Citation Nr: 18149383 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 17-16 618 DATE: November 9, 2018 ORDER An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire initial rating period, the Veteran’s PTSD has been manifested by symptoms including anxiety, restlessness, chronic sleep impairment, depressed mood, and mild memory loss. CONCLUSION OF LAW The criteria for an initial rating greater than 30 percent for PTSD are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1975 to February 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In November 2015, the Veteran revoked North Carolina Division of Veterans Affairs as his power of attorney prior to the certification of this appeal. The record reflects that the Veteran has indicated a desire to individually pursue his claim. Thus, the Board will proceed under the assumption that he wishes to represent himself. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised by the record in connection with the service-connected disability currently on appeal and, thus, is not addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to an initial rating in excess of 30 percent for PTSD The Veteran was granted service connection and a 30 percent disability evaluation for PTSD in a December 2015 rating decision, effective August 17, 2015. The Veteran contends that his PTSD warrants a higher initial rating. After a thorough review of the evidence, the Board finds that a higher initial rating is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when 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). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in August 2015. Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). In this case, the Board considers whether an initial rating in excess of 30 percent is warranted at any time since the date of claim on August 17, 2015. Under the General Formula for Rating Mental Disorders, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. The next-higher 50 percent rating is warranted where the disorder is manifested by 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; difficulty in establishing and maintaining effective work and social relationships. Id. 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 ideations; obsessional rituals that 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 when there is 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. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The nomenclature employed in the portion of VA’s rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. The Board notes VA implemented usage of the DSM-5, effective August 4, 2014. As this case was initially certified to the Board in September 2017, the DSM-5 is for application in this case. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Review of the evidentiary record since the date of claim on August 17, 2015 documents the following symptomatology for the Veteran’s PTSD. The Veteran has been in regular psychiatric therapy since the time of the claim and has submitted the relevant treatment records. A November 2015 therapy note recorded the Veteran’s symptoms to include irritability, insomnia, trouble focusing, little social life, and sometimes forgetting things. The Veteran was married and had worked at the same employer for 17 years. The Veteran did not report suicidal or homicidal intentions. There was no report of hallucinations. The Veteran reported being uncomfortable in crowds. The Veteran was afforded a VA examination in November 2015. The examiner noted no hallucinations, no suicidal or homicidal intentions. The Veteran reported symptoms like anxiety, chronic sleep impairment, and mild memory loss. The examiner noted that the Veteran had a flat affect. The examiner selected the category coinciding with a 10 percent disability rating for PTSD. From December 2015 to January 2017, the Veteran continued to have therapy for PTSD. The therapist recorded symptoms such as anxiety, restlessness, obsession with “being safe,” trouble sleeping (alleviated with medication), depression, difficulty with crowds, and hyperarousal. The Veteran reported he continued work at the same employer. At a January 2017 therapy appointment, the Veteran’s affect was dull and the Veteran reported feeling isolated. The Board finds, after a thorough review of the evidence, that the Veteran’s service-connected PTSD has not been manifested by occupational and social impairment with reduced reliability and productivity. As discussed above, the Veteran’s psychiatric disability has been manifested by irritability, sleep impairment, difficulty focusing, mild memory impairment, discomfort in crowds, anxiety, restlessness, depression, and hyperarousal. While the Veteran reported symptoms that might be indicative of disturbances of motivation and mood, as well as difficulty in establishing and maintaining effective work and social relationships, he remained gainfully employed on a full-time basis. Accordingly, an initial rating in excess of 30 percent is not warranted at any time during the appeal period. See 38 C.F.R. § 4.130, DC 9411. The Board is aware that the symptoms listed under the next-higher ratings of 50, 70, and 100 percent are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Moreover, entitlement to such an evaluation requires sufficient symptoms of the requirements, or others of similar severity, frequency, or duration, that cause the specific type of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 117-18. In this case, the Board has considered these higher ratings for the entire appeal period but finds that it is rated appropriately. The signs and symptoms manifested are contemplated by the currently assigned rating of 30 percent as they do not manifest with the severity required for a higher rating. The Board has considered the Veteran’s reported history of symptomatology related to the service-connected PTSD. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). His credible descriptions of his observable symptoms are not more closely described by the 50, 70, or 100 percent criteria. Lastly, the Board has considered the possibility of staged ratings and finds that the scheduler rating for the service-connected disability on appeal has been in effect for appropriate period on appeal. Accordingly, staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Miller, Erin (BVA)