Citation Nr: 1754479	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  13-17 812	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD), with bipolar disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

B. N. Quarles, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1987 to July 1994.

The matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Officer (RO) Denver, Colorado.  The Veteran appeared for a video conference Board hearing in August 2017 before the undersigned Veterans Law Judge.  


FINDING OF FACT

The Veteran's PTSD does not result in total social and occupational impairment.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 70 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C.A. §§ 5103, 5103A (2014); 38 C.F.R. § 3.159 (2016); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

II. Applicable Laws and Regulations

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where entitlement to compensation has already been established, and an increase in disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).  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 required for that rating; otherwise the lower rating will be assigned.  See 38 C.F.R. § 4.7.  

Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 70 percent disability rating is assigned for 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 that is 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 work-like setting); and inability to establish and maintain effective relationships.  38 C.F.R. § 4.130.

A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name.  Id.

III. Increased Rating Analysis

The Board has reviewed the Veteran's medical records and finds the Veteran's symptomatology most closely approximates a 70 percent disability rating under DC 9411.  The Veteran was afforded VA examinations for his PTSD in May 2012, July 2012, and June 2016.  The Veteran's medical records are negative for any medical finding of total occupational and social impairment.  The VA examinations did not reflect 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; disorientation of time or place; or memory loss of names of close relatives or for the veteran's own occupation or name as symptoms that applied the Veteran's diagnosis.  

The Board does note the Veteran's medical records do show suicidal ideations, including hospitalization for suicidal ideations in September 2012.  The Veteran was medically cleared the following day.  However, this symptomatology is reflected in a 70 percent disability rating.  Id.  The Veteran and his wife testified before the Board by video conference.  The Veteran's wife provided lay testimony of the Veteran exhibiting grossly inappropriate behavior, such as randomly removing all of clothes in the presence of other adults and children.  The Board finds the Veteran's wife competent to provide lay evidence as to the Veteran's symptomatology.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Board finds the Veteran symptomatology includes grossly inappropriate behavior.

Thus, the totality of the Veteran's symptoms does not meet the criteria for a 100 percent disability rating.  The medical and lay evidence of record does not show total occupational and social impairment.  The lone symptom supported by the record that is listed under the 100 percent criteria is grossly inappropriate behavior.  However, the remaining symptoms exhibited by the Veteran do not rise to the level necessary to grant the Veteran's claim for an increased rating.  Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. 

The Board notes that a TDIU rating has already been assigned, and as such, entitlement to TDIU need not be discussed under Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009).  The Board also notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD), with bipolar disorder is denied.



____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs