Citation Nr: 18144408 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 09-12 124 DATE: October 25, 2018 ORDER Entitlement to a disability rating higher than 70 percent for the Veteran's service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's PTSD is not manifested by spatial disorientation, persistent delusions or hallucinations, persistent danger of hurting self or others, memory loss for names of close relatives, and difficulty in understanding complex commands. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 70 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's claim was previously remanded by the Board in August 2015, to obtain Social Security Administration records. This development was completed. While this claim was in remand status, the Veteran was awarded a total disability evaluation based on individual unemployability, effective from December 2012. PTSD Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever 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). The Veteran was initially awarded service connection for PTSD by way of a June 2013 rating decision. A 50 percent rating was assigned. Following a Decision Review Officer (DRO) hearing, a 70 percent rating was assigned for the entire appeal period. Under the applicable rating criteria for mental disorders, including the Veteran’s service-connected PTSD, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The maximum rating of 100 percent is warranted 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 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. The symptoms associated with the psychiatric 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, 443 (2002). Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. A veteran may only qualify for a given initial or increased rating based on mental disorder by demonstrating the particular symptoms associated with that percentage in the rating criteria, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although a veteran’s symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for that rating. Id.; 38 C.F.R. § 4.130. The Veteran has been receiving treatment for psychiatric disorders since 1992. Throughout the pendency of this appeal, the Veteran’s PTSD has manifested as impaired impulse control, inability to establish and maintain effective relationships, memory problems, difficulty in adapting to stressful circumstances, disturbances of motivation and mood, chronic sleep impairment, suspiciousness, and anxiety. Further, the Veteran has had instances of suicidal ideation and panic attacks. However, there is no evidence that the Veteran has suffered from disorientation as to time and place, persistent delusions or hallucinations, an intermittent inability to perform activities of daily living, and memory loss for names of close relatives, own occupation, own name, or other symptoms of similar severity. Further, while all of the examiners have indicated that the Veteran suffers an impairment of impulse control, and the Veteran has admitted to becoming physical with several coworkers, see April 2015 Travel Board Hearing, none of the examiners have indicated that the Veteran is a persistent danger to himself or others, see April 2015 VA Examination; June 2013 VA Examination. In an undated report from a 2008 examination, the Veteran’s private psychologist, DB, indicated that the Veteran's thoughts of self-harm were mitigated by his desire for treatment. DB also stated that the Veteran's wife was a positive influence and source of support for the Veteran. The Veteran has indicated that self-care is difficult. At his April 2015 Travel Board hearing, the Veteran's wife testified that she often has to groom him, as there are certain things he is no longer capable of doing. VA has acknowledged the severity of the Veteran's symptoms by awarding him a total disability rating based on individual unemployability (TDIU). However, the general rating formula for mental disorders requires total social impairment in addition to total occupational impairment for a 100 percent rating to be awarded. See Nicholson v. Wilkie, No. 17-2939 (Vet. App. filed Sept. 12, 2018) While the Veteran has become isolated from some friends and family, he still maintains a relationship with his wife. Likewise, most of the symptoms identified in the rating schedule supporting a 100 percent schedular evaluation, or others of similar type, degree or effects are not demonstrated. As such, the Board finds that the Veteran's symptoms more closely approximate occupational and social impairment with deficiencies in most areas. A 100 percent rating is not warranted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel