. The Veteran's problems with concentration were also noted. The examiner agreed with the July 2016 VA examiner's assessment that the Veteran's condition is chronic but stable, but that his mood instability can limit his capacity to interact effectively on a sustained basis with other individuals. Upon VA examination in September 2023, the Veteran's PTSD symptoms included anxiety; disturbances of motivation and mood; and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner noted that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner noted the Veteran denied suicidal or homicidal ideation as well as perceptual hallucinations. The evidence does not suggest, nor does the Veteran contend, that the Veteran suffers from hallucinations, issues completing activities of daily living, persistent danger of hurting himself or others, or gross impairment in thought processes or communication. The Board concludes that during the appeal period, the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent.? The Veteran did not experience or report any of the symptoms contemplated by a 100 percent rating or other symptoms not listed in the schedule that similarly reflect total occupational and social impairment. 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. Specifically, the Veteran suffers from difficulty in adapting to stressful circumstances, including work or worklike setting, impaired impulse control, and had difficulty maintaining his hygiene during the appeal period. ?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 Board notes the Veteran is in receipt of a total disability rating based on individual unemployability (TDIU) for his service-connected disabilities, including PTSD, for the entire period on appeal. The record does not reflect that unemployability is due to PTSD alone, nor has the Veteran raised this issue. Considering the evidence of record, the Board finds that the Veteran retains some level of social functioning as he has a relationship with his wife. Therefore, a rating of 70 percent, but no higher, for PTSD under DC 9411 is granted from December 4, 2015, the date of the Veteran's claim for an increased rating for PTSD. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Younan 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.