Citation Nr: 18149648 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-32 976 DATE: November 13, 2018 ORDER Entitlement to a rating of 70 percent, but no more, for posttraumatic stress disorder (PTSD) is granted on and after August 6, 2015, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran’s PTSD, throughout the period on appeal, has been manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, on and after August 6, 2015, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 2003 to August 2015, including service in Iraq and Afghanistan, for which his decorations include the Purple Heart. This matter is on appeal from an August 2015 rating decision. Neither the Veteran nor his representative have raised any issue 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). 1. PTSD The Veteran contends that his PTSD warrants higher ratings than those currently assigned. It is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD, with a 30 percent rating from August 6, 2015 to March 20, 2016 and a 50 percent rating on and after March 21, 2016. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “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. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, 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; and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, occupation, or own name. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. See Vazquez–Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA shall assign an evaluation 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, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Veteran was afforded a VA examination in September 2014, nearly a year before his separation from active duty service. The Veteran reported that he had been married for a year, had attended marriage counseling, and found it helpful. He also reported that he had two children and that they were doing well. He reported intrusive thoughts, nightmares, irritability, insomnia, and hypervigilance. The examiner listed the Veteran’s symptoms for rating purposes as depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, and mild memory loss. However, the examiner added that the Veteran “tried hard to be cooperative, but was clearly in great distress during the evaluation” and that it was “very difficult for him to talk about his symptoms and even more difficult to talk about the death of his friends in battle.” The examiner characterized the Veteran’s overall level of functional impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with a 30 percent rating. The examiner found that the Veteran did not appear to pose any threat of danger or injury to himself or others. During a September 2015 VA treatment appointment, the Veteran presented as guarded and responded to questions without elaboration. In the Veteran’s October 2015 Notice of Disagreement (NOD), the Veteran’s representative listed his symptoms as including anxiety attacks at least twice a week causing him “to literally shake and become confused,” periods of “overload” when having to complete a multi-tasked problem, short-term memory loss requiring the use of a daily calendar and notes, a tendency to become depressed easily, motivational problems causing him to “lay in bed and do nothing,” isolating himself from others including his spouse, having no desire to socialize with anyone, suicidal ideation, hypervigilance, neglect of personal hygiene including wearing the same clothes and not showering for three to four days at a time, weekly intrusive thoughts, difficulty with focus and concentration, and frequent periods of unprovoked irritability leading to angry outbursts toward his children and spouse. The Veteran’s representative also reported that the Veteran’s spouse had filed for divorce due to the severity of the Veteran’s symptoms. During a January 2016 VA treatment appointment, the Veteran’s ability to maintain personal hygiene was within normal limits, he was oriented, his memory was within normal limits, and he denied suicidal or homicidal ideation. He reported that he was socially avoidant and only interacted with his former spouse in connection with his children, with whom he was in contact three to four times a week. He also reported being easily startled, always on alert, and having panic attacks and lack of motivation. He also reported angry outbursts, including verbal altercations with “anyone that does not listen.” During a VA treatment appointment later in January 2016, the Veteran reported fleeting suicidal ideation without intent. During another VA treatment appointment later in January 2016, the treatment provider noted difficulty engaging with the Veteran and that he was quiet and often responded to questions with “I don’t know.” The treatment provider noted that the Veteran’s grooming and hygiene were good. The Veteran was afforded an additional VA examination on March 21, 2016. The Veteran reported that he and his spouse had divorced in December 2015 and that they shared custody of their two children, who he saw regularly. He reported that he lived with a roommate he did not often see and that his siblings did not maintain contact with him because he was not interested. However, he reported that he spoke with his parents about once a week and that they visited each other about once a year. He reported that he preferred to be by himself, was uncomfortable around people, and had no friends with whom he spent time, but spoke to former military friends occasionally. He also reported that he was unemployed and not enrolled in school but was hoping to pursue educational goals. He reported a significant startle response and being alert and watchful when not at home. He also reported avoiding reading because of concentration difficulties. He denied assaultive behavior but admitted some road frustration he kept to himself. The examiner listed the Veteran’s symptoms for rating purposes as chronic sleep impairment, flattened affect, disturbances of motivation and mood, and suicidal ideation. On examination, he was appropriately dressed and groomed, his affect was noticeably flat with little energy, he occasionally spoke softly enough to have to repeat himself, he was oriented, he denied delusions or hallucinations, he reported passing thoughts of self-harm without intent or action, he denied panic attacks, there was no impairment of impulse control, and his ability to maintain minimum hygiene was normal. The examiner noted that the Veteran appeared to be disengaged with the meeting, with little interest or concern about being present. The examiner characterized the Veteran’s overall level of functional impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with a 30 percent rating. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his psychiatric symptoms and overall disability picture warrant an evaluation of 70 percent for PTSD throughout the period on appeal. The NOD, which was submitted two months into the period on appeal, lists symptoms not noted elsewhere, such as neglect of personal hygiene, but also reports suicidal ideation, which the Veteran reported to a treatment provider a few months later in January 2016 and which a VA examiner noted in March 2016. Suicidal ideation is one of the symptoms contemplated by the 70 percent criteria. The Board also notes that VA examiners and treatment providers have frequently characterized the Veteran as having difficulty freely and openly discussing his symptoms, which raises the possibility that his actual symptoms might be more severe than those noted in treatment records and examination reports. The Board therefore finds that it is at least as likely as not that the Veteran’s symptoms most nearly approximate those that warrant a 70 percent rating. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board does not, however, find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran’s symptoms at any point during the period on appeal. The record contains no evidence of any of the symptoms contemplated by the 100 percent criteria, with the possible exception of danger of self-harm. Self- harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, even the constant presence of some symptoms listed in the criteria for a 100 percent rating is insufficient because the overall guiding criterion for a 100 percent rating is that both total occupational and total social impairment be present. 38 C.F.R. § 4.130; see, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Veteran’s symptoms have not been shown to be so severe that he has both total occupational and total social impairment. The Veteran has been able to maintain some personal relationships, specifically with his children, parents, and military friends. The Board acknowledges that these relationships are sometimes strained or distant, but that is reflected in the current 70 percent rating for “deficiencies in most areas,” which contemplates symptoms including inability to establish and maintain effective relationships. Because the Veteran is not totally socially impaired, a 100 percent rating is not warranted. Although the Veteran is unemployed, he has not contended that he is unemployable as a result of his service-connected PTSD and, because he is not totally socially impaired, it is not necessary for the Board to determine whether he is totally occupationally impaired. The Board also notes that many of the Veteran’s reported symptoms throughout the period on appeal are included among those specifically listed in the General Rating Formula for Mental Disorders, pursuant to which a 70 percent disability rating has been assigned. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran’s extent of occupational and social impairment. Accordingly, in this case, the Board finds that the existence and severity of the Veteran’s psychiatric symptoms are adequately contemplated by the 70 percent rating criteria. As noted above, many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board has also considered the Veteran’s assertions regarding his psychiatric symptoms, which he is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The lay evidence is also credible. However, these lay statements do not provide any basis upon which to assign a higher rating because they do not reflect total social impairment. In sum, the Board finds that, resolving reasonable doubt in the Veteran’s favor, his impairment due to PTSD has been most consistent with a 70 percent disability rating throughout the period on appeal. At his March 2016 VA examination, the Veteran stated that he had not worked since his discharge from service less than one year prior to the examination. He stated that he wanted to pursue educational goals. He did not assert that his PTSD or other service-connected disabilities prevented him from working. A January 2016 VA mental health treatment note showed that he was excited about job training with a military contractor. He was leaving Hawaii for 6 weeks to train. But then in March 2016 he stated that he did not get the job because the employer decided not to offer it to anyone. The record does not show, nor does the Veteran assert, that he is unemployable due to his service-connected disabilities. A TDIU is not for consideration in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel