Citation Nr: 18152685 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-35 643A DATE: November 23, 2018 ORDER Entitlement to an initial increased rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence of record indicates that the Veteran’s PTSD results in deficiencies in most areas, but does not result in total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 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 in the United States Army from January 2008 to March 2013. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran’s PTSD has been assigned an initial disability rating of 50 percent. The Veteran contends that a rating in excess of 50 percent is warranted. A disability rating is determined by the application of VA’s 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of examination. The rating agency 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. PTSD, Diagnostic Code 9411, is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. In relevant part, the rating criteria are as follows: A 50 percent rating is warranted where 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran was afforded a VA psychiatric examination in March 2014 in which she was diagnosed with PTSD and an unspecified alcohol-related disorder. The examiner stated that she was unable to distinguish which symptoms were attributable to each disorder due to overlapping symptoms. The Veteran reported that when she came back from Afghanistan she “came back a different person.” See March 2014 VA examination. The Veteran noted that she has had difficulty establishing relationships with people after she left the Army because she does not feel as if she has anything in common with people and that her thought process is a lot different now than before she enlisted. The Veteran reported that she has nightmares about four nights a week and that she experiences intrusive memories a couple of times a day. The examiner found that the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, as well as difficulty establishing and maintaining effective work and social relationships. The examiner opined that the Veteran’s symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupations tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In a December 2014 VA examination report, the Veteran was diagnosed with PTSD, alcohol use disorder, and attention deficit hyperactivity disorder (ADHD), and the examiner stated that he was unable to distinguish which symptoms were attributable to the various diagnoses. The Veteran reported that she feels depressed, worthless, and hopeless. She reported that she has been able to maintain limited friendships but these relationships often involved drinking so she is trying to make sober friends and acquaintances. The examiner noted that the Veteran had depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, and difficulty establishing and maintaining effective work and social relationships. The examiner reported that the Veteran is unable to adapt to stressful situations and circumstances. The examiner opined that the Veteran’s symptoms caused occupational and social impairment with reduced reliability and productivity. The Veteran’s medical records indicate that she has been hospitalized 32 times for intoxication and withdrawal from 2014 to present. In assessing the severity of the Veteran’s PTSD, the Board has considered the Veteran’s assertions regarding her symptoms, which she is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). The Veteran contends that she had several brief jobs in the restaurant business, but that she could not hold them due to her impaired control over her reactions. She states that she enrolled in a substance abuse program in 2015 after she realized she was using alcohol as a coping mechanism. The Veteran also reports that she feels a need to be constantly aware of her environment and have control over situations. She avoids large events such as football games and concerts and does her shopping during “off hours to avoid crowded stores.” See Veteran’s Correspondence dated June 21, 2018. On review of the record, the Board finds that the disability picture presented by the Veteran’s PTSD more accurately reflects a 70 percent disability rating, but no higher, for the entire appellate period. The Veteran’s symptoms include depressed mood, anxiety, impaired judgment, difficulty in adapting to stressful circumstances as well as difficulty establishing and maintaining effective work and social relationships. The Veteran has multiple psychiatric diagnoses, and both VA examiners have stated that the symptoms could not be differentiated. The Board notes it is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Veteran has not provided argument to support a higher 100 percent rating during any of the appeal period, and the Board finds that the preponderance of the evidence does not support a higher rating. The overall record does not show that at any time during the appellate period, the Veteran had gross impairment in thought processes or communication, persistent delusions or hallucinations, persistent danger of hurting self or others, or other symptoms reflective of a higher 100 percent rating. Considering the lay and medical evidence of record, the Board finds that there has not been total social and occupational impairment at any time during the appellate period. The Board has carefully considered the frequency, severity, and duration of the Veteran’s reported symptoms as well as the level of impairment contemplated by the various levels delineated in the rating schedule and finds that the disability picture presented by the Veteran’s PTSD results in a 70 percent disability rating, but no higher, for the entire appellate period. Accordingly, the Board concludes that the preponderance of the evidence indicates that the Veteran is entitled to a 70 percent disability rating for her PTSD. Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   The Board has considered whether TDIU is raised by the record. After careful consideration, the Board finds that it is not as the evidence reflects that the Veteran is seeking further education in anticipation of future employment. Moreover, although this decision considered all symptoms as part of the service-connected psychiatric disability based on lack of evidence that clearly separated out specific manifestations of the non-service connected alcohol dependency, the record does clearly refect the involvement of the alcohol dependency on her unemployability. Lastly, the Veteran has not indicated that her unemployability is solely due to the service-connected psychiatric disability. For all these reasons, the Board finds that entitlement to TDIU is not raised. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Robinson, Associate Counsel