Citation Nr: 18142697 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-33 313 DATE: October 17, 2018 ORDER Entitlement to a 70 percent rating for PTSD, but no higher, is granted throughout the appeal. REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. FINDING OF FACT Since December 8, 2011, the Veteran’s PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for PTSD have been met since December 8, 2011. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to an initial rating in excess of 30 percent prior to February 21, 2015, and in excess of 70 percent thereafter Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran’s posttraumatic stress disorder (PTSD) is rated according to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A staged rating is currently assigned for the disability, as it is rated as 30 percent disabling prior to February 21, 2015, and 70 percent disabling thereafter. See Fenderson, 12 Vet. App. at 125-26. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when a psychiatric disorder is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability 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). 38 C.F.R. § 4.130. A 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is granted 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is justified when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the claimant’s symptoms, but it must also make findings as to how those symptoms impact the claimant’s 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 associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the claimant’s impairment must be “due to” those symptoms; therefore, a claimant 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; Mauerhan, 16 Vet. App. at 442. The Veteran underwent a February 2015 VA contract examination in connection with his service-connected PTSD, in which the examiner indicated that the Veteran was experiencing symptoms associated with his PTSD including chronic sleep impairment, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. The examiner confirmed the Veteran’s diagnosis as PTSD and commented the Veteran’s PTSD symptoms were impacting activities of daily living, occupation and social functioning, and that he started experiencing these symptoms after his time in service; the examiner indicated that the Veteran’s level of impairment was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. There is no evidence that the examiner was not competent or credible, as the report was based on a review of the Veteran’s medical records and an in-person examination of the Veteran; therefore, the Board finds that it is entitled to significant probative weight as to the severity of the disability at the time of the examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran’s VA treatment records and lay statements generally document similar symptoms as those noted in the February 2015 examination. VA treatment records from November 2012 through February 2015 noted symptoms including chronic anxiety, flashbacks, nightmares and screaming in his sleep, hypervigilance and hyperarousal, re-experiencing memories relating to his PTSD, and avoidance. In a January 2013 Mental Health Recovery & Intensive Treatment (MHRIT) program evaluation, the Veteran indicated that he had notable survivor guilt, that for many years he has avoided anything that he associated with his trauma, and that since losing his job, he has experienced more significant impairment due to his symptoms, feeling angry and anxious more often, as well as being more tearful and emotionally labile. A January 2013 MHRIT group note further documented that the Veteran described a history of avoidant behavior in personal relationships, and that he frequently felt detached from others. A subsequent January 2013 MHRIT note further documented that the Veteran described his avoidance as going into a room, covering his eyes, and wearing ear plugs to avoid any contact with others, behavior that was causing him problems in terms of interpersonal relationships and his ability to work. A February 2015 note from a VA staff psychiatrist reiterated that the Veteran’s PTSD symptoms experienced a resurgence after he lost his job in 2010, and that despite medication and counseling, the Veteran continued to struggle with nightmares, intrusive memories, blunted affect, social isolation, reluctance to discuss the trauma, insomnia, irritability, poor concentration, and hypervigilance. The lay evidence of record further supports and provides additional detail to the medical evidence in the record. In his September 2017 Board hearing, the Veteran stated that his PTSD was impacting his personal and work relationships as he had difficulty interacting with co-workers and did not have friends, noting that he has to isolate himself to feel normal, and further stating that he had some trouble performing the sorts of daily tasks that people need to perform to live independently such as grocery shopping, mowing the lawn, or performing other chores. With respect to his current employment, the Veteran further stated that he currently works part-time in a place that sells lighting, that he works primarily in a cubicle on the phone, and that he has to sometimes remove himself from work to lock himself in the car, noting that it takes everything out of him to try and function in that environment. The Veteran is clearly competent to report these symptoms, and the VA examiners and psychiatrists who have treated the Veteran have regarded him as credible in reporting his symptoms. The Board likewise finds his statements are credible and entitled to significant probative weight. Based on the evidence in the record and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has exhibited symptoms most consistent with a 70 percent schedular rating throughout the period on appeal, including difficulty in adapting to stressful circumstances (including work or a work like setting), and inability to establish and maintain effective relationships. Significantly, the February 2015 VA contract examiner found that the Veteran's PTSD symptoms resulted in deficiencies in family relationships, mood, thinking, and overall quality of life, which reflects the level of impairment contemplated by the criteria for a 70 percent disability rating. The findings of the February 2015 VA contract examination are consistent with the medical and lay evidence of record throughout the period on appeal, and the above evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. As such, the Board finds that a rating of 70 percent for the Veteran’s PTSD is warranted for the entire period on appeal. A 100 percent schedular rating is not warranted at any point during the appeal period because the Veteran’s PTSD symptomatology has not resulted in total occupational and social impairment. The Veteran has not experienced the particular symptoms associated with the 100 percent criteria, or others of similar severity, frequency, and duration during the appeal period. See Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. The symptoms listed in 100 percent rating criteria suggest impairment in reality or a total inability to function within the bounds of societal norms. VA examination reports and treatment records show the Veteran has consistently been alert and oriented to time and place. There is no evidence of persistent delusions or hallucinations. The Veteran has also not manifested grossly inappropriate behavior and does not appear to be a persistent danger to harming himself or others. The Veteran maintains a relationship with his wife, and is currently employed part-time. Thus, the Veteran’s disability is not consistent with the type of total impairment that is contemplated by the 100 percent rating criteria. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability is remanded. The Board has taken jurisdiction over a claim of entitlement to TDIU because unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue is included in the present appeal, as reflected on the title page of this decision. In his September 2017 Board hearing, the Veteran stated that he was currently employed in a part-time job, and his wife indicated that the position constituted marginal employment, and that the Veteran was entitled to TDIU. When viewed in the light most favorable to the Veteran, the Board construes these contentions as a claim for a total disability rating based on individual unemployability (TDIU). The Veteran has not completed a VA Form 21-8940, nor has he provided his full employment history, which is necessary for VA to properly adjudicate a TDIU claim. Thus, on remand, the AOJ should confirm with the Veteran that he wishes to pursue a claim for a TDIU. If so, the AOJ should fully develop the TDIU claim, to include providing the Veteran with the appropriate notice and obtaining the appropriate documentation, to include a VA Form 21-8940, from the Veteran. The matter is REMANDED for the following action: Ask the Veteran to complete an Application for TDIU, VA Form 21-8940, if he wishes to pursue such a claim. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Reed, Associate Counsel