Citation Nr: 18146791 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 13-27 521 DATE: November 1, 2018 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD has been manifested by symptoms which most closely equate to occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from May 1965 to April 1969. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted service connection for PTSD and assigned a 50 percent rating, effective April 30, 2010. In an August 2013 rating decision, a 70 percent rating was assigned effective from April 30, 2010. In a February 2016 rating decision, a total rating based on individual unemployability due to service-connected disability (TDIU) was granted effective June 8, 2015. The Board remanded this case in August 2017 to obtain additional records and for adjudication of an earlier effective date for TDIU claim. While on remand, in a July 2018 rating decision, the RO granted an effective date of April 30, 2010 for the award of a TDIU. A review of the record reflects substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter has been returned to the Board for further appellate proceedings. 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains 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, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran’s PTSD is rated as 70 percent disabling from April 30, 2010. The RO has rated the Veteran’s PTSD under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s). See 38 C.F.R § 4.130, Diagnostic Code 9411 (PTSD). The General Rating Formula is as follows: A 70 percent rating is warranted where 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); inability to establish and maintain effective relationships. Id. A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran was provided a VA examination in connection with his claim for service connection in October 2010. The Veteran reported that he had never been married, had no children, and was emotionally detached from his parents. He did, however, have a good rapport with his siblings. Additionally, he had few friendly acquaintances whom he saw once every other week and had few intimate relationships that did not last due to his irritability. With respect to activities and leisure pursuits, the Veteran reported that he spent time on the Internet, read, fished, and had a bird-watching hobby. The examiner described the Veteran’s psychosocial functional status as “lives alone, works full time, has a few friendly acquaintances [sic] but mostly keeps to himself and activities are solitary, avoids crowds and loud noise.” October 2010 VA examination at 5. On mental status examination, the Veteran was clean, neatly groomed, and casually dressed. His speech was spontaneous, clear and coherent. He was cooperative toward the examiner. His affect was appropriate and his mood was irritable. He was oriented to time, place, and person. The Veteran’s thought processes were unremarkable and he was reportedly preoccupied several days per week with intrusive thoughts of the plane crash PTSD stressor. The Veteran reported insomnia and that he got 6 hours of sleep and would have nightmares of the plane crash several nights per week. The Veteran’s sister submitted a statement in October 2010 stating that, since leaving the Coast Guard, the Veteran became withdrawn and struggled with alcoholism for 20 years. His parents redesigned their home to create living quarters for the Veteran, who primarily stayed in his quarters and withdrew from family and friends. The Veteran’s sister also stated that he elected to live in the Everglades with limited interaction with people, including his family. When the Veteran and his family had personal contact or contact via telephone, the Veteran would get anxious after approximately 20 minutes and would excuse himself. Two acquaintances of the Veteran, N.B. and B.S., submitted statements in September and October 2010 indicating that they have known the Veteran since the early 1980s but were unable to connect with him, as the Veteran was always very reclusive and would seldom make eye contact or would avoid him. B.S. stated that when he worked with the Veteran, he observed him to become unusually impatient and irritable. N.B. noted that the Veteran had lived in Flamingo for over 20 years and did not have any friends. N.B. stated that the Veteran was a good captain and would have done well as a fishing guide but he “does not deal with anyone,” which was part of the job. The Veteran was afforded a VA examination in June 2012. Since the October 2010 VA examination, the Veteran reported continuing social isolation and minimal interaction with people he had known for decades at the isolated marina where he lived. He had also stopped working as a tour boat operator after an automobile crash in 2011 that “seemed to cause worsening of PTSD symptom of irritability which led to increased conflict with customers.” June 2012 VA examination at 6. Though the Veteran was no longer working as a tour boat operator, his employer allowed him to continue to live in company housing in exchange for volunteering for odd jobs at the marina. The Veteran reported spending his time on the Internet, reading and birdwatching. Symptoms particular to the Veteran’s PTSD included chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control. He also avoided crowds, was anxious in crowds, and was suspicious of strangers. The examiner described his occupational and social functioning as occupational and social impairment with deficiencies in most areas. VA treatment records contain an October 2013 psychiatry note documenting the Veteran’s anxiety after being told that he may have borderline type II diabetes. On mental status examination, the Veteran was well-groomed, cooperative, his cognitive function was intact, and he was oriented to three spheres. His affect was congruent and his energy was decreased. The Veteran’s thought processes were goal-oriented and coherent. He reported recurrent intrusive disturbing thoughts and trauma-related thoughts as well as poor sleep with frequent waking up during the night and nightmares. The Veteran submitted an affidavit in September 2015 wherein he stated that he had to resign from his job as a boat captain due to his inability to work with others in an effective manner. He stated that his job required him to be friendly and social with others but his PTSD caused him to have mood swings and need to seclude himself from others. He also stated that he lived alone in a secluded, wooded area and did not like crowds or large groups of people. The Veteran contended that his PTSD made him feel like his brain was constantly running and he becomes very fatigued as a result. The Veteran stated that he experienced insomnia, nightmares and/or flashbacks 3 times a week which caused him to wake up in a panic, unable to fall asleep again. VA records from October 2015, the Veteran reported that he was having mood swings again and was experiencing insomnia in that he would spend the whole night watching television and then sleep until 3-4pm. He attributed the insomnia to his recent retirement. The VA physician noted that the Veteran was alert, calm and cooperative. He was properly oriented to person, place, time, and situation. His mood was dysthymic and anxious, and he displayed full affect. His thought process was organized and goal-directed and lacked delusions or preoccupations. Insight and judgment were fair, and concentration was intact. The Veteran did not report any suicidal or homicidal ideations. In a January 2016 psychiatry note, the Veteran reported daily PTSD symptoms including trauma-related memories, dreams, avoidance, diminished interest, feelings of detachment, inability to experience positive emotions, irritability, hypervigilance, poor concentration and sleep disturbance. Mental status examination was virtually the same as the October 2015 psychiatry note. In October 2017, the Veteran reported that his brother passed away and that he was one of the few close relationships that the Veteran had. He also reported that he was close to his sister as well. On review of the record, the Board finds that the disability picture presented by the Veteran’s PTSD does not warrant a rating higher than 70 percent. The Veteran has clearly experienced psychiatric symptomatology as a result of his PTSD. Of note, the Veteran was granted TDIU based on the fact that his PTSD rendered him unemployable; however, the Board notes that a 100 percent rating requires, in addition to total occupational impairment, total social impairment. See 38 C.F.R. § 4.130. Here, the Veteran has consistently displayed, albeit limited, social functioning as evidenced by his relationships with his family. Having always displayed some evidence of social competence, the Veteran does not now, nor at any time during the appeal period, have total, meaning complete, social impairment. Of note, the 70 percent rating that the Veteran is currently assigned contemplates an inability to establish and maintain effective relationships, which is a more appropriate description of the Veteran’s social impairment than the term total social impairment. The Board recognizes that the Veteran believes he is entitled to the highest available rating of 100 percent; however, at no time during the pendency of this claim has the Veteran provided VA with any competent, credible and probative evidence sufficient to demonstrate that he meets the diagnostic criteria for the highest schedular evaluation of 100 percent. Although the Board is sympathetic, the Veteran has not provided adequate evidence to demonstrate that he in fact has both total occupational and total social impairment. The weight of the evidence demonstrates that the Veteran’s PTSD is no more than 70 percent disabling for the entire appeal period. The preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel