Citation Nr: 18150453 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-41 411 DATE: November 15, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to an initial 10 percent rating, but no more, for hammertoes of the left foot is granted. Entitlement to an initial rating in excess of 10 percent for right foot surgical scars is denied. Entitlement to an initial rating of 10 percent, but no more, for left foot surgical scars is granted. Entitlement to an initial rating of 50 percent, but no more, for a headache condition is granted. Entitlement to an initial rating of 70 percent, but no more, for an acquired psychiatric disorder, to include major depressive disorder, generalized anxiety disorder and obsessive-compulsive disorder, is granted. FINDINGS OF FACT 1. The preponderance of the competent medical evidence does not demonstrate that hypertension was incurred in service, manifested within a year of service, or is otherwise attributable to the Veteran’s service. 2. The Veteran’s left hammertoe disability does not affect all toes of her left foot; however, it is actually painful. 3. The Veteran has a three-centimeter long by three-centimeter wide superficial scar on both his right second and third toe that are each painful but not unstable. 4. The Veteran has a one-centimeter long by .2-centimeter wide superficial scar on both his left second and third toe that are each painful but not unstable. 5. The Veteran’s service-connected headache condition is characterized by frequent prostrating attacks productive of severe economic inadaptability. 6. For the entire period of the appeal, the Veteran’s acquired psychiatric disorder, as likely as not, was manifested by a history of passive suicidal ideation; persistent visual 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. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 1116, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to an initial 10 percent rating, but no more, for left foot hammertoes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282. 3. The criteria for entitlement to an initial rating in excess of 10 percent for right foot surgical scars have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804. 4. The criteria for entitlement to an initial rating of 10 percent, but no more, for left foot surgical scars have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804. 5. The criteria for an initial 50 percent, but no higher, disability rating for the service-connected headache condition have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Code 8100. 6. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a disability rating of 70 percent rating, but no higher, for an acquired psychiatric disorder 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1994 to March 2002. 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 full-time. 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. Accordingly, a claim for entitlement to TDIU has not been raised by the record. The Board also notes that 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). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for hypertension is denied. The Veteran contends that her hypertension, first formally diagnosed after service, manifest in service and has continued ever since. The question for the Board is whether the Veteran has hypertension that began during service or is at least as likely as not related to an in-service injury, event, or disease. In the alternative, the question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has hypertension, which is a chronic disease under the appropriate regulations, it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to hypertension. Blood pressure readings taken during service never met the levels necessary to qualify for a diagnosis of hypertension for VA purposes. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board acknowledges that the claims file does not contain a copy of the Veteran’s discharge examination, and in such cases VA has a heightened duty with regards to assisting the Veteran in obtaining evidence in support of her claim. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Ultimately, however, there is no evidence in the claims file to suggest that the Veteran had hypertension for VA compensation purposes while in service. Accordingly, service connection for hypertension on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied. Post-service VA medical records show that the Veteran was diagnosed with pregnancy-induced hypertension in April 2011. Subsequent outpatient records reflect that the Veteran has continued to receive treatment for hypertension since that initial diagnosis with no indication that the condition was attributed to any cause other than her pregnancy in 2011. On this basis, therefore, the Board concludes that there is no evidence that the Veteran’s hypertension manifested within the applicable one-year presumptive period, and, accordingly, service connection for hypertension on a presumptive basis as a chronic disease is denied. 38 C.F.R. § 3.307(a)(3). The Veteran was afforded a VA examination in March 2012 to evaluate the nature of her hypertension. The examiner confirmed a diagnosis of hypertension, and detailed that the condition was first diagnosed in March 2011. No mention was made of the etiology of the condition. While the Veteran is competent to report having experienced symptoms of hypertension and when they began, she is not competent to provide a diagnosis in this case or determine that any such symptoms were manifestations of hypertension. The issue is medically complex, as it requires the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges that VA has not elicited an opinion as to the etiology of the hypertension; however, it does not have a duty to obtain one here, as there is no indication that the condition may be associated with the Veteran’s service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). There is no competent evidence in the claims file that the Veteran’s hypertension is related to service or that she developed it within a year of service as would be necessary for entitlement to service connection on a presumptive basis, and the Veteran has submitted no objective medical evidence of her own in support of her claim. Accordingly, the Board finds that the preponderance of the evidence is against granting entitlement to service connection for hypertension. Consequently, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40. 1. Entitlement to a compensable initial rating for hammer toes of the left foot The Veteran’s left foot hammer toes have been rated as noncompensable pursuant to Diagnostic Code 5282, which specifically provides ratings based on hammer toes. Hammer toe of a single toe is rated noncompensable (0 percent) disabling. Unilateral hammer toe of all toes, without claw foot, is rated 10 percent disabling. 38 C.F.R. § 4.71a. The Veteran has been afforded two VA examinations, in December 2013 and most recently in May 2015, both of which show that she had hammertoes in the left second and third toe and right second toe that were corrected surgically in 2004. Specifically, the examiners each acknowledged that the left hammertoes had not resolved since the 2004 surgery, but detailed that the Veteran reported experiencing overall improvement in pain symptoms with an increase in toe joint pain coinciding with weather changes. A review of the available post-service medical records confirms that the Veteran has continued to receive treatment for hammertoes via the use of orthotic inserts and specialty footwear and that she has largely reported experiencing relief from her symptoms. Based on the available evidence, the Board concludes that a compensable rating is not warranted for the Veteran’s left foot hammertoes on a schedular basis as her disability does not affect all toes. Instead, it approximates hammer toe of only the left second and third toe. Under Diagnostic Code 5282, this results in no more than a noncompensable rating. That being stated, the Board does acknowledge that the Veteran has reported experiencing significant pain associated with her left foot hammertoe condition. Pursuant to 38 C.F.R. § 4.59, a minimum compensable rating (10 percent) is warranted for actually painful joints. Although the Veteran is currently in receipt of a 10 percent rating for bilateral pes planus, it is not clear from the record that the entirety of her left foot pain is attributable to her separately service-connected bilateral pes planus condition. Accordingly, granting her the benefit of the doubt, an initial 10 percent evaluation is warranted for functional impairment stemming from the Veteran’s left foot hammertoes pain, and this claim is granted to that extent. 2. Entitlement to an increased initial rating for right foot surgical scars The Veteran is service-connected for scars resulting from right foot hammertoe surgery. She is in receipt of a 10 percent initial rating for scars on her right second and third toe and seeks a higher rating for the entire period of the appeal. The rating for these scars was assigned pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804, which corresponds to unstable or painful scars. Diagnostic Code 7804 provides that a 10 percent rating is to be awarded for one or two scars that are unstable or painful, while a 20 percent rating is warranted for three or four such scars and a 30 percent rating is warranted for five or six such scars. Note 1 to Diagnostic Code 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 to Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. The Board notes that on July 13, 2018, VA published in the Federal Register a final rule amending the Schedule for Rating Disabilities by revising the portion of the schedule addressing deep scars under Diagnostic Code 7801 and superficial scars under Diagnostic Code 7802. 83 Fed. Reg. 32592 (July 13, 2018). In publishing this revised rule VA stated that the amendment applied to claims pending prior to the effective date, such that both the old and the new rating criteria would be considered and whatever criteria was more favorable to the Veteran would be applied. Potentially pertinent to this claim, the amended criteria revised Diagnostic Code 7801 such that it considered not deep scars but rather scars associated with underlying soft tissue damage. Diagnostic Code 7802 applies in equal measure under the old and new criteria to superficial scars measuring 929 square centimeters or greater. Application of this new criteria, however, does not change the outcome of the claim, given the facts found. The severity of the Veteran’s right foot scars was first evaluated in a December 2013 VA examination. A physical examination revealed a three-centimeter superficial scar on both the second and third right toes. The Veteran reported that both right foot scars were painful, but the examiner did not find any evidence that either scar was unstable. It was the examiner’s impression that both scars were well-healed and that they did not result in functional impairment. The Veteran was more recently afforded a VA examination to evaluate the severity of the right foot scars in May 2015. According to this examiner, the Veteran did not have any scars on her right foot. Post-service VA and private outpatient records reflect that the Veteran has continued to report experiencing painful right foot scars. Based on a review of the evidence, the Board does not find that a rating in excess of 10 percent is warranted for the right foot scars. The scars were reported as being painful but not unstable during the December 2013 examination, and the Veteran has maintained that the scars are painful since that examination. While no scars were noted on the May 2015 examination, the preponderance of the evidence still suggests that the Veteran is experiencing painful right foot scars that are attributable to her right foot hammertoe surgery, and as such, the Board will not disturb the 10 percent rating, which corresponds to the two scars being painful but not unstable. The Board has also considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran’s right foot scars, but finds that no higher rating is assignable under any other diagnostic code. Specifically, Diagnostic Code 7800 contemplates a scar of the head, face, or neck, while under the old criteria Diagnostic Code 7801 contemplates a deep scar and under the new criteria Diagnostic Code 7801 contemplates a scar associated with underlying soft tissue damage. Diagnostic Code 7802 under both the old and new criteria contemplates a superficial scar with an area of 929 square centimeters. The scars in question are both superficial and are not associated with any underlying soft tissue damage. Neither scar, which are both measured at three centimeters squared, warrant a compensable rating under Diagnostic Code 7802 using either the old or new criteria. Finally, Diagnostic Code 7805 contemplates scars that are not otherwise rated under Diagnostic Code 7800-7804. In summation, a rating in excess of 10 percent is not warranted for the Veteran’s right foot scars. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating. 38 U.S.C. § 5107. 3. Entitlement to a compensable initial rating for left foot surgical scars The Veteran is service-connected for scars resulting from left foot hammertoe surgery. She is in receipt of a noncompensable initial rating for scars on her left second and third toe and seeks a compensable rating for the entire period of the appeal. The noncompensable rating for these scars was assigned pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805, which provides that scars (including linear scars) not otherwise rated under Diagnostic Codes 7800-7804 are to be rated based on any disabling effects not provided for by those codes. However, as will be discussed in further detail, the available evidence suggests that the Veteran’s left foot scars are actually painful, and, as such, Diagnostic Code 7804, which corresponds to painful or unstable scars, is more appropriate for rating the left foot scars. On both the December 2013 and May 2015 VA examination, the Veteran was evaluated as having a superficial scar on the left second and third toe, each measured at one centimeter long by .2 centimeters wide. On both examinations the Veteran did not report that either left foot scar was painful, and the examiner did not find any evidence on either examination that the scars were unstable. It was the examiner’s impression on both examinations that the left foot scars were well-healed and that they did not result in functional impairment. Post-service VA and private outpatient records reflect that the Veteran has continued to report experiencing painful left foot scars. Based on a review of the evidence, the Board finds that a rating of 10 percent, but no more, is warranted for the left foot scars. The Veteran has maintained that her left foot scars are painful; however, there is no evidence that either left foot scar is unstable. Thus, a 10 percent rating, corresponding to two painful left foot scars, is appropriate. Once again, the Board has considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran’s left foot scars, but finds that no higher rating is assignable under any other diagnostic code. Specifically, Diagnostic Code 7800 contemplates a scar of the head, face, or neck, while under the old criteria Diagnostic Code 7801 contemplates a deep scar and under the new criteria Diagnostic Code 7801 contemplates a scar associated with underlying soft tissue damage. Diagnostic Code 7802 under both the old and new criteria contemplates a superficial scar with an area of 929 square centimeters. The scars in question are both superficial and are not associated with any underlying soft tissue damage. Neither scar, which are both measured at one centimeter long by .2 centimeters wide, warrants a compensable rating under Diagnostic Code 7802 using either the old or new criteria. Finally, as stated, Diagnostic Code 7805 contemplates scars that are not otherwise rated under Diagnostic Code 7800-7804. In summation, a rating of 10 percent, but no more, is warranted for the Veteran’s left foot scars. The preponderance of the evidence demonstrates that the left foot scars are painful but not unstable, and there are no other applicable criteria which would allow for a higher or separate rating. To this extent only, the appeal is granted as to this claim. 4. Entitlement to an increased initial rating for a headache condition The Veteran is in receipt of a 30 percent initial disability rating for migraine headaches. She seeks a higher rating for the entire period of the appeal. The 30 percent rating was assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 30 percent disability rating is warranted for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. VA regulations do not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson v. West, 12 Vet. App. 119 (1999). By way of reference, the Board notes that according to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “prostration” is defined as “complete physical or mental exhaustion.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness.” VA regulations also do not define “economic inadaptability.” However, the United States Court of Appeals for Veterans Claims has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran was first afforded a VA examination to evaluate the severity of her headache condition in December 2013. She reported experiencing constant head pain on both sides of her head that worsened with physical activity, as well as sensitivity to light and sound. According to the Veteran, her headaches would last one to two days at a time. She also endorsed experiencing prostrating attacks of migraine headache pain more than once per month. After concluding the in-person examination, the examiner set forth a diagnosis of tension migraine headaches, and found that the Veteran could not work when she was experiencing an episode of migraine pain. The severity of the Veteran’s headache condition was most recently evaluated in May 2015, during which she reported experiencing intermittent pulsing pain on both sides of her head associated with light sensitivity. On this examination, she did not endorse experiencing symptoms for longer than a day, and, furthermore, did not report using any medication to alleviate her headache symptoms. Moreover, the examiner did not note that the Veteran had any characteristic prostrating attack of migraine headache pain. It was the examiner’s impression that the headache condition had no impact on the Veteran’s ability to work. VA medical records show that the Veteran has received treatment through VA for a headache condition since 2007. She has been intermittently prescribed medication to alleviate her symptoms, with her most recent outpatient records dating from 2017 reflecting that she was using said medication. In a June 2016 neurology consultation, she reported that she regularly takes time off of work when experiencing a migraine headache episode. Thereafter, a September 2016 record reflects that her treating physician advised her to avoid lights and noise when she experiences a migraine headache episode. According to a December 2016 treatment report, she was more recently prescribed a Cefaly device to alleviate her migraine headache pain, although she still endorsed experiencing episodes of migraine headaches several times per month. In a September 2015 correspondence, the Veteran reported that she experienced migraine headaches three to four times per week, and stated that when an episode occurred she needed to lie in a dark room for hours at a time. Similarly, in a January 2017 correspondence, the Veteran again reported that she experienced migraine headaches three to four times per week, with symptoms lasting up to two or even three days at a time. She also stated that she had missed “countless amounts of days and hours at work” due to her experiencing migraine headache episodes. Upon consideration of the record, the Board finds that a 50 percent disability rating is warranted for the headache condition. The Veteran has continually reported experiencing headaches more than once a month of such severity that she was required to sit in a dark quiet room for hours at a time, which clearly qualifies as prostrating in nature. Although the May 2015 examiner did not note that the Veteran experienced any prostrating attacks of migraine headache pain, this directly conflicts with both the Veteran’s own reporting as well as the evaluation of the December 2013 examiner, who detailed that the Veteran did experience prostrating attacks and further noted that they occurred more than once a month. Moreover, the Veteran has continued to report that she has had to miss work on several occasions when experiencing migraine headache pain, which was acknowledged by the December 2013 examiner who found that the Veteran would not be able to work when she was having an episode of migraine headache pain. The Board also highlights that the May 2015 examiner did not find that the Veteran required the use of medication for her headache condition, which does not accord with the evidence of record showing that the Veteran has been prescribed medication as well as a Cefaly device to alleviate her migraine headache pain. This inaccurate assessment of the available evidence casts serious doubt on the probative value of the May 2015 examiner’s evaluation. In summation, the Board finds that the preponderance of the evidence reflects that the headache condition results in very frequent, completely prostrating attacks productive of severe economic inadaptability, and that therefore a 50 percent initial rating is warranted for the disability. There is no higher schedular rating that can be assigned for migraine headaches by regulation. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. 5. Entitlement to an increased initial rating for an acquired psychiatric disorder Service connection is in effect for an acquired psychiatric disorder with an initial disability rating of 50 percent. The Veteran seeks to have an increased rating for the entire period on appeal. 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 December 2013 to evaluate the severity of her acquired psychiatric disorder, which was characterized as both major depressive disorder and generalized anxiety disorder. The examiner acknowledged that they could not distinguish between the symptoms attributable to each separate diagnosis, noting that the two disorders were comorbid, interacting, mutually aggravating and shared overlapping symptoms. The Veteran reported experiencing anergia, amotivation, anhedonia, depression, avoidance of work and people, persistent worry, and sleep disturbances, but did not endorse experiencing any hallucinations or suicidal/homicidal ideation. After an in-person interview, the examiner noted the following symptomatology: depression, anxiety, near-continuous panic affecting the ability to function independently, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Ultimately, it was the examiner’s impression that the acquired psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity. The Veteran was more recently afforded a VA examination in April 2015 to again evaluate the severity of her acquired psychiatric disorder. The examiner again noted diagnoses of major depressive disorder and generalized anxiety disorder, and further added a diagnosis of insomnia. Once more, the examiner found that it was not possible to distinguish between the symptoms attributable to each separate diagnosis, stating that the symptoms overlapped in poor sleep patterns, lack of desire to engage with others, and moodiness. The Veteran reported that she was currently in private outpatient therapy and was prescribed medication to alleviate her symptoms, which included irritability, moodiness, depression, anxiety, avoidance behaviors, poor sleep, low energy and poor motivation. She did not endorse experiencing any suicidal or homicidal ideation. After an in-person interview, the examiner noted the following symptomatology: depression, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. This examiner similarly found that the acquired psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity. The Veteran has submitted numerous statements detailing her mental health and insomnia symptomatology. In a September 2015 correspondence she reported that she engages in obsessive behaviors that she feels prevent her from engaging with others. She also acknowledged feeling paranoid on a regular basis, and endorsed experiencing intermittent depression. More recently, in a January 2017 correspondence, she again detailed obsessive rituals that she engages in, and went into further detail regarding her feelings of paranoia. She also reported experiencing visual hallucinations during the day and nightmares at night which significantly impacted her sleep. Post-service VA medical records show that the Veteran was first diagnosed with major depressive disorder in 2007 and has received regular treatment for an acquired psychiatric disorder ever since. In a March 2016 mental health evaluation, she reported a history of one suicide attempt in 2007; although the Board cannot find documentation that this occurred, there are VA treatment records dating from 2007 which show that she scored positively on a suicide risk assessment. There is also an outpatient record from October 2007 in which the Veteran reported that she considered taking her life while in the midst of a panic attack but had no intent beyond this initial train of thought. Recently, in February 2017 she reported experiencing visual hallucinations during the day. Outpatient records from Carolina Psychiatry dated in 2015 show that the was receiving regular treatment during this time for symptoms of depression, anxiety, nightmares, intrusive thoughts, and mood swings. These records do not reflect that the Veteran endorsed experiencing hallucinations or suicidal/homicidal ideation. 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, as the record summarized above indicates that she had a history of at least passive suicidal ideation, and further endorsed experiencing visual hallucinations, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Taken together with those symptoms already encompassed in the 50 percent rating, these newly recognized symptoms resulted in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. Specifically, the Veteran’s lay statements, as well as numerous statements from her family and friends, demonstrate that she has significant difficulty establishing effective social and occupational relationships. More recently, she has endorsed experiencing visual hallucinations. 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 visual 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 warehouse supervisor, and recent treatment records show that she has a close relationship with at least one of her daughters. 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. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel