Citation Nr: 18141185 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-41 257 DATE: October 9, 2018 ORDER From December 9, 2009, to August 26, 2014, entitlement to a rating of 70 percent for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 70 percent for PTSD is remanded. FINDING OF FACT From December 9, 2009, to August 26, 2014, the Veteran’s PTSD is characterized by occupational and social impairment, with deficiencies in most areas, such as with work, school, and family relations, which are due to such symptoms as suicidal ideation, impaired impulse control, and inability to establish and maintain effective relationships. CONCLUSION OF LAW From December 9, 2009, to August 26, 2014, the criteria for a disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 2003 to November 2006. A hearing was not requested. Increased 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. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. From December 9, 2009, to August 26, 2014, entitlement to a rating of 70 percent for PTSD In November 2007, the RO granted service connection for PTSD at an initial rating of 30 percent under Diagnostic Code 9411 from November 9, 2006, the day after he left active-duty service. That decision was not appealed and is final. On December 9, 2010, the Veteran filed a claim for an increased rating for PTSD. In May 2013, the RO increased the Veteran’s rating to 50 percent from December 9, 2010. The Veteran is appealing that decision. In May 2016, the RO increased the Veteran’s rating to 70 percent from August 27, 2014. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Diagnostic Code 9411 provides compensation for PTSD under the General Formula for Rating Mental Disabilities. 38 C.F.R. § 4.130. Under that diagnostic code, a 30 percent rating is provided when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided 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. 38 C.F.R. § 4.130. A 70 percent rating is provided 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 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is provided for 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 of the veteran 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. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Veteran may only qualify for a 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 that result in the levels of occupational and social impairment provided. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). To adequately evaluate and assign the appropriate disability rating to the Veteran’s service-connected psychiatric disability, the Board must analyze the evidence as a whole and the enumerated factors listed in 38 C.F.R. § 4.130. Mauerhan, 16 Vet. App. at 436. As this claim was certified to the Board after August 4, 2014, DSM-5 is applicable to the claim. The Veteran is service-connected for PTSD, but not for other mental disorders. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181 (1998). From December 9, 2009, to August 26, 2014, the Veteran is entitled to a 70 percent rating for PTSD. Regarding deficiencies at school, a July 2010 VA medical record (received 5/21/13, page 175 of 256) indicates increased concentration and memory problems over the past 90 days, “especially during [his] classes.” A July 2010 VA medical record (received 5/21/13, page 162 of 256) states that “[t]he veteran is not happy with his grades in college and feels that this is in part attributable to the fact that it takes him longer to process information than it did previously.” A May 2011 VA medical record (received 5/21/13, page 101 of 256) reads as follows: “[the] Veteran also reports that he completed his college course requirements for his Masters’ Degree. Veteran says he is considering additional education, but says his retention is worsening, ‘I struggle to retain and pass my classes.’” In a different May 2011 VA medical record (received 5/21/13, page 96 of 256), the Veteran states that it was “hard to concentrate” during his recently-completed Masters’ program. A May 2011 VA examination states that the Veteran completed an MBA program with difficulty. Regarding family deficiencies, the Veteran was married in August 2011. See Marriage Certificate (received 8/28/12). Unfortunately, he and his wife have experienced consistent difficulties. A January 2012 VA medical record (received 5/21/13, page 20 of 256) states that the Veteran is currently living alone because his wife left last week due to their arguing. A March 2012 VA medical record (received 5/21/13, page 37 of 256) indicates continued marriage difficulties, including daily arguments, the Veteran needing “to leave the house, to get away,” and the Veteran’s desire to file for divorce. An April 2012 VA medical record states: “Veteran reports no changes in his marital relationship with the arguing and verbal altercations. Veteran says he and his wife, ‘she screamed in my face then said what are you going to do, kill me . . . and I just shook her until she was confused.’ Veteran says he and his wife are now staying in separate bedrooms and have been since the Easter holiday.” A June 2012 VA medical record (received 5/21/13, page 13 of 256) states: “Veteran reports no changes in his marital relationship with the arguing and verbal altercations. . . . Veteran says he is not sure where the relationship is headed, but says he does not want to continue the ‘fights.’” Regarding work deficiencies, a July 2010 VA medical record (received 5/21/13, page 162 of 256) states that the Veteran “does work part time as a customer service representative” but “gets along with his other coworkers only because he does not talk to them very much.” In a May 2011 statement (received 5/26/11), the Veteran indicates needing to “keep asking the same questions over and over” at work. A November 2011 VA medical record (received 5/21/13, page 51 of 256) states that the Veteran “continues to have problems with focus and concentration throughout the day.” In a January 2012 VA medical record (received 5/21/13, page 57 of 256), the Veteran “reports continued problems with focus and concentration throughout the day.” Regarding suicidal ideation, in a July 2010 VA medical record (received 5/21/13, page 162 of 256), the “Veteran endorsed suicidal ideation.” A July 2010 VA medical record (received 5/21/13, page 156 of 256) notes mild symptoms of suicidal thoughts. An October 2010 VA medical record (received 5/21/13, page 151 of 256) indicates suicidal thoughts. A May 2011 VA examination states that the Veteran has “passive thoughts of killing himself, but has no intent.” However, in a far larger number of VA treatment records for this time period, the Veteran denies suicidal thoughts. Regarding impaired impulse control, an October 2010 VA medical record (received 5/21/13, page 151 of 256) indicates mood swings and road rage. In a May 2011 VA medical record (received 5/21/13, page 101 of 256), the “Veteran says his anger outburst and mood swings persist . . . .” Regarding inability to establish and maintain effective relationships, a December 2009 VA medical record (received 5/21/13, page 191 of 256) indicates “relational difficulties.” This same statement is repeated in VA medical records dated April 2010 (received 5/23/13, page 182 of 256), July 2010 (received 5/21/13, page 175 of 256), October 2010 (received 5/21/13, page 143 of 256), December 2010 (received 5/21/13, page 136 of 256), June 2011 (received 5/21/13, page 84 of 256), August 2011 (received 5/21/13, page 71 of 256), November 2011 (received 5/21/13, page 51 of 256), and January 2012 (received 5/21/13, page 57 of 256). A July 2010 VA medical record (received 5/21/13, page 162 of 256) states that “[t]he veteran is very socially isolated and does not participate in activities outside of his home.” A December 2010 VA medical record (received 5/21/13, page 136 of 256) reads as follows: “Veteran says ‘I tried to start a relationship, but she wanted to talk and touch me and I did not want that, I don’t like to be talked to too much or to be touched too much either.’ Veteran says he would rather not be in a relationship for the aforementioned reasons.” A May 2011 VA medical record (received 5/21/13, page 101 of 256) reads as follows: “Veteran reports continued difficulty with interpersonal relationships, saying ‘I still have problems with relationships and just told my girlfriend to get away from me, I don’t want to be with her anymore.’” A May 2011 VA medical record (received 5/21/13, page 96 of 256) indicates “irritability and avoidance symptoms, not wanting to be around others or significant others” and states that the Veteran “was in PCT Groups but found it hard to be with a group of people, would rather have individual therapy.” A May 2011 VA examination states that the Veteran is working but “cannot maintain social relationships,” “has difficulty being around people,” and does not initiate phone calls to speak with friends or family. In a May 2011 statement (received 5/26/11), the Veteran states that he has difficulty in establishing relationships. In a January 2012 VA medical record (received 5/21/13, page 57 of 256), the Veteran states “that he does not like the ‘closeness or being held, I sometimes feel like I’m on fire when she touches me.’” A March 2012 VA medical record (received 5/21/13, page 37 of 256) states that the Veteran is experiencing “increased anxiety participating in group therapy” and states that the Veteran “plans to cancel all remaining group sessions.” An April 2012 VA medical record states: “Veteran says he would rather be left alone than to socialize with his wife and other friends.” Taken together, this evidence supports the existence of occupational and social impairment with deficiencies in most areas. School deficiencies are reflected by difficulty concentrating and making good grades. Family deficiencies are reflected by seemingly continuous arguments between the Veteran and his wife. Work deficiencies are reflected by concentration and memory difficulties at the Veteran’s job. There is also evidence of passive suicidal ideation and impaired impulse control. Additionally, the Veteran’s continued description of relational difficulties, isolation tendencies, the desire to not be touched, and aversion to group therapy all indicate an inability to establish and maintain relationships. While there is no evidence of hygiene difficulties, spatial disorientation, or speech difficulties, the weight of the evidence as a whole nevertheless supports a rating of 70 percent. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent for PTSD is remanded. In correspondence dated December 2015, the Veteran argues that his December 2015 VA PTSD examination did not accurately reflect the severity of his symptoms. Given the evidence of increased symptomatology and the length of time since the Veteran’s last VA examination, a remand is required to afford the Veteran with a contemporaneous VA examination to assess the current nature, extent, and severity of this service-connected disorder. Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Additionally, on Remand the RO should obtain all relevant VA treatment records dated from April 2016 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain all VA treatment records from April 2016 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and severity of the Veteran’s service-connected PTSD. The Veteran’s claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. The examiner should describe any work accommodation being provided to the Veteran. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel