Citation Nr: 1754916 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-07 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant, wife, and friend ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service from November 1967 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2016, the Veteran testified before the Board. The Board remanded the claim in June 2016. FINDING OF FACT Throughout the pendency of the appeal, the Veteran's PTSD has resulted in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent rating for PTSD have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159, 4.7, 4.124(a), 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board is satisfied that there has been substantial compliance with the June 2016 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 . When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD has been rated as 50 percent disabling under 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when the psychiatric condition produces 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. A maximum 100 percent rating is assigned when there is total occupational or 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. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (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. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). 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 rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In this case, the Board finds that a rating higher than 50 percent is not warranted. The Board has taken into account the Veteran's statements that he suffers from social isolation, distrust of others, an uneasiness outside of the home, nightmares, and irritability. However, the Board finds that the current 50 percent rating contemplates these symptoms, especially in light of the findings on VA examinations and in the VA treatment records. Specifically, on January 2011 VA examination, mental status examination demonstrated that the Veteran's speech, attitude, and affect were within normal limits. He did appear anxious with a shortened attention span, but was otherwise oriented, with unremarkable thought process and content. There was no evidence of delusion or hallucination. He was noted to suffer from panic attacks 2-3 times per day. He did not have suicidal or homicidal ideations. His personal hygiene was appropriate. He experienced nightmares, flashbacks, and intrusive thoughts of his service that were moderate in severity. He was hypervigilant and avoidant. He was employed at the time as a manager at a home improvement store. He was assessed to suffer from PTSD that caused reduced reliability and productivity. On August 2016 VA examination, the Veteran reported five to six days of significant depression per month, with no suicidal or homicidal ideation. He experienced nightmares and trouble with concentration and memory. He reported similar feelings of the need to isolate, as well as increased irritability. The Veteran was once again assessed to suffer from occupational and social impairment with reduced reliability and productivity. The Board finds that the 2011 and 2016 VA examination opinions that the Veteran suffered from PTSD symptoms resulting in occupational and social impairments contemplated by the 50 percent rating are consistent with the VA treatment records. Those records show that in October 2011, the Veteran reported that he was doing fairly well with his PTSD symptoms. He had started taking Celexa after losing his job and thus was experiencing increased anxiety. In December 2013, he reported feelings of guilt, but felt that he would do better after the holidays. In October 2014, he stated that he was doing well on medication. He would get more anxious at times but was doing alright. In July 2015, he reported that his PTSD was stable on medication and he did not wish to pursue counseling. In July 2016, he reported an increase in symptoms of hypervigilence, intrusive thoughts, and irritability. These records do not show that the Veteran's disability picture more nearly approximates the criteria required for a 70 percent rating. On an occupational level, the Veteran was shown to work as a manger until he was let go from his job. The current evidence of record does not demonstrate that his job termination was related to his PTSD. On a social level, he has reported an intact marriage and family life. Thus, deficiencies in most areas have not been shown. Notably, VA examination showed no evidence of suicidal ideation, obsessional rituals which interfere with routine activities, or speech intermittently illogical, obscure, or irrelevant. The Board notes that the Veteran checks his surroundings when he is in a new place, however, such has not been shown to interfere with routine activities. The Veteran experiences panic attacks, as contemplated by the 50 percent rating, but not near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. While he has irritability, there is no indication of unprovoked irritability with periods of violence. The remaining symptoms noted in the higher rating have not been demonstrated. The Board places great probative weight on the VA examiners' assessments that the Veteran suffers from PTSD symptoms enumerated in the 50 percent rating, and that his occupational and social impairment is moderate in degree. Based upon the above, the Board finds that the weight of the competent and credible evidence is against an increased rating for PTSD, and thus the claim must be denied. Finally, a claim for a Total Rating for Compensation Based on Individual Unemployability (TDIU) has not been raised by the record, as the Veteran has not stated that his termination from employment was related to his PTSD, and the record does not otherwise demonstrate such to be the case. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A rating in excess of 50 percent for PTSD is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs