Citation Nr: 18152368 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-51 312 DATE: November 21, 2018 ORDER Entitlement to initial rating in excess of 70 percent disabling for Post-Traumatic Stress Disorder (PTSD) is denied. FINDING OF FACT The probative evidence of record is against a finding that the Veteran’s PTSD symptoms manifest in total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. 1155, 5103, 5103A, 5107; 38 C.F.R. 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2010 to December 2013. Entitlement to initial rating in excess of 70 percent disabling for PTSD Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s service-connected PTSD is rated as 70 percent disabling at all times from July 27, 2015, under VA’s General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the formula, a 70 percent evaluation 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 ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board notes that the Veteran need not exhibit “all, most, or even some” of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Id. Effective March 19, 2015, VA adopted as final, without change, an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders. The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-5. Specifically, the rulemaking amended 38 C.F.R. 3.384, 4.125, 4.126, 4.127, and 4.130. However, the provisions of this final rule do not apply to claims that were certified to the Board on or before August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. As this appeal was certified to the Board in June 2018, the current versions of the regulations including references to DSM-5 apply. In VA medical treatment records from July 2015 to November 2015, the Veteran was diagnosed with PTSD. The Veteran discussed that her sources of anxiety were in finding adequate childcare, attending and performing well in college, and her husband’s deployment. The Veteran described a strained relationship with her husband, noting frequent arguments, but also highlighted that they are working together on her mental health and stated that she will talk to her husband and attempt to find a way to resolve their issues with her family. The Veteran described a difficult relationship with her family, in particular her sister and parents. The Veteran also described difficulty making friends and feeling alone. The Veteran was afforded a VA examination in November 2015. The examiner determined that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. Her symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; and difficulty in establishing and maintaining work and social relationships. The Veteran was neatly and casually dressed and cooperative with the evaluation process. Her mood was anxious, and affect was congruent with mood. Her speech was clear and of normal volume and flow. The Veteran’s thought process was clear, logical and goal directed. The Veteran was oriented times four, with intact reality testing. The Veteran also noted that she has a good relationship with her family. Furthermore, the Veteran described her relationship with her husband as “ok” but says it is damaged by her anger issues. She stated that she does not talk to her neighbors, and has one friend in the community, whom she met at the gym. In VA medical treatment records from June 2016, the Veteran describes a difficult relationship with her husband, describing constant arguments and a lack of intimacy. However, the Veteran also stated that she will talk to her husband regarding marriage issues. The Veteran noted a difficult relationship with her in-laws regarding caring for her daughter. The Veteran also addressed concerns about falling behind in college classes. The Veteran was afforded another VA examination in October 2016. The Veteran reported symptoms of depressed mood, low energy and motivation, fatigue, decreased feelings of hope and worth, decreased appetite, isolation, less interest in activities, and problems with irritability, concentration, and sleep. It was also reported that the Veteran had an alcohol use disorder with depression related to PTSD. The Veteran reported that she has been married for three years and describes her relationship with her husband as poor. The Veteran reported that she has one close friend that lives out of state, but that they talk once every three weeks. The Veteran also noted that she has a casual friend that she sees twice per week at school. The Veteran reported that she is working on obtaining a bachelor’s degree in nursing with a current GPA of 3.0. The Veteran reported problems with concentration. The Veteran’s mood was anxious, and her affect was mood congruent; her thought process was logical and coherent, and her speech reflected her anxiety. There was evidence of psychomotor agitation, however it was noted that she was pleasant and cooperative with the examiner. The Veteran was casually dressed with adequate attention to grooming. There was no evidence of auditory or visual hallucinations and the Veteran denied current suicidal or homicidal ideation. In an April 2017 VA PTSD disability benefits questionnaire (DBQ), the examiner determined that the Veteran’s psychiatric symptoms caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that she is married with a young daughter and lives with her husband. The Veteran stated that she is not working, but is attending college full time. The Veteran expressed that she feels depressed daily, has anxiety daily, and has daily panic attacks. The Veteran reported intermittent suicidal ideation, although the examiner noted that the Veteran was not suicidal at the time. The Veteran was alert, oriented, and cooperative. Her mood was depressed and anxious and her affect was consistent with her mood. The Veteran’s thoughts were organized and there was no evidence of psychosis. In an April 2018 rating decision, the RO increased the rating for PTSD to 70 percent disabling, effective the date of her claim, July 27, 2015. As noted above, to warrant the assignment of a higher 100 percent rating, the Veteran’s PTSD must manifest in symptoms causing total occupational and social impairment. While the Veteran’s PTSD does cause severe impairment, the evidence of record is against a finding that her PTSD causes total impairment. Indeed, although the Veteran reported a poor relationship with her husband, a relationship with her husband does exit, and the record demonstrates she and her husband continue to work on marriage issues. The Veteran reported that she has maintained a relationship with a close friend out-of-state that she speaks with every three weeks. She also raises a small child. Although the Veteran has not been employed since leaving service, she has attended college full time, and has maintained passing grades, despite concentration and focus issues. There is also no evidence in the record showing that her service-connected psychiatric disorder has manifested in those symptoms typically associated with total social and occupational impairment, such as gross impairment in thought processes or communication; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. Specifically, the Veteran’s VA treatment records, as well as her VA examination reports, consistently note that the Veteran has been oriented to person, time, and place, casually and appropriately dressed, with intact thought processes. She has been described as cooperative, and has denied delusions or hallucinations. While she has described having intermittent suicidal thoughts, the evidence does not indicate that she is a persistent danger to herself or others. Although the Veteran has difficulty with establishing and maintaining relationships, suffers daily anxiety, at times has suicidal thoughts, and has problems with concentration and focus, the weight of the evidence shows that her PTSD does not cause total social impairment and social impairment, warranting an increased rating to 100 percent. She is able to keep relationships with family members—albeit strained—and has demonstrated the competency to take and pass college level courses in pursuit of her degree. Her PTSD symptoms cause occupational and social impairment in most areas, as contemplated by the 70 percent rating currently assigned. For these reasons, the benefit sought on appeal is denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel