Citation Nr: 1754719	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  09-19 540	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 


ATTORNEY FOR THE BOARD

G. Morales, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Army from April 2002 to May 2005. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

This matter was previously before the Board in March 2016 and February 2017.  On those occasions the appeal was remanded for additional development concerning the Veteran's mailing address. It has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  Indeed, the file demonstrates that efforts were undertaken to determine the Veteran's present address.  The Veteran was eventually reached and provided her address.  Despite this, correspondence sent to the address provided was returned by the postal service as undeliverable.  Reasonable efforts having been made, no further development is required.

Notably, in a March 2013 rating decision, the Veteran was granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. That same rating decision determined that the Veteran's disabilities resulted in permanent and total disability and granted eligibility to dependent's educational assistance, effective December 1, 2008. 


FINDING OF FACT

The Veteran's PTSD symptoms have not been shown to cause total social and occupational impairment.


CONCLUSION OF LAW

The criteria for an initial rating in excess 70 percent have not been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017).






REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran has not alleged any deficiencies in VA's duties to notify and assist. It will not be discussed further. As such, the Board will proceed with consideration of the Veteran's appeal. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).


Legal Criteria and Analysis

The Veteran contends that her PTSD should be compensated at a 100 percent rating. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 
5107(b); 38 C.F.R. § 4.3. 

In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). 

Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-V). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).

Under the General Rating Formula, the criteria for a 70 percent rating are: 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 a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411.

The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411.

The Veteran is competent to give evidence of symptoms observable by her senses, and the Board finds her credible as her statements are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Based on the evidence of record, the Board finds that the criteria for a rating in excess of 70 percent for PTSD symptoms have not been met. See 38 C.F.R. § 4.130, DC 9411.

The evidence shows that the Veteran's PTSD symptoms have caused impairment of social and occupational functioning with deficiencies in most areas but not total impairment. In 2007, medical treatment records indicated the Veteran was cooperative, readily engaged, and had organized thoughts. See VBMS 3/2/2007, Medical Treatment Records (MTR) at p. 10.

The Veteran's PTSD symptoms worsened in 2008. Her symptoms included avoidance of reminders, chronic anxiety, depression, emotional numbing, exaggerated startle reflex, feelings of detachment, hypervigilance, insomnia and nightmares, and memories of traumatic experiences. See VBMS 8/3/2008, MTR, at p. 3. 

Between 2008 and 2010, the Veteran occasionally suffered from delusions and paranoia; however, this was generally when she had stopped taking her medications. See VBMS 6/15/2010, MTR at p. 2. The Veteran also denied auditory or visual hallucinations other than flashbacks during this period. Id. at 3.  She reported that work was going well and that her life was good, although she still had anxiety problems. See VBMS 12/21/2010, MTR at p. 13. During this time, she noted that in general, her paranoia had decreased except when she was not sleeping enough. Id. at p. 1, 14. The Board finds that when the Veteran had auditory hallucinations they were acute and transitory, as the hallucinations appear to occur only when she is not taking her medications.  In any event, such hallucinations have not been shown to cause total functional impairment.

The Veteran was scheduled for a VA examination in 2013, but failed to appear. See VBMS 1/28/2013, LCM, C&P Exam at p. 2. In clinical records, she reported experiencing more auditory hallucinations and believed that she knew what others were thinking.  Further, she had a violent psychotic episode. See VBMS 12/15/2014, CAPRI, at p. 17, 23, 25, 40. The Veteran's father has generally accompanied her to the psychiatric appointments and has been supportive of the Veteran. Id. at 23.  The Veteran's symptoms improved in 2014 when she began job searching and was future-oriented. Id. at 2. Again, although the Veteran's symptoms may cause significant difficulties or diminish her motivation, the record reflects that she is able to perform activities of daily living.  Occupationally, the Veteran has worked part-time at a laundromat on and off during the pendency of her appeal. Id.  

In 2015, a VA psychiatrist noted that the Veteran's mood was good, her appearance was appropriate, and that her thought process was goal-oriented, logical, and coherent with no tangential or circumstantial thought processes. See VBMS 5/26/2016, CAPRI at p. 2. The Veteran was also attempting to reenter the workforce, and her PTSD symptoms were well controlled. Id. at p. 8, 9. During this time, the Veteran reported stress from quitting her job, and from her nephew staying with her. Id. at 1. 

Based on the evidence, as detailed above, the Veteran has been impaired from her PTSD, but maintained relationships with her father and boyfriend. While the Veteran had one violent outburst, generally she has exhibited functional behavior and thought with treating providers, and generally has been able to engage in activities of daily living. The Veteran's medical records show that while she has had some impairment in thought processes, generally her thoughts are logical and future oriented. The Veteran's mental health providers have found her oriented to both time and place throughout her mental health treatment period. Additionally, she does not have issues with memory loss for close relatives or her own name. 

In sum, the PTSD symptoms here have not been shown to cause total occupational and social impairment and a 100 percent rating is not appropriate. See C.F.R. § 4.130, DC 9411. Rather, the disability picture most nearly approximates the criteria for a 70 percent rating and her symptoms, while severe, have been appropriately contemplated by such rating.  The Veteran's PTSD symptoms have been of generally the same level of disability such that staged ratings are not necessary. Fenderson, 12 Vet. App. at 126-27.  



ORDER

A rating in excess of 70 percent for PTSD is denied. 



____________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs