Citation Nr: 18146369 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-24 583A DATE: October 31, 2018 ORDER Entitlement to a 70 percent disability rating, but no more, for post-traumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT For the entire period of the appeal, the Veteran’s PTSD, as likely as not, was manifested by suicidal ideation; persistent auditory hallucinations; difficulty in adapting to stressful circumstances (including work setting); and inability to establish and maintain effective relationships, resulting in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. However, the Veteran did not exhibit gross impairment in thought process or communication, grossly inappropriate behavior, or persistent danger of hurting self or others, and she did not suffer from disorientation to time or place or memory loss for names of close relatives, own occupation, or own name. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for a disability rating of 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1986 to May 1989. She testified at a hearing before the undersigned Veterans Law Judge in January 2012; a copy of the transcript of the hearing is of record. The Board has considered whether a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. A review of the Veteran’s most recent VA medical records indicates that she is currently employed. Furthermore, none of the VA examiners who have evaluated her service-connected disabilities have determined that those conditions preclude her from securing and maintaining substantially gainful employment. The Board does acknowledge that the Veteran has submitted correspondence dated in October 2017 from a Dr. A. T-F. in which she opined that the Veteran would be unable to interact with male veterans or any victims of sexual trauma in her work as a nurse as such interactions would trigger her PTSD; however, Dr. A. T-F. did not state that the Veteran was entirely precluded from carrying out her duties as a nurse. Accordingly, a claim for entitlement to TDIU has not been raised by the record. Entitlement to an initial disability rating in excess of 50 percent for PTSD Service connection is in effect for PTSD with an initial disability rating of 50 percent effective March 30, 2007. The Veteran seeks to have an increased rating for the entire period on appeal. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The 50 percent rating was assigned pursuant to the General Rating Formula for Mental Disorders as outlined in 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, a rating of 50 percent is warranted if there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be 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. A 100 percent schedular evaluation contemplates 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 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. The rating agency shall assign a rating 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126. Furthermore, ratings are assigned according to the manifestation of particular symptoms. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment; however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran was afforded a VA examination in June 2014 to evaluate the severity of her PTSD. She reported a history of suicidal ideation and self-harming habits, and also reported experiencing auditory hallucinations. She also acknowledged having persistent nightmares and flashbacks to her in-service military sexual trauma, which she detailed had led her to attack her husband at night while he was sleeping. According to the Veteran she had been working as a nursing assistant and healthcare technician for the past 13 years, and experienced trouble interacting with any people that had a history of military sexual trauma as doing so triggered flashbacks to her own in-service experience. The examiner noted the following symptoms: depression, anxiety, suspiciousness, chronic sleep impairment, 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 worklike setting, and experiencing persistent delusions or hallucinations. Ultimately, it was the examiner’s impression that the PTSD contributed to occupational and social impairment with reduced reliability and productivity. During the January 2012 hearing, the Veteran detailed her symptoms of paranoia and suspiciousness, which she asserted caused her to lock doors and prevented her from sleeping as she experienced nightmares regularly. She also attested to having difficulties being intimate with her husband. According to the Veteran, she experienced flashbacks when she interacted with other victims of sexual abuse and/or trauma through her work as a nursing assistance, and had suffered two panic attacks while at work when triggered in this manner. Treatment records from Living Well Behavioral Health dated from October 2011 to September 2012 show that the Veteran was prescribed anti-anxiety medication, which apparently resulted in her anxiety and paranoia being reduced significantly. Post-service VA medical records show that the Veteran was first diagnosed with PTSD in 2008 and has received intermittent treatment for PTSD through the use of prescription medication and regular therapy. During a consultation dated in July 2015, she reported a history of suicide attempts and a persistent suicidal ideation, although with no documented attempts since 2001. Records from September 2015 reflect that she took care of her grandchildren on occasion and that she saw this responsibility as a deterrent to her suicidal ideation. Apparently, she ceased treatment in December 2015 and began again in April 2017; a consultation dated in April 2017 indicates that she reported experiencing auditory hallucinations inciting her to violence as well as irritability, anxiety, paranoia, and intrusive memories. She sought out treatment again in order to help with her sleeping difficulties, which she attributed to nightmares about her in-service sexual trauma. The most recently available records dated in June 2018 show that the Veteran was prescribed a continuous positive airway pressure (CPAP) machine after being diagnosed with sleep apnea in February 2018, and the early indication was that the CPAP machine had alleviated her sleeping issues significantly. The June 2018 outpatient record also reflects that the Veteran was not reporting any other psychiatric symptomatology. Based on the evidence of record, the Board finds, with resolution of doubt in her favor, that the Veteran’s PTSD symptomatology more nearly approximates the 70 percent criteria for the entire period of the appeal, because the record summarized above indicates that during this period she suffered from suicidal ideation, auditory hallucinations and difficulty in adapting to stressful circumstances, all contributing to an inability to establish and maintain effective relationships that resulted in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. Specifically, the Veteran has a history of three reported suicide attempts, and acknowledged that she experiences persistent suicidal ideation. She also reported that she had suffered anxiety attacks while working as a nursing assistant that were triggered by interactions with other sexual trauma victims. Furthermore, she has consistently detailed experiencing auditory hallucinations suggesting that she commit acts of violence, although she has never acted on these hallucinatory messages. While she has reported having a good relationship with her husband and family, VA medical records do document instances of her detailing arguments she has had with her husband; however, recent records show that her and her husband have attended counseling that has been effective in maintaining their relationship. Ultimately, resolving the reasonable doubt in favor of the Veteran, the Board finds that she is entitled to an evaluation of 70 percent. 38 C.F.R. § 4.130, Diagnostic Code 9411; 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, the Veteran’s symptomatology does not meet the criteria for a 100 percent rating at any time during the appeal period. While the evidence does show that the Veteran has reported experiencing violent auditory hallucinations, by her own admission she has never acted on those hallucinations. Furthermore, the record does not show that she has exhibited the gross impairment in thought process or communication or grossly inappropriate behavior necessary for a 100 percent evaluation. She also does not suffer from disorientation to time or place or memory loss for names of close relatives, own occupation, or own name. She maintains a job as a nursing assistant and recent treatment records show that she has a close relationship with her husband, daughter and grandchildren. There is no indication that she experiences total incapacitation as due to her service-connected PTSD, and thus, a 100 percent evaluation is not warranted. Neither the Veteran nor her representative has raised any additional issues, and no additional issues have been raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel