Citation Nr: 1604651 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 09-31 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to September 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Wichita, Kansas Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted an increased rating of 50 percent for the Veteran's service-connected PTSD, effective March 28, 2008 (date of claim). The Veteran disagreed with the disability rating assigned, but did not express disagreement with the effective date assigned for the 50 percent rating. The issue of whether the increased rating for PTSD was warranted prior to March 28, 2008 is therefore not before the Board. Cf. Jarvis v. West, 12 Vet. App. 559 (1999) (notice of disagreement that disagreed only with effective date did not constitute an NOD as to disability rating). In August 2010, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record. In March 2014, the Board granted an increased, 70 percent rating for PTSD for the entire appeal period, and remanded the issue of whether a higher, 100 percent schedular rating was warranted for PTSD. The Board also remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU). In April 2015, the RO granted a TDIU, effective December 1, 2011, the first day of the month following the date the Veteran indicated he had stopped working full time. As this was a complete grant of the benefit sought, the issue of entitlement to a TDIU is no longer before the Board. 38 C.F.R. § 4.16(a) (2015) (TDIU warranted when a veteran is unable to secure or follow a substantially gainful occupation). FINDING OF FACT The evidence is at least evenly balanced as to whether the symptoms of the Veteran's PTSD more nearly approximate total occupational and social impairment. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for the maximum schedular rating of 100 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation has already 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 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Here, as explained below, a uniform 100 percent rating is proper. The Veteran's PTSD is rated pursuant to 38 C.F.R. § 4.130, DC 9411. PTSD and all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. A schedular rating of 100 percent is warranted when the disorder results in 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; memory loss for names of close relatives, own occupation, or own name. The issue in this case is thus whether the Veteran's symptoms have more nearly approximated the criteria for a 100 percent rating for the entire appeal period or any portion thereof. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The evidence is at least evenly balanced as to whether the Veteran's symptoms and overall impairment have more nearly approximated the criteria for a 100 percent rating. On the April 2008 VA examination, the Veteran reported anger-related issues such as getting into arguments with co-workers and being isolative in nature. He had no interactions other than his PTSD group members who he saw during group therapy only and a cousin who lived nearby, with no activities or leisure pursuits. Although examination was mostly normal, the examiner opined that the Veteran's social and occupational functioning were significantly impaired, with his quality of life being "poor." During the Board hearing, the Veteran described physical and verbal altercations with fellow employees and inability to relax at home. The Veteran also submitted employment records showing warnings and discipline for becoming angry, confrontational, and combative with co-workers, as well as a citation for a dress code violation because he reported to work "looking extremely disheveled - unshaven, messy hair, wrinkled and dirty looking clothes." On the December 2014 VA examination, the psychiatrist who had also conducted the April 2008 VA examination noted that the Veteran continued to meet the criteria for PTSD with moderate to severe symptomatology despite treatment. She indicated that his anger and irritability, along with other factors, rendered him unemployable. The psychiatrist also noted that other than his family and fellow PTSD therapy group members, the Veteran isolated himself. The above reflects that the Veteran has had symptoms listed in the 100 percent criteria, such as persistent danger of hurting self or others as indicated by frequent confrontations with co-workers when working, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, as indicated by the work citation indicating extreme disheveled appearance. These symptoms have resulted in occupational and social impairment that has been at least evenly balanced between deficiencies in most areas and total. Moreover, the psychiatrist who performed both the April 2008 and December 2014 VA examinations indicated that the Veteran's symptoms had been of a relatively consistent nature, reflecting that they did not suddenly get worse at any particular point in the appeal period. The evidence is thus approximately evenly balanced as to whether the symptoms of the Veteran's PTSD have more nearly approximated total occupational and social impairment throughout the entire appeal period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 100 percent rating for the entire appeal period is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. As the Veteran has been granted a 100 percent rating for his PTSD, consideration of an extraschedular rating is unnecessary. Cf. Colayong v. West, 12 Vet. App. 524, 537 (1999) ("Hence, on remand the Board is required to address an extraschedular rating for the veteran's service-connected Pott's disease if it is not rated 100% as a schedular matter") (emphasis added). ORDER Entitlement to a 100 percent rating for PTSD is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ B. C. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs