Citation Nr: 1800124 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-41 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). (The issue of service connection for residuals of a traumatic brain injury will be addressed in a future decision.) REPRESENTATION Appellant represented by: Jodee R. Dietzenbach, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and A.P. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 2006 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the VA Regional Office (RO) in Des Moines, Iowa. This issue was remanded in February 2015 to afford the Veteran his requested hearing. In August 2016, the Veteran testified at a videoconference hearing conducted before the undersigned. As noted on the first page, the Veteran also has an appeal pending regarding the issue of service connection for residuals of a traumatic brain injury. In addition to the hearing in August 2016 before the undersigned, the Veteran also presented testimony as to this issue before a different Veterans Law Judge (VLJ) at a hearing in June 2013. Consequently, that issue must be decided by a panel of not less than three VLJs. See 38 U.S.C. § 7102(a) (2012). A letter will be sent to the Veteran regarding whether he wishes to have a hearing before the third VLJ as to that issue in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011). Therefore, a decision concerning the appeal of service connection for residuals of a traumatic brain injury will be issued later. FINDING OF FACT The Veteran's PTSD has been shown to be productive of occupational impairment and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms not adequately contemplated by the criteria for a 50 percent evaluation. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.126a, 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. §§ 5103, 5103A; 38 C.F.R. § 3.159; 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). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Initial rating claim A. 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. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. B. PTSD The Veteran is currently evaluated at the 50 percent rate for PTSD under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. There is evidence to suggest that a higher rating of 70 percent is warranted. Id. The Veteran was provided VA examinations in August 2009, August 2012, and March 2015. No diagnosis of PTSD was rendered at the 2009 examination. In addition to PTSD, the 2012 examiner diagnosed the Veteran with other nonservice-connected psychiatric and personality disorders. The examiner opined that the Veteran's arousal symptoms and tendencies toward social withdrawal were most likely the cornerstone of his PTSD. The examiner also opined that 20 percent of the Veteran's occupational and social impairment was attributed to PTSD. Symptoms noted at that examination included depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss; impaired judgment; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and impaired impulse control. In an addendum opinion, the examiner opined that the Veteran's reduced sleep, hypervigilance, and increased startle reflex were most likely linked to his PTSD. They further opined that his impulsivity, anger, and acting out tendencies were attributed to a nonservice-connected diagnosis. The 2015 examiner also provided a diagnosis of PTSD along with other nonservice-connected psychiatric and personality disorders. This examiner opined that the symptoms attributed to PTSD included reexperiencing, avoidance, and hyperarousal symptoms, along with negative changes in mood and cognition. They further opined that 80 percent of the Veteran's social impairment was attributed to his PTSD. Symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; and disturbances of motivation and mood. The examiner noted that the Veteran worked for his wife's company and also worked at a community college. At his hearing, the Veteran testified that he did not go out anymore; could not be in crowds; and had memory problems and paranoia. He described taking courses in engineering. Another witness was his employment supervisor, who described him as having "bad days" at work but also indicated continued employment. Based on the symptoms shown during the examinations as well as in his treatment records, the Veteran's testimony, and as the 2015 examiner attributed 80 percent of the Veteran's impairment to his PTSD, when affording the Veteran the benefit-of-the-doubt, the Board finds this evidence to be more clinically characteristic of the criteria for a 70 percent evaluation under DC 9411, and such evaluation is warranted. 38 C.F.R. § 4.7. However, the highest rating of 100 percent is not warranted. The evidence does not establish total occupational and social impairment. Significantly, the Veteran has remained employed throughout this appeal. The 2015 examination shows that the Veteran's marriage of three years was "going well." His treatment records and VA examinations have not shown symptoms contemplated by a 100 percent rating, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; and the intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. § 4.130, DC 9411. No medical professional has provided any opinion indicating that the Veteran's disability results in total occupational and social impairment, and the Veteran's continued employment certainly weighs against such a finding. In rendering this decision, the Board has considered how the Veteran's symptoms impact his occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board has also considered the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). However, when considering the totality of the evidence, while the Veteran's symptoms are indicative of a 70 percent rating, they have not been shown to result in total occupational and social impairment. Consequently, the criteria for a 70 percent rating, but no higher, have been met. In making this determination, the Board 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). Specifically, the Veteran has reported employment and continued education during the pendency of this appeal, and the record does not raise a claim for a total disability rating based upon individual unemployability. ORDER A 70 percent evaluation for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ A.C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs