Citation Nr: 18150651 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-39 264 DATE: November 15, 2018 ORDER Entitlement to an evaluation of 70 percent for service-connected posttraumatic stress disorder (PTSD) is granted, subject to the regulations governing the payment of monetary benefits. FINDING OF FACT For the entire period on appeal, the symptoms of the Veteran’s service-connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood; total occupation and social impairment was not shown. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1978 to November 1998. He received the Prisoner of War Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2018. Entitlement to an evaluation in excess of 50 percent for service-connected PTSD. A. Legal Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In determining the severity of a disability, the Board is required to consider 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 the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 50 percent is warranted for a mental disorder that results in 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 rating of 70 percent is warranted for a mental disorder that results in 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 rating is assigned when the condition results in 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. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Merits The Veteran is currently assigned a disability rating of 50 percent for his service-connected PTSD. Nevertheless, the Veteran has continually asserted that the symptoms he experiences as a result of the condition entitle him to a higher rating for that disability. As will be discussed more fully below, the Board finds that an increased rating of 70 percent for PTSD is warranted. In April 2014, the Veteran underwent a VA examination to assess the current severity of his PTSD. The Veteran reported that he had been in a good marriage for twenty-eight years and that his relationships with his sons were also good. The Veteran had become self-employed after the events of September 11, 2001 to reduce stress. While generally successful at work, he indicated that for the previous two years he had been having more difficulty completing the work due to mental health issues, despite medication and counseling. Symptoms he experienced included depression, anxiety, impaired concentration and reasoning ability, sleep disturbance and isolating behavior. These symptoms were further exacerbated by the suicide of the Veteran’s close friend from service in January 2014. A private medical opinion from the Veteran’s treating mental health provider dated February 2015 documented not only the symptoms experienced by the Veteran but also addressed the impact of unrelated events such as other terrorist attacks on the Veteran’s PTSD. The private examiner indicated that such events caused great exacerbation of the Veteran’s symptoms which had been continuously present since active duty service. The private examiner opined that the exacerbation of symptoms caused the Veteran clinically significant distress and impairment in social, occupational, and family functioning. VA treatment notes of record reflect consistent treatment and ongoing medication therapy for the effects of PTSD. Reoccurring symptoms included flashbacks, insomnia, nightmares, and other sleep disturbances including screaming episodes, anxiety, depression, irritability, and concentration and memory problems. At the Board hearing, the Veteran submitted a private medical opinion dated November 2018 that documented his hyper-vigilance, hyper startle, avoidance and isolating behaviors, as well as social anxiety and phobias. The private examiner’s written opinion indicated and the Veteran confirmed in his oral statements that he works very diligently at managing his PTSD symptoms and tries to avoid things which might trigger recollections of the traumatic events he endured. He lives in a secluded area, has minimal socialization, avoids crowds, shops on off hours, keeps a rigid schedule to avoid any unexpected situations, and does not watch any movies or play video games that have war scenes, terrorist plots or violence as examples. However, once he is triggered, the Veteran has difficulties with basic functioning due to recurrent distressing memories that he cannot stop. In light of the foregoing evidence, the Board finds that a rating of 70 percent is warranted for the entire period on appeal. The Board recognizes that the April 2014 VA examiner’s opinion regarding occupational and social impairment is more consistent with a 30 percent rating. However, considering this opinion in concert with the Veteran’s credible lay testimony at the November 2018 Board hearing, the VA treatment records, and the private medical opinions dated February 2015 and November 2018, the Board finds that the weight of the evidence preponderates a finding that the symptoms of the Veteran’s service-connected PTSD result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Significantly, the private medical opinions were submitted by the Veteran’s treating provider who has an established relationship with the Veteran and is familiar with his psychiatric symptoms. At the hearing, the Veteran explained he had a difficult time opening up to the April 2014 VA examiner, who was a person unknown to him, and that he tended to minimize his symptoms in front of others. Therefore, in affording the Veteran every benefit-of-the doubt, the Board finds that for the entire period on appeal, he is entitled to a disability rating of 70 percent for his service-connected PTSD. (Continued on the next page)   The Veteran requested a 70 percent rating for his service-connected PTSD in his May 2015 notice of disagreement and October 2015 VA Form 9, substantive appeal. He also confirmed at the November 2018 Board hearing that he was seeking a 70 percent rating, and no higher, for his service-connected PTSD. As this decision grants a 70 percent rating, it represents a full grant of the benefit sought on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (noting that while an appellant is presumed to be seeking the maximum benefit under the law, the appellant can choose to limit the appeal to a lesser benefit). Nevertheless, the Board also notes that neither the lay nor medical evidence of record discussed above shows that the Veteran has had total occupational and social impairment to warrant a 100 percent rating throughout the appeal period. Overall, he demonstrated a good relationship with his wife, sons and friends from service and remains self-employed, which belies the notion of total occupational and social impairment. See, e.g. VA treatment records dated through July 2015, VA examination dated April 2014 and Private Medical Opinions dated February 2015 and November 2018. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel