Citation Nr: 18142111 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 16-24 961 DATE: October 16, 2018 ORDER Entitlement to an initial rating greater than 70 percent for posttraumatic stress disorder (PTSD) and major depression is denied. FINDING OF FACT The appellant’s service-connected PTSD and major depression have not been manifest by symptoms which produce total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126(a), 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Army from October 1978 to March 1979, November 1990 to June 1991, March 1992 to September 1992, and from November 2002 to October 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for PTSD and major depression and assigned an initial of a 30 percent rating, effective November 27, 2009. Before the appeal was certified to the Board, in a March 2016 rating decision, the RO increased the initial rating for the appellant’s PTSD and depression to 70 percent, effective November 27, 2009. Although a higher initial rating was granted, the issue remains in appellate status as described above as the RO did not assign the maximum schedular rating from the award of service connection, and the appellant did not withdraw his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not “abrogate the pending appeal”). As such, the Board will address the issue of entitlement to an initial rating greater than 70 percent for PTSD and depression. 1. Entitlement to an initial rating greater than 70 percent for PTSD and depression is denied. The appellant contends that his service-connected PTSD and depression is more disabling than it was initially rated. As discussed above, the appellant has been granted an initial disability rating of 70 percent for his service-connected psychiatric disability. After a review of the evidence of record, the Board finds that preponderance of the evidence is against the assignment of an initial rating in excess of 70 percent for the appellant’s service-connected PTSD and depression. Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran’s average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous...” Fenderson v. West, 12 Vet. App. 119, 126 (1999). Psychiatric disabilities are rated based on the overall severity of symptoms and their impact on the claimant. 38 C.F.R. §§ 4.125, 4.126, 4.130, General Rating Formula for Mental Disorders. 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, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Under these criteria, a 70 percent rating is assigned 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 work-like setting; inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent evaluation 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; a 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. 38 C.F.R. § 4.130. The record contains 3 mental health assessments from October 2009, July 2010, and November 2011, as well as VA treatment records. Comparing the findings of these examinations and clinical records with the rating criteria found in 38 C.F.R. § 4.130, the Board finds that the appellant’s symptoms do not rise to the level of disability contemplated by the 100 percent rating. The appellant underwent a private psychological evaluation in October 2009 which diagnosed the appellant’s symptoms as consistent with PTSD and depression. The appellant was noted with symptoms of persistent recurring intrusive thoughts related to his service in the Persian Gulf, persistent avoidance of thoughts about his experiences that lead to diminished interest in social activities, and persistent feelings of hyperarousal. Upon examination, the appellant was found to be oriented to all three spheres of person, place, and time. He had circumstantial speech, reduced concentration abilities, reduced memory capacity in the short term but within normal limits for recent and remote events. His judgement and insight were also reduced. He was noted with thought content to include homicidal ideation, although he denied any specific means, plans, time frames, and immediate intent, as well as suicidal ideation. The examiner determined that the appellant had major impairment in several areas, including social functioning, employment functioning, family relationships, judgment, thinking, and mood. The appellant underwent a VA contract private psychological evaluation in July 2010 which also diagnosed the appellant with PTSD and major depression. The appellant described symptoms of intrusive thoughts, avoidance, and increased arousal. He related experiencing nightmares, flashbacks, and heightened psychological and emotional arousal when reminded of his war-time experience. He noted he no longer engages in significant social activity and avoids interacting with others including extended family due to feelings of depression and irritability, although he reported regular interaction with his spouse, children, and grandchildren. He reported no history of suicidal thoughts or violent behavior. He also described reluctance to engage in many leisure or recreational activities. He was noted to be reluctant to take care of his health issues without prompting. He was noted to have good relationships at work with no time lost due to his disability. Upon examination, the appellant was found with orientation within normal limits, appropriate appearance, hygiene, and behavior, although it was noted he does not regularly brush his teeth or engage in the physical activity necessary to manage his hypertension and diabetes. His affect and mood revealed depression and he was found with anhedonia, low energy, low motivation, reduced sex drive, and social isolation. His attention and focus was impaired, and he was found to have panic attacks more than once per week. Suicidal ideation was present, although there was no concrete intent to act on these feelings and he had no plans for self-harm. He did report some compulsive behavior revolving around routinely locking doors and windows left unlocked. The examiner’s assessment was that the appellant was intermittently unable to perform activities of daily living with regards to handling his finances because of depressed mood, suspiciousness, panic attacks, problems concentrating, and lack of sleep, but noted that he can provide self-care. In November 2011, the appellant underwent a third mental health examination as he was being enrolled for mental health treatment through the VA health system. At that appointment, the appellant appeared neat and well groomed, with mild depression and anxiousness, appropriate affect, logical speech, recent and remote memory grossly intact with complaints of decreased short-term memory and concentration. He was alert and appropriately oriented. He displayed organized thought processes, no evidence of hallucinations, delusions, or distorted ideation. He denied any current or past suicidal ideation or homicidal ideation, was noted with adequate impulse control, and was found to be a low risk for harm to himself. Considering the totality of this evidence, the Board finds that the appellant’s symptoms do not meet the criteria necessary for a 100 percent rating under 38 C.F.R. § 4.130. The symptoms described in all the appellant’s examinations reveal he was working and able to maintain his employment as a custodian, which does not rise to the level of total occupational impairment. While relations with his wife were strained due to a loss of intimacy, the appellant reported social interaction with his immediate family and grandchildren, which does not rise to the level of total social impairment. Further, at none of the appellant’s examinations did the examiner describe his symptoms as causing total social and occupational impairment. The closest an examiner came to this assessment was to say the appellant had major impairments in his social and occupational functioning, which is not equivalent of total or complete impairment. Further, there has been no evidence of gross impairment of thought process or communication. While the appellant did display some circumstantial speech at his October 2009 examination, he was generally able to converse with the examiners at all his evaluations and pass along the relevant information. His behavior was never noted as anything but appropriate. He was not found with persistent delusions or hallucinations, nor did he endorse such symptoms at any time. While he was once noted with suicidal ideation, and once with homicidal ideation, he did not express any concrete intent to carry out any actions on either thought. Further, at his most recent examination from this period, he reported never having had these thoughts at all. As such, the Board finds, that even if these ideations were properly recorded at the appellant’s initial evaluations, without any concrete plans or specific intent, the appellant’s ideations do not present a persistent danger of hurting self or others. There was no evidence of disorientation to time or place in the appellant’s examinations. The appellant’s evaluations do indicate some deficiencies and reductions in his memory capacity; however, there was no indication that these reductions resulted in memory loss of names of close relatives, occupation, or own name. The appellant was found at his July 2010 examination to have some intermittent inability to perform activities of daily living, including irregularly brushing his teeth, refusal to participate in physical activity to help manage his diabetes and hypertension, and reduced desire to pay his bills at all. This assessment was not present at the time of the appellant’s October 2010 examination and was not noted during his November 2011 examination. At all his examinations, the appellant appeared to be well groomed and appropriately dressed. There is no indication in the record that he is incompetent to manage his finances, or does not engage in regular hygienic maintenance, beyond this report that he did not regularly brush his teeth or engage in exercise. He was not noted to have any odors, nor did he at any point appear disheveled or unkempt. He was also not in such a state of inability to maintain adequate hygiene that he was unable to maintain employment. As such, the Board finds that, even assuming the appellant’s mental health picture does include some intermittent inability to perform some activities of daily living, these do not rise to a level of total social and occupational impairment, as they do not interfere with his ability to work and have not left him entirely socially isolated. In reaching this decision, the Board has considered the holding of the U.S. Court of Appeals for Veterans Claims (Court) to the effect that a request for total disability 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 or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, however, the evidence does not show, nor has the appellant contended that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disability. Rather, the available record reflects that the appellant remains employed on a full time basis. The Board notes that in the March 2016 rating decision which increased the rating for the appellant’s PTSD and depression to 70 percent, the RO noted that although the appellant met the schedular requirements for TDIU, the record shows that he has been employed throughout the pendency of the appeal. The appellant has submitted no evidence or argument to the contrary. Under these circumstances, TDIU is not warranted. The appellant has not raised any other issues with respect to claim for an initial rating greater than 70 percent for a psychiatric disability, nor have any other assertions been reasonably raised by the record. 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). (Continued on the next page)   After a review of the entire record, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 70 percent for the appellant’s service-connected PTSD and depression as the appellant’s symptoms do not produce total occupational and social impairment. As such, the Board concludes that an initial rating greater than 70 percent for a psychiatric disability is not warranted in this case. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel