Citation Nr: 18139978 Decision Date: 10/02/18 Archive Date: 10/01/18 DOCKET NO. 13-02 734 DATE: October 2, 2018 ORDER Entitlement to an initial higher rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT The symptoms and overall impairment caused by the Veteran’s PTSD more nearly approximated occupational and social impairment with deficiencies in most areas; however, they have not more nearly approximated total occupational and social impairment. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an initial higher rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for PTSD and assigned a 30 percent rating, effective July 28, 2010. The Veteran timely disagreed with the initial rating assigned. In March 2013, the Veteran testified at a hearing before a Decision Review Officer (DRO). In March 2013, an informal DRO conference report was issued. In November 2015, the DRO increased the assigned rating for PTSD to 50 percent, effective April 3, 2014. This created staged ratings. The Veteran has not expressed satisfaction with the increased disability rating; this issue thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). Higher Initial Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating higher than 30 percent prior to April 3, 2014, and higher than 50 percent thereafter for PTSD. The Veteran’s PTSD is rated 30 percent disabling prior to April 3, 2014, and higher than 50 percent thereafter pursuant to 38 C.F.R. § 4.130, DC 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under this criteria, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 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 establishing effective work and social relationships. A 70 percent rating is assigned when there is 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 100 percent rating is assigned when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. The Veteran was afforded a VA examination in October 2010. He reported chronic sleep impairment and irritability. He stated that he was first married in 1985 until his first wife passed away from complications of pneumonia. In 2008, the Veteran married his second wife, with whom he shares one child. He stated that he avoids large crowds, as he feels uncomfortable. He reported that he prefers social isolation and that he forces himself to socialize with others. His social activities include staying in contact with his family members and cooking dinner. He stated that was employed most of his life in the automobile industry. He retired in 2000, which was the last time the Veteran was employed. The examiner found that the Veteran was able to manage his daily activities of living. He showed up for the examination neatly dressed and well groomed. He was oriented to time, person, and place. His memory is normal. The Veteran was afforded a VA examination in September 2015. He reported depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. He denied suicidal or homicidal ideation. He stated that his second wife passed away in 2011 due to heart failure. He currently has a girlfriend; she has lived with the Veteran since 2011. He described his relationship with his girlfriend and “hot and cold.” He explained that they get in frequent arguments, particularly when they are both drinking alcohol. He has four sisters; he indicated that he does not speak to, except during holidays and special occasions. While the Veteran is retired from his regular occupation, he is remains active with Veterans of Foreign Wars (VFW) serving as a trustee at his post. He reported that he participates in many of the VFW events, such as he Memorial Day Parade and motorcycle rider’s group. He reports that he has trouble working and being around people who speak other languages: explaining that he becomes distracted when he hears foreign speech. He stated that he has trouble concentrating. In an undated VA treatment record, the Veteran reported that he has problems making friends. He described tension with his live in girlfriend. Furthermore, the Veteran indicated that since his discharge from his military service, he has had “trouble readjusting in society” and it has caused difficulty in maintaining and establishing relationships with others. He stated that he has a high school friend whom he has lunch with once a week. He speaks with his neighbor on a regular basis. The examiner indicated that the Veteran showed up for the examination neatly dressed and well groomed. He was oriented to time, person, and place. His thought process was logical and judgment intact. The examiner opined that the Veteran’s PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. For the following reasons, entitlement to an initial higher rating of 70 percent, but no higher, is warranted, for PTSD. The Veteran’s PTSD symptoms more nearly approximated occupational and social impairment with deficiencies in most areas. For instance, the Veteran has described his relationship with his current girlfriend as “hot and cold” and explained that they frequently argue. During the September 2015 VA examination, he stated that he has difficulty establishing and maintaining effective work and social relationships and inability to establish and maintain effective relationships. He reported that he prefers social isolation and forces himself to socialize with others. He avoids large crowds. He indicated that since his discharge from his military service, he has had “trouble readjusting in society.” He has been retried since 2000; he did not indicate that he retired due to his PTSD symptoms. However, he reported symptoms that may cause some occupational impairment in the work place, such as his difficulty concentrating and that he is around others who appeal different languages he has difficulty working as he becomes distracted Entitlement to an initial rating higher than 70 percent for a PTSD are not warranted because the Veteran’s symptoms and overall impairment caused by the PTSD have not more nearly approximated the criteria for the next higher rating of 100 percent, total occupational and social impairment. As to occupational impairment, he has been retired since 2000. The Veteran has not indicated, nor has the evidence shown, that he was unable to work or obtain employment due to his PTSD symptoms. Furthermore, although the Veteran is retired, he is an active member at the VFW and is a trustee. As to social impairment, although the Veteran indicated that he prefers social isolation and he frequently argues with his girlfriend, the evidence demonstrates that the Veteran frequently socializes with his friends. For instance, he stated that he has a high school friend whom he has lunch with once a week. He speaks with his neighbor on a regular basis. Also, he stated that he participates in many of the VFW events, such as he Memorial Day Parade and motorcycle rider’s group. In addition, the above evidence reflects that there was no gross impairment in thought processes, delusions or hallucinations, grossly inappropriate behavior, that the Veteran was a persistent danger to hurt himself, or that he was unable to perform activities of daily living. He was oriented on all examinations and did not have memory loss. He was not found to be persistent danger to hurt others. In sum, the evidence does not reflect that the symptoms or overall level of impairment more nearly approximated total and social impairment. The preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Board has considered the Veteran’s initial rating claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Additionally, a request for an entitlement to a total disability rating based on individual unemployability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In this case, the Veteran has not contended and the evidence does not show that he is unable to secure or follow substantially gainful employment due to his service-connected PTSD. Therefore, the issue of entitlement to a TDIU, has not been argued by the Veteran or reasonably raised by the evidence of record. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel