Citation Nr: 18146973 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-03 407 DATE: November 2, 2018 ORDER Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), with alcohol use disorder, currently rated as 50 percent disabling, is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s PTSD was manifested by symptoms productive of functional impairment comparable to no worse than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an increased disability rating for PTSD with alcohol use disorder, in excess of 50 percent, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran’s claims file is currently under the jurisdiction of the New York, New York RO. In his substantive appeal, the Veteran requested a hearing before a Veteran’s Law Judge of the Board. See VA Form 9, Appeal to Board of Veterans’ Appeals, received January 2015. However, in March 2018, the Veteran’s representative submitted a statement indicating that he wished to withdraw his hearing request. Under 38 C.F.R. § 20.704 (e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, during the pendency of the Veteran’s appeal, a claim for entitlement to a TDIU was considered and denied by the RO in a May 2016 rating decision. In certain instances, bifurcation and separate adjudication of the increased rating claim and the TDIU claim is permitted. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that “it was inappropriate” for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-ratings claim). Moreover, in Locklear v. Shinseki, 24 Vet. App. 311 (2011), the Court acknowledged the Rice decision and held that it is permissive for VA to address a claim for a TDIU independently of other claims, including increased rating and service connection claims. The May 2016 rating decision’s denial of entitlement to a TDIU constitutes the permissible bifurcation and adjudication of the TDIU claim separate from the increased rating claim under Roebuck, Holland, and Locklear. To date, no appeal has been taken from that separate adjudication. 1. Entitlement to an Increased Disability Rating for PTSD Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Analysis The Veteran seeks a higher rating for his service-connected PTSD. The Veteran’s service-connected PTSD is rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran’s increased rating claim was received on November 22, 2013. Therefore, the relevant rating period is from November 23, 2012, one year prior to receipt of the claim, through the present. See, 38 C.F.R. § 3.400 (o) (2). The Veteran’s service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders. Relevant to the issue on appeal, under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for 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 complete 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 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); inability to establish and maintain effective relationships. A maximum 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 of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 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). Accordingly, consideration is given to all symptoms of the Veteran’s PTSD that affect the level of occupational and social impairment. Turning to the relevant evidence of record, a February 2014 VA treatment record reflects that the Veteran denied flashbacks and had occasional nightmares. He also denied suicidal or homicidal ideations. The Veteran was provided a VA examination in November 2014. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported current symptoms of intrusive distressing memories and dreams, marked physiological reactions to internal/external cues symbolizing or resembling traumatic events, avoidance of distressing memories, thoughts and feelings associated with traumatic events, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, hypervigilance and sleep disturbances. The Veteran reported that he continues to live with his wife and son. He reported an improved relationship with his wife and a good relationship with his children. The Veteran stated he has one or two friends and socializes with his wife’s family. The VA examiner noted symptoms of depressed mood and chronic sleep impairment. Upon examination, the Veteran’s mood was moderately depressed and affect was congruent. The VA examiner summarized the Veteran had occupational and social impairment of reduced reliability and productivity. The Veteran was provided a VA examination in December 2015. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported symptoms of intrusive thoughts and memories, avoidance of thoughts and memories, irritability, nightmares, hypervigilance, and exaggerated startle response. The Veteran reported that he lives with his wife and son and that he has a good relationship with his family. He reported few friends because he has anger towards the general population. The Veteran reported that he is not currently working but would like to find work. The VA examiner noted PTSD symptoms of depressed mood, anxiety, and chronic sleep impairment. The VA examiner summarized the Veteran’s occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran’s VA treatment records reflect that he has received psychiatric care. A January 2016 VA psychiatry note reflects that the Veteran complained of insomnia. The Veteran denied active or passive thoughts of self-directed violence. He reported flashbacks, nightmares and avoidance. During the entire period on appeal, a rating in excess of 50 percent for PTSD is not warranted. The Board finds that the next higher rating of 70 percent is not warranted because the Veteran’s functional impairment associated with his PTSD has not been shown to be comparable to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. The medical evidence of record shows symptoms of depressed mood, sleep impairment and hypervigilance, which are considered by the assigned 50 percent rating. The medical evidence also shows that the Veteran had a good relationship with his wife and children, and had a few friends outside his family. The Board notes that symptoms such as depressed mood, sleep disturbances and hypervigilance are considered by the 50 percent disability rating. Additionally, the Board finds that, during the entire period on appeal, the Veteran’s PTSD symptoms were not productive of functional impairment more comparable to deficiencies in most areas such as work, school, family relations, thinking or mood. In addition, the Veteran is not entitled to a 100 percent rating during the entire period on appeal. The evidence does not demonstrate total occupational and social impairment as a result of his service-connected PTSD. The Veteran’s disability has not manifested in symptoms productive of functional impairment comparable to such level of impairment. As examples, there has been no demonstration of functional impairment comparable to 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; or memory loss for names of close relatives, own occupation or own name. The Veteran has not reported any suicidal or homicidal ideation. The Veteran has maintained a good relationship with his wife and children. As such, the Board finds that a 100 percent rating is not warranted. As the evidence does not reflect total occupational and social impairment, a 100 percent rating is not warranted. 38 C.F.R. § 4.130 The Board notes that the Veteran is competent to report symptoms of his PTSD, as doing so requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board has considered his reported symptoms. The Veteran is also credible in his belief that he is entitled to a higher rating. However, the Veteran is not competent to render an opinion as to the relative severity of his PTSD as applied to the rating schedule Diagnostic Code criteria, as doing so requires specialized medical knowledge or expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006). The Board instead relies on the competent findings of record provided by medical professionals, given the professionals’ expertise in evaluating mental disorders. The probative evidence does not support a finding that a rating in excess of 50 percent is warranted for the Veteran’s PTSD with alcohol use disorder. The Board therefore finds that the criteria for a rating in excess of 50 percent for the Veteran’s service-connected PTSD with alcohol use disorder have not been met at any time during the rating period. Accordingly, there is no basis for staged ratings of the Veteran’s PTSD with alcohol use disorder pursuant to Fenderson, 12 Vet. App. at 126-27, and a higher rating must be denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel