Citation Nr: 18146133 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-01 040 DATE: October 30, 2018 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected PTSD was manifested by no more than occupational and social impairment with deficiencies in most areas due to such symptoms as difficulties in establishing and maintaining effective relationships; but the psychiatric disability is not manifested by total occupational and social impairment. 2. After affording the benefit of reasonable doubt, the evidence is at least in equipoise as to whether her service-connected PTSD results in unemployability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1986 to March 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran failed to appear for her scheduled hearing in July 2018. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. 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. Id. The Veteran’s PTSD is using the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned 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 or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name. Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The Veteran filed a claim for entitlement to service connection for PTSD in November 2012. In February 2014, the RO granted service connection and found that the Veteran was entitled to a 70 percent disabling rating. A review of the medical evidence of record shows that the Veteran’s PTSD is consistent with a finding of no more than 70 percent disabling for the entire appeal period. In early 2012, the Veteran was noted to have abrupt mood swings, agitation, and impaired concentration. See October 2012 Medical Treatment Record – Government Facility. In addition, the Veteran was noted to have sleep disturbance, chronic insomnia, rapid speech, hyperverbal speech, and flight of ideas. However, the Veteran showed no evidence of delusional thought, or auditory or visual hallucination. By October 2012, the Veteran was noted to experience less mood swings and irritability. See April 2013 CAPRI. She was able to focus and follow through with day to day decisions. Her concentration, hygiene, and grooming was better. She had logical and coherent thought process, intact memory, and good judgment and insight. She denied having hallucinations, suicidal or homicidal ideation, delusions, and paranoia. By December 2012, there was “improvement in her overall mental stability.” Id. The Veteran continued to have impulsivity, mood swings, and agitation, but her thoughts were more organized, memory was intact, and her attention, concentration, judgment and insight were noted to be good. In 2013, the Veteran affirmed that she was taking her medication as prescribed. The Veteran was cooperative and exhibited normal speech. She had a cheerful but anxious mood, logical and coherent thought process, intact memory, and good judgment and insight. The Veteran reported that she felt more balanced and slept well. Id. In 2014, the Veteran was noted to have good hygiene. See September 2014 CAPRI. The Veteran had a logical and coherent thought process, intact memory, normal attention and concentration, and good judgment and insight. The Veteran denied hallucination, and suicidal or homicidal ideation. In the February 2014 VA examination, the examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. On mental status examination, the Veteran endorsed symptoms such as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, suicidal ideation, and difficulty in establishing and maintaining effective work and social relationships. Her grooming and hygiene was appropriate. She was oriented to person, time, place, and situation. Her speech was spontaneous and pressured at times. Her thought content was primarily linear, relevant and goal directed, although tangential at times. However, her insight and judgement was good and her psychomotor activity was unremarkable. Based on the evidence of record, the Board finds that for the entire appeal period, the treatment records do not more nearly approximate the criteria for a disabling rating of 100 percent. The Board finds that the Veteran’s PTSD, at most, only exhibited occupational and social impairment consistent with a 70 percent disabling rate. Specifically, the records note sleep disturbance, impaired speech, impulsivity, mood swings, and agitation. The Veteran’s PTSD does not meet the criteria for a higher rating in excess of 70 percent as the records and the February 2014 VA examination show that there is no evidence of obsessional rituals, spatial disorientation, neglect of personal appearance or hygiene, gross impairment in thought process or communication, memory loss, delusions or hallucinations. The Board notes that the Veteran endorsed suicidal ideation in the February 2014 VA examination, but finds that predominantly the Veteran denied any suicidal and homicidal ideation during the appeal period except the one-time endorsement in the February 2014 VA examination. See April 2013 CAPRI and September 2014 CAPRI. In summary, the Veteran’s PTSD is not productive of total social and occupational impairment. The claim is therefore denied. TDIU The Veteran is service connected for PTSD at 70 percent and tinnitus at 10 percent for a total rating of 70 percent. Thus, she meets the criteria under 38 C.F.R. § 4.16(a). Although there is evidence of record that the Veteran left her last job because of her non-service-connected carpal tunnel syndrome, there is also evidence that the Veteran likely cannot work, at least in part, based on her service-connected PTSD. Therefore, after affording the Veteran the benefit of reasonable doubt, entitlement to a TDIU is granted. REASONS FOR REMAND Entitlement to service connection for a left hip disability is remanded. In the December 1990 rating decision, the RO denied the claim of entitlement to service connection for a left hip disability as the Veteran did not submit any evidence showing existence of a left hip disability and no in-service injury or disease. Since the December 1990 rating decision, missing service treatment records were added to the claims file. See May 2014 STR – Medical. The missing service treatment records show that in January 1990 the Veteran complained of left hip pain after falling down some steps. See May 2014 STR – Medical. On examination, the Veteran was noted to have bruises and pain on movement. The Veteran was diagnosed with soft tissue contusion of the left hip. As relevant service department records were added to the claims file following the December 1990 rating decision, the Board will reconsider the claim. 38 U.S.C. § 3.156(c)(1)(i), (ii). The Board notes that the May 2013 VA examiner diagnosed the Veteran with tendonitis of the left hip and opined that the Veteran’s left hip disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of her opinion, the examiner stated that the Veteran was not seen for nor treated for a hip condition while on active duty military service. Further, there is no medical evidence of a hip condition or ongoing treatment for a hip condition immediately or one year after discharge. The Board notes that when the examiner rendered her opinion, the examiner did not have access to the Veteran’s complete service treatment records that showed in-service injury to the left hip. As such, the Board finds that an addendum opinion is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to the May 2013 VA examination. The claims file must be made available to be reviewed by the examiner, and a note that it was reviewed should be included in the report. If the examiner determines that additional examination of the Veteran is necessary to provide an opinion, such examination should be scheduled. After reviewing the claims file, the examiner must determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s left hip disability had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the January 1990 left hip injury. See May 2014 STR – Medical. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel