Citation Nr: 18142576 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-37 196 DATE: October 17, 2018 ORDER Entitlement to a rating of 70 percent, but no higher, for post-traumatic stress disorder (previously rated as adjustment disorder with depressed mood) is granted. FINDINGS OF FACT 1. Throughout the appeal, the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas. 2. At no time during this appeal has the Veteran’s PTSD caused total occupational and social impairment. CONCLUSIONS OF LAW 1. Throughout the appeal, the criteria for a rating of 70 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. Throughout this appeal, the criteria for a schedular rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.126, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1992 to May 2001. He served honorably in the United States Navy. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. On June 24, 2009, while he was rated at 30 percent, the Veteran filed the present increased rating claim. In July 2015 his rating was increased to 50 percent (effective June 24, 2009). The Board also notes that the Veteran initiated an appeal as to gastroesophageal reflux disease (GERD) but did not perfect it by filing a timely substantive appeal, so the Board does not have jurisdiction of the GERD issue and it will not be discussed in this decision. Entitlement to a higher rating for PTSD, rated 50 percent from June 24, 2009. Legal Criteria Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9411. The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 70 percent - 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. 100 Percent - 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 or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). 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 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 McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disability prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. Additional reference to the Veteran’s disability are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. For the purpose of evaluating lay evidence, to include a veteran’s statements about his health conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptoms of an injury or illness (such as pain or the visible flatness of the feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Analysis The Veteran has asserted that the “70% evaluation . . . more closely match[es] [his] disability.” See October 2015 substantive appeal. The Board agrees and finds that the preponderance of the competent medical evidence favors a finding that a higher 70 percent rating is warranted throughout the appeal. The Veteran filed the present claim in June 2009. The Board has considered evidence within one year prior to the June 2009 date of claim to determine whether an increase occurred within that year so that an earlier grant of benefits can be awarded but finds that an increase did not occur within that year. In an evaluation session in January 2009 at the Salt Lake City VAMC, the Veteran noted he has suicidal ideations. Recurrent suicidal ideation had been previously noted by mental health providers. See November 2, 2006 and January 3, 2007 VA treatment records. In an August 2009 and subsequent May 2015 VA examinations, the VA examiners stated suicidal ideations are present. In addition, the 2009 VA examination report noted that the Veteran had social and family relationship problems. He reported that he was twice divorced and currently was experiencing some marital difficulties and that he did not have a relationship with his two living children. During his 2015 VA examination, he reported dropping out of school in 2009 due to not being able to handle the work. He also reported having no friends or family other than his wife with whom he reported doing little together. Accordingly, resolving all reasonable doubt in favor of the Veteran and based on the preponderance of the evidence, the Board concludes that a higher 70 percent rating is warranted throughout the appeal given the Veteran’s recurrent symptom of suicidal ideation. On the other hand, the Board finds that the preponderance of the competent medical evidence is against a finding that a higher rating of 100 percent is warranted at any time during this appeal. To reiterate, a 100 percent rating requires total occupational and social impairment as manifested by symptoms such as persistent hallucinations, memory loss for one’s own name, grossly inappropriate behavior, gross impairment of communication, an intermittent inability to perform activities of daily living, and disorientation in time or place. Pursuant to the August 2009 and May 2015 VA examinations, hallucinations were not indicated, the Veteran’s memory was normal and he was oriented to person, time, and place. The Veteran also presented with appropriate appearance and hygiene as well as appropriate behavior. Further, the Veteran reported during both examinations that he was employed. In sum, although the Veteran’s PTSD symptoms are serious, the Board finds that   the preponderance of the evidence demonstrates a level of functionality not contemplated by the criteria for a 100 percent rating. Accordingly, a 100 percent rating for PTSD is not warranted at any time during the appeal. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Herdliska