RESIDUALS OF ENCEPHALITIS

Summary

The veteran, who served in the United States Army from October 2008 to May 2013, appeals the propriety of a rating reduction for traumatic brain injury (TBI) and seeks an increased rating for posttraumatic stress disorder (PTSD). The Board found the Regional Office's reduction of the TBI rating improper because the December 2020 VA examination was less thorough than the January 2013 examination that established the initial 70 percent rating, and the Veteran reported worsening memory impairment. The Board restored the 70 percent rating for TBI, effective July 1, 2021, due to the incomplete nature of the reduction examination and the lack of evidence of sustained material improvement. Regarding PTSD, the Board found the Veteran's symptoms met the criteria for a 70 percent rating, effective November 30, 2019, based on evidence from a 2018 VA examination and subsequent statements from the Veteran, his wife, and a private assessment, which indicated severe occupational and social impairment, including near-continuous panic, depression, difficulty adapting to stress, and significant impacts on work and family life. The Board determined a 100 percent rating was not warranted due to the absence of total occupational and social impairment. The appeal regarding dependency was resolved by the RO and not addressed by the Board.

Rationale

Reduction improper due to less complete VA exam; No evidence of sustained material improvement; Doubt resolved in favor of Veteran due to incomplete exam

Full Decision Text

Citation Nr: A26030304
Decision Date: 04/02/26	Archive Date: 04/02/26

DOCKET NO. 210615-166063
DATE: April 2, 2026

ORDER

The propriety of the reduction of the rating for traumatic brain injury from 70 percent to a combined 50 percent rating for posttraumatic stress disorder with traumatic brain injury, effective July 1, 2021, was improper, and the 70 percent rating for traumatic brain injury is restored. 

Entitlement to an increased rating of 70 percent, but no higher, for posttraumatic stress disorder is granted, effective November 30, 2019.

FINDINGS OF FACT

1. The Veteran's traumatic brain injury has not demonstrated sustained material improvement under the ordinary conditions of life based on a full and complete examination.

2. The severity, frequency, and duration of the Veteran's posttraumatic stress disorder symptoms more closely approximate occupational and social impairment with deficiencies in most areas but does not result in total occupational and social impairment.

CONCLUSIONS OF LAW

1. The criteria are met for restoration of a 70 percent disability rating for traumatic brain injury, effective July 1, 2021, because the reduction of the rating to a combined rating of 50 percent for posttraumatic stress disorder with traumatic brain injury, was improper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.2, 4.10, 4.13.

2. The criteria for a disability rating of 70 percent, but no higher, for posttraumatic stress disorder have been met, effective November 30, 2019.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 2008 to May 2013.

The rating decision on appeal was issued in April 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 14, 2025. This decision reflects the Board's consideration of the testimony, evidence, and information presented at the hearing, and a transcript of the hearing is in the Veteran's claims file.

As an appeal in which the Veteran requested, on the Notice of Disagreement, a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the decision on the issues on appeal, evidence submitted by the Veteran or his representative at the hearing, to include testimony provided at the hearing, and evidence submitted by the Veteran or his representative within 90 days following the hearing.  38 C.F.R. § 20.302(a).

The undersigned Veterans Law Judge who conducted the February 2025 hearing took testimony on whether the Regional Office (RO) had properly handled the Veteran's application to add a dependent to his award. The RO subsequently added the Veteran's dependent to his award in a September 2025 letter. Thus, it appears that this issue was resolved. As this issue was not on the Veteran's June 2021 Notice of Disagreement, the Board will not make a formal finding or conclusion of law regarding the dependency application. 

1. Rating Reduction for Traumatic Brain Injury (TBI)

Historically, in a July 2013 rating decision, the RO granted service connection for TBI assigning a 70 percent rating, effective May 6, 2013; and posttraumatic stress disorder (PTSD) assigning a 50 percent rating, effective May 6, 2013. The RO also granted service connection for migraine headaches assigning a 10 percent rating, effective May 6, 2013. In a December 2018 rating decision, these ratings were confirmed.

On November 30, 2020, the RO initiated a request for VA examinations to address the Veteran's TBI and migraine headaches. Based on these examinations, in January 2021 the RO sent a letter to the Veteran noting that there was some improvement in the TBI and migraine headaches and proposed to reduce the rating for the Veteran's TBI and combine it with the 50 percent rating for PTSD. The RO noted that this
umatic stress disorder (PTSD) assigning a 50 percent rating, effective May 6, 2013. The RO also granted service connection for migraine headaches assigning a 10 percent rating, effective May 6, 2013. In a December 2018 rating decision, these ratings were confirmed.

On November 30, 2020, the RO initiated a request for VA examinations to address the Veteran's TBI and migraine headaches. Based on these examinations, in January 2021 the RO sent a letter to the Veteran noting that there was some improvement in the TBI and migraine headaches and proposed to reduce the rating for the Veteran's TBI and combine it with the 50 percent rating for PTSD. The RO noted that this would result in an overall reduction in the combined rating for all of his service-connected disabilities from 100 percent to 90 percent. The RO also notified the Veteran of his right to request a personal hearing within 30 days of the letter and to submit evidence within 60 days. In the April 2021 rating decision on appeal, the RO reduced the rating for TBI and combined it with the 50 percent rating for PTSD, effective July 1, 2021.

In the June 2021 Notice of Disagreement, the Veteran noted the issue he was appealing as "Denial to an Increase To PTSD Rating." At the February 2025 Board hearing, the Veteran testified that his PTSD symptoms had worsened since his last examination in 2018. See February 2025 Board hearing transcript, p. 4. The Veterans Law Judge also framed the issue as involving the reduction of the TBI rating as part of the Veteran's increased rating claim for PTSD. Id. at 2.

Based on the Veteran's statements and testimony the Board has framed the issues as propriety of the rating reduction for the TBI and an increased rating claim for PTSD (which will be addressed in the next section).

Unlike in claims for increased ratings, when the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993).

The criteria governing certain rating reductions for certain service-connected disabilities are found under 38 C.F.R. § 3.344. If a disability rating has been continued at the same level for long periods, i.e., five years or more, VA may not reduce the evaluation based on examinations less full and complete than those on which payments were authorized or continued, and only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. 38 C.F.R. § 3.344(a). If doubt remains after consideration is given to all the evidence, then the rating in effect will be continued. 38 C.F.R. § 3.344(b). When a disability has not become stable and is likely to improve, and the disability rating has not continued at the same level for at least five years, a reexamination disclosing improvement in that disability will warrant a reduction in its rating. 38 C.F.R. § 3.344(c). The duration of the disability rating at issue is measured by the effective date assigned for that rating until the effective date of the actual reduction. Brown v. Brown, 5 Vet. App. 413, 418 (1993).

Prior to reducing a veteran's disability rating, however, VA must comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. These provisions require that VA rating reductions, as with all VA rating decisions, be based on review of the entire history of the disability. Faust v. West, 13 Vet. App. 342, 349 (2000) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, Brown, 5 Vet. App. at 420; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)).

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288, 
 all VA rating decisions, be based on review of the entire history of the disability. Faust v. West, 13 Vet. App. 342, 349 (2000) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, Brown, 5 Vet. App. at 420; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)).

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288, 292 (1999) (including cases cited therein). Not only must it be determined that an improvement in a disability has actually occurred, but it must also be shown that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; Schafrath, 1 Vet. App. at 594 (1991).

In addition, the RO is required to notify the Veteran at his latest address that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). When a veteran's disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

In the present appeal, the Veteran's 70 percent rating for his TBI had been in effect for more than five years at the time the reduction took place, as the initial rating was effective May 6, 2013, and the reduction was effective July 1, 2021. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) apply and the reduction is not proper unless the examination on which the reduction is based is full and complete, and if there is evidence of sustained material improvement under ordinary conditions of life.

Also, given that the reduction in the rating for TBI resulted in a reduction in the overall combined disability rating from 100 percent to 90 percent, effective July 1, 2021, the procedures of 38 C.F.R. § 3.105 were required. The RO followed these procedures as described above, by notifying the Veteran in January 2021 of his right to a personal hearing and giving the Veteran 60 days to present additional evidence before reducing the ratings in the April 2021 rating decision. (Also of note, after the RO granted an increased rating of 50 percent for migraine headaches in a July 2021 rating decision, the Veteran's combined rating for all of his service-connected disabilities went back up to 100 percent, effective May 6, 2013.) 

As the procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions were followed, the next issue is whether the reduction in the disability rating for the TBI was proper. 

In the present case, the evidence of record does not show that the Veteran's TBI had sustained material improvement under ordinary conditions of life based on a full and complete examination. 

TBI is typically rated under 38 C.F.R. § 4.124a, Diagnostic Code 8045 for residuals of a TBI. This diagnostic code provides for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045.

Diagnostic Code 8045 provides a table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. 38 C.F.R. § 4.124a, Diagnostic Code 8045. This table contains 10 facets of TBI related to cognitive impairment and subjective symptoms; it provides criteria for levels of impairment for each facet, as appropriate, ranging from zero (0) to three (3), and a 5th level, the highest level of impairment, labeled "total." Id. Not every facet has every level of severity. A 100 percent evaluation is assigned if "total" is the level of any evaluation for one or more facets. Id. If no facet
 Code 8045.

Diagnostic Code 8045 provides a table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. 38 C.F.R. § 4.124a, Diagnostic Code 8045. This table contains 10 facets of TBI related to cognitive impairment and subjective symptoms; it provides criteria for levels of impairment for each facet, as appropriate, ranging from zero (0) to three (3), and a 5th level, the highest level of impairment, labeled "total." Id. Not every facet has every level of severity. A 100 percent evaluation is assigned if "total" is the level of any evaluation for one or more facets. Id. If no facet is evaluated as "total," then an overall percentage is assigned based on the highest level of any facet. Id. If zero is the highest facet, a zero percent evaluation is assigned; if one is the highest facet, a 10 percent evaluation is assigned; if two is the highest facet, a 40 percent evaluation is assigned, and; if three is the highest facet, a 70 percent evaluation is assigned. Id.

Note (1) following Diagnostic Code 8045 provides for the assignment of ratings when there is overlap of manifestations from a TBI and other disabilities, to include a comorbid mental disorder. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning. If the manifestations of the disabilities are clearly separable, a separate evaluation is assigned for each condition. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1).

Note (2) following Diagnostic Code 8045 provides that symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (2).

In addressing the evidence of record, even though the reduction matter was initiated by the RO's November 30, 2020 request for a VA examination, in order to understand the history of the Veteran's TBI, the Board will address the January 2013 pre-discharge VA examination report, which was the basis for the assignment of the initial 70 percent rating for TBI, effective May 6, 2013. 

A January 2013 VA TBI examination report shows that the Veteran had objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. He had mildly impaired judgment. His motor activity was normal most of the time but mildly slowed at times due apraxia. He had mildly impaired visual spatial orientation. He had three or more subjective symptoms that mildly interfered with work. He also had one or more neurobehavioral effects that occasionally interfered with workplace interaction, social interaction, or both, but did not preclude them. It was noted that neuropsychological testing had been performed in making these assessments.

In the July 2013 rating decision that granted service connection for TBI, the RO assigned a 70 percent rating based on the level 3 facet of impairment in memory, attention, concentration, and executive function. The RO also noted that since there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination.

An October 2018 VA TBI examination report shows that the Veteran's TBI resulted from a history of at least two impacts to the head and body during parachute jumps. The examiner noted that one of these injuries reportedly caused loss of consciousness for about one minute, feeling dazed, dizziness, and blurry vision. The examiner indicated that clinical records documented reduced cognitive functions following the injury with mild to moderate deficits in verbal and visual processing, mental flexibility, and short-term memory. The Veteran currently reported reduced cognitive efficiency at work, moderate symptoms of pain, migraine, and insomnia. The examiner found that the current cognitive screen did not indicate marked impairment, although the Veteran had some difficulty on a few tasks consistent with his post-concussive symptoms. The assessment of facets of TBI-related cognitive impairment and subjective symptoms showed a complaint of mild memory loss and some delayed recall. Socially, it was noted that the Veteran was married with a child and was close with his brother but did not hang out with friends very often. Occupationally, the Veteran worked in building maintenance. 

A November 2018 addendum statement from a neuropsychologist found that based on the current evaluation, the Veteran's neurocognitive profile did not meet the diagnostic criteria for a neurocognitive disorder. The examiner commented that the Veteran did demonstrate some variability in memory performance, which appeared to be impacting his day-to-day functioning somewhat. However, the neuropsychologist found that
 with his post-concussive symptoms. The assessment of facets of TBI-related cognitive impairment and subjective symptoms showed a complaint of mild memory loss and some delayed recall. Socially, it was noted that the Veteran was married with a child and was close with his brother but did not hang out with friends very often. Occupationally, the Veteran worked in building maintenance. 

A November 2018 addendum statement from a neuropsychologist found that based on the current evaluation, the Veteran's neurocognitive profile did not meet the diagnostic criteria for a neurocognitive disorder. The examiner commented that the Veteran did demonstrate some variability in memory performance, which appeared to be impacting his day-to-day functioning somewhat. However, the neuropsychologist found that this demonstration of cognitive inefficiency was most likely related to a combination of factors: his current mental health symptoms from PTSD, history of multiple concussive injuries, history of obstructive sleep apnea, and history of childhood dyslexia. 

In a December 2018 rating decision, the RO kept the level of impairment for the Veteran's TBI at a 70 percent rating. The RO noted that although recent evidence showed some improvement, sustained improvement had not been definitively established under 38 C.F.R. § 3.344.

After the RO initiated another examination, a December 2020 VA TBI examination noted that the examination was approved via telehealth and the Veteran's records were reviewed. The examiner noted the findings on the October 2018 VA examination and supplemental November 2018 statement. The Veteran reported that since the previous TBI evaluation in October 2018 his symptoms of headaches and fatigue were stable, but he felt that his memory disturbance had been getting worse. The facets of TBI-related cognitive impairment and subjective symptoms of TBI included a complaint of mild memory loss, and headaches and fatigue. The examiner noted that similar to the findings in November 2018, it was the examiner's opinion that the Veteran's memory disturbance was less likely than not related to his mild TBI and more likely than not related to his current mental health issues (including PTSD and anxiety), sleep disturbances, and history of childhood dyslexia.

When comparing the October 2018 and December 2020 VA examination reports, with the original January 2013 pre-discharge examination report, the level of severity associated with the TBI is lower on the more recent examinations. Specifically, the October 2018 and December 2020 VA examination reports show that the highest facet of impairment due to the TBI is at most level 2 for objective evidence of mild memory impairment, which would warrant a 40 percent rating under Diagnostic Code 8045; and possibly as low as level 1 for only subjective mild memory loss, which would warrant a 10 percent rating under Diagnostic Code 8045. 

On review of the completeness of the examinations, however, the December 2020 VA examination report does not provide the full and complete neuropsychological assessment as was conducted on the original examination in January 2013 to determine the actual severity of the Veteran's TBI. Even though the October 2018 VA examination report provided extensive neuropsychological testing, the December 2020 VA examiner did not. The December 2020 VA examiner noted that the neuropsychological testing results from October 2018 were used as the assessment for the Veteran's TBI and did not provide any updated neuropsychological testing to verify whether there had been sustained improvement in the Veteran's TBI. The Veteran, in fact, had complained of worsening memory impairment. The December 2020 VA examiner determined that based on the findings in October 2018, the Veteran's memory impairment was more likely than not related to his PTSD but did not do any independent assessments of the Veteran's TBI residuals to confirm this finding in December 2020. Specifically, under Diagnostic Code 8045, objective evidence on testing of moderate impairment of memory would result in a level 3 facet of impairment, which would warrant a 70 percent rating for TBI. Without any objective testing performed on the December 2020 VA examination, the examination is less full and complete than the examination used to assess the original 70 percent rating on examination in January 2013.

As noted for any reduction case for a rating that has been in effect for more than five years, as is the case for the Veteran's TBI rating, VA may not reduce the evaluation based on examinations less full and complete than those on which payments were authorized or continued. Moreover, only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. 38 C.F.R. § 3.344(a). As the December 2020 VA examination report, which was used as the basis for the rating reduction, was not a thorough examination and did not provide the same level of neuropsychological testing that
 assess the original 70 percent rating on examination in January 2013.

As noted for any reduction case for a rating that has been in effect for more than five years, as is the case for the Veteran's TBI rating, VA may not reduce the evaluation based on examinations less full and complete than those on which payments were authorized or continued. Moreover, only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. 38 C.F.R. § 3.344(a). As the December 2020 VA examination report, which was used as the basis for the rating reduction, was not a thorough examination and did not provide the same level of neuropsychological testing that had been provided in January 2013, it is considered less full and complete. Without a full neuropsychological testing of the Veteran's TBI it is unclear if there has been sustained material improvement under ordinary conditions of life. 

As noted, if doubt remains, after due consideration of all the evidence, the rating agency will continue the rating in effect. See 38 C.F.R. § 3.44(b). In this case, it is unclear whether the Veteran's TBI residuals have had sustained improvement since it was last evaluated in 2018 because of the incomplete nature of the most recent December 2020 VA examination report. Under these circumstances, the original rating should be continued. Therefore, the rating reduction was improper. The 70 percent disability rating for TBI, effective July 1, 2021, is restored. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (improper reduction reinstated effective date of reduction).

2. Increased Rating for PTSD

The Veteran did not file an increased rating claim in this appeal. The RO initiated this claim on November 30, 2020 by requesting a routine VA examination to address the severity of the Veteran's PTSD. Nonetheless, the Veteran has communicated that he is seeking entitlement to an increased rating for PTSD. See June 2021 Notice of Disagreement. The Veteran has a 50 percent rating for PTSD. Thus, the determinative issue is whether a rating higher than 50 percent is warranted. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time
 is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509.

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 70 percent or higher.

The Board concludes that the Veteran's PTSD symptoms caused the level of impairment required for a disability rating of 70 percent, but not higher, effective November 30, 2019, one year prior to the RO's initiating this claim on November 30, 2020.

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.

Turning to the evidence of record, even though the rating period was initiated on November 30, 2020, in order to understand the history of the Veteran's PTSD, the Board finds it important to note findings on an October 2018 VA examination report, which shows that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. A November 2018 amended comment from the examiner also notes that the Veteran's symptoms of PTSD symptoms were severe and disabling.

The criteria for a 70 percent
 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.

Turning to the evidence of record, even though the rating period was initiated on November 30, 2020, in order to understand the history of the Veteran's PTSD, the Board finds it important to note findings on an October 2018 VA examination report, which shows that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. A November 2018 amended comment from the examiner also notes that the Veteran's symptoms of PTSD symptoms were severe and disabling.

The criteria for a 70 percent rating for PTSD are met when there are symptoms that result in deficiencies in most areas, such as work, school, family relations, judgment, and thinking, or mood. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Therefore, the Veteran's PTSD met the criteria for a 70 percent rating based on the findings on the October 2018 VA examination report. 

The December 2020 VA PTSD summary notes that the Veteran met the DSM-5 criteria for PTSD, which included symptoms of insomnia, anxiety, and depressive symptoms. The examiner found that the symptoms of PTSD had worsened significantly since the prior VA examination, but also, provided a seemingly contradictive finding that the Veteran's PTSD symptoms remained significant to the same degree as before. The Veteran reportedly had intrusive memories of traumatic events, slept about five hours per night with dreams of severe danger almost every night, irritability, which impaired his ability to have smooth relationships socially and with co-workers, depression and anxiety that prevented motivation and completion of tasks at work, and isolation from others and detachment.

The Veteran submitted a copy of a January 2021 private assessment that notes that the Veteran was referred for treatment for PTSD and that he still suffered from very frequent and multiple triggers and had trouble sleeping and nightmares.

The Veteran and his wife submitted statements in February 2021 that the Veteran had a baby on the way and was worried all the time about being fired due to the severity of the PTSD symptoms impacting his ability to function at work. He stated that there were many days where he felt like he just could not do another day at work, but he forced himself knowing that he had to support his family. He noted that every day he would struggle with severe triggers such as screaming, which took him back to his time in Haiti, and loud booms, which took him back to Iraq which he noted was a very dark time in his life. He stated that he did not trust anyone, which had severely impacted his marriage and almost ended it. He stated that he had enormous amount of sadness that would never go away, which was caused by his deployments. He also stated that his PTSD had been so impactful that there were days he just could not go into work because he was in tears from a nightmare or memory or had an upset stomach from the adrenaline rush of the bad memories. See February 2021 VA Form 21-4138 Statement in Support of Claim.

The Veteran's wife stated that the Veteran's PTSD symptoms had severely impacted their family in that when their first baby was born the sound of crying would trigger memories from his deployment in Haiti where he witnessed death of civilians. The Veteran also was constantly worried their baby would die of sudden infant death syndrome, which caused a lot of stress for both of them. She stated that the Veteran struggled with sleep and depression and had to take a lot of sick days from work and at one point was almost fired because of his symptoms. She also stated that the severity of the Veteran's symptoms had taken a toll on their marriage. She stated that his symptoms affected not only his family but also his employment and that he struggled at work, was depressed every day, suffered from severe anxiety, could not sleep, and was angry all the time. The Veteran's wife indicated the Veteran's PSTD symptoms were severe, which she had witnessed firsthand. Id. 

In addition, the Veteran submitted a separate statement in February 2021 that the findings on the December 2020 VA PTSD summary supported a 70 percent rating for his PTSD based on the level of occupational and social impairment described. See February 2021 VA Form 21-4138 Statement in Support of Claim.

The Veteran also testified at the February 2025 Board hearing that his PTSD symptoms had worsened since his last examination in 2018. See February 2025 Board hearing transcript, p. 4. Specifically, he testified that he had a hard time focusing, did not have many friends, struggled with sadness daily, and had a hard time sleeping. Id. He indicated that sometimes at work he would get frazzled and could not focus on anything and would be triggered by screaming or some intrusive memory. Id
 the December 2020 VA PTSD summary supported a 70 percent rating for his PTSD based on the level of occupational and social impairment described. See February 2021 VA Form 21-4138 Statement in Support of Claim.

The Veteran also testified at the February 2025 Board hearing that his PTSD symptoms had worsened since his last examination in 2018. See February 2025 Board hearing transcript, p. 4. Specifically, he testified that he had a hard time focusing, did not have many friends, struggled with sadness daily, and had a hard time sleeping. Id. He indicated that sometimes at work he would get frazzled and could not focus on anything and would be triggered by screaming or some intrusive memory. Id. at 5. He stated that his symptoms had not improved. Id. He testified that he could not sleep until he checked the doors a couple of times and had a hard time relaxing so he would walk around the house and make sure probably two or three times that everything was locked. Id. at 7. He also stated that since 2021 his symptoms definitely had not gotten better and that his symptoms had caused a huge rift in his life as he tried to put the pieces back together. Id. 

On review of the evidence of record, the Board finds that the next higher rating of 70 percent is warranted for his PTSD symptoms, which result in deficiencies in most areas, obsessional rituals, depression, anxiety, and severe impairment impacting his family life and his work. He is shown to have near-continuous panic and depression and difficulty adapting to stressful circumstances, as he described difficulty with having a newborn and excessive worry about whether his environment was safe for him and his family. He also reported having to take leave from work due to the severity of his PTSD symptoms and feeling constant sadness. The Veteran's wife also stated that she had witnessed the Veteran be angry all the time, and that he struggled with sleep and depression, which impacted his ability to work and his family. Overall, the Veteran's PTSD results in severe symptoms meeting the criteria for a 70 percent rating under Diagnostic Code 9411.

As for the effective date of the 70 percent rating, given that the Veteran did not file an increased rating claim in this case, the Board will use the date of the claim of November 30, 2020, that the RO used to initiate the routine examination to evaluate the Veteran's PTSD. The medical evidence in this case supports that a 70 percent rating was warranted for the Veteran's PTSD as of the date of the October 2018 VA examination report. Nonetheless, as the date of the claim is not until November 30, 2020, the Board will apply the one-year "look-back" period and apply the effective date of November 30, 2019, for the award of the 70 percent rating for PTSD. See 38 C.F.R. § 3.400(o)(2) (for increased rating claims the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise, date of receipt of claim).

The next higher 100 percent rating is not warranted for the Veteran's PTSD, as he does not have total occupational and social impairment. Socially, it was noted that the Veteran was married with children and was close to his brother but did not hang out with friends very often. While the Veteran and his wife have stated that his PTSD symptoms have severely impacted his family and the Veteran reportedly would isolate himself, he is not shown to be totally socially impaired. Occupationally, the Veteran worked in building maintenance. He described worrying about losing his job due to his PTSD symptoms but did not indicate that he was fired or unable to work due to his PTSD. Again, while the Veteran's PTSD symptoms impact his ability to work and get along with co-workers, he is not totally occupationally impaired. 

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The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating for his PTSD, but no higher. The evidence persuasively weighs against a 100 percent rating for the Veteran's PTSD. Therefore, to the extent that a 100 percent rating is not assigned, the benefit-of-the-doubt doctrine does not change this outcome. See Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

 

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sarah Richmond, Counsel

The