Citation Nr: 18153121 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-44 951 DATE: November 27, 2018 ORDER An initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDING OF FACT During the period on appeal, it has not been shown that the Veteran’s PTSD has caused total social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from November 1966 to September 1968 and from June 1969 to January 1972. His decorations include a Bronze Star Medal, a Purple Heart Medal, an Army Commendation Medal, and a Combat Infantry Badge. The Board notes that, under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. The record indicates that the Veteran receives Social Security Administration disability payments due to conditions including PTSD, and records of the Veteran’s SSA disability claim and related treatment are not associated with the file. As detailed below, the Veteran’s claim for an increased rating for PTSD is being denied mainly due to the evidence not reflecting that the Veteran has experienced total social impairment during the appeal period. Thus, the Board concludes that the record does not establish a reasonable possibility that the federal SSA records could provide evidence necessary to substantiate his claim. Being that the Veteran has indicated he was awarded SSA benefits in a 2003 decision, it is unlikely that the records associated with a 2003 disability determination would include evidence regarding his social impairment from the date the Veteran filed his claim with VA in January 2015. Moreover, as documented below, the evidence of record documents sufficient social contacts to find that the Veteran is not totally socially impaired, and given these known contacts, the SSA records would not make these contacts disappear. As such, VA does not need to attempt to obtain those records prior to adjudicating his claim for a rating in excess of 70 percent for PTSD. 1. Entitlement to an initial rating in excess of 70 percent for PTSD The Veteran was granted service connection for PTSD in an April 2015 rating decision. The RO assigned an initial 70 percent rating, effective January 28, 2015, the day the Veteran’s claim for service connection was received. The Veteran disagrees with the assigned initial rating and asserts he is entitled to a higher rating for his PTSD. The Veteran’s service-connected PTSD is currently rated under Diagnostic Code 9411. Psychiatric disorders, however diagnosed, are rated under the General Rating Formula for Mental Disorders, and the criteria under this formula shall be considered no matter which diagnostic code is assigned. Under the General Rating Formula for Mental Disorders, a 70 percent evaluation is assigned when a psychiatric disability causes 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a psychiatric disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. Regardless of the Vazquez-Claudio decision, § 4.130 is unambiguous that the symptomatology for a 100 percent PTSD rating must amount to total occupational and total social impairment. Inclusion of the word “total” distinguishes the 100 percent rating requirements from all of the lesser rating requirements under § 4.130 and requires such a significantly disabling condition that no social relationships could exist. As such, absent a showing of a total, complete social impairment, a rating of 100 percent for PTSD is not warranted; even a severe social impairment would not suffice. Here, the record does not reflect that the Veteran has experienced total social impairment at any time during the appeal period. The Veteran was afforded a VA PTSD examination in April 2015 at which he reported experiencing intrusive memories of his deployment; feelings of guilt and remorse; emotional disconnection; hypervigilance; engagement in risky activities; anxiety; panic attacks when confronted with conversations/activities reminding him of his deployment; difficulty trusting others; and chronic sleep impairment due to intermittent waking and combat-related nightmares two to three times per week. He denied having any suicidal or homicidal ideations. The examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran also reported having 10 or 11 siblings, with whom he was not close. He had been married for 35 years and had a 24-year-old daughter. The Veteran stated that he loved his wife and daughter, but they often complained that he was always mad and verbally aggressive. He also remarked that he wished he could go back to the jungle [of Vietnam] to be alone. He denied having significant friendships outside his family and stated that people would pass by in his life, but he would not feel emotionally connected to them. He also reported spending his retirement isolating in his home and only leaving for medical appointments. As to his employment history, the Veteran reported that he had been forced into early retirement after 19 years of service in the 1990s due to excessive absenteeism, low productivity, depressed mood, and anger problems. The Board notes that the Veteran is documented as reporting elsewhere in the claims file, both in VA medical treatment notes and in an application for a TDIU, that this employment actually ended in the early 2000s. Regardless, the Veteran stated he had not worked since leaving that position. The examiner concluded that the Veteran’s current PTSD symptoms would negatively impact his ability to find and maintain gainful employment, but they would not preclude employment. The examiner noted in his observations that the Veteran was early to the examination, was fully alert and oriented, kept good eye contact, and provided multiple details regarding his active service deployment. The examiner closed his report by noting that the Veteran’s symptoms were severe, but would not preclude employment all together. The Veteran’s VA treatment records did not reveal social impairment beyond what was exhibited at the VA examination. Specifically, they showed that he was often accompanied by either his wife or his daughter to his medical appointments. He also reported having a good relationship with his wife and daughter in a March 9, 2015 VA treatment note. The Veteran has clearly experienced psychiatric symptomatology as a result of his PTSD. However, a 100 percent rating requires, in addition to total occupational impairment, total social impairment. Here, the Veteran has consistently displayed some level of social functioning, as evidenced by his self-reported “good” relationships with his spouse and daughter. Having always displayed some evidence of social competence, the Veteran does not now, nor at any time during the appeal period, have total, meaning complete, social impairment. Of note, the 70 percent rating that the Veteran is currently assigned contemplates an inability to establish and maintain effective relationships, which is a more appropriate description of the Veteran’s social impairment than the term total social impairment. Moreover, the Veteran also has not exhibited any of the other symptoms identified in the schedular criteria for a 100 percent rating for PTSD, such 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 minimum personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. To the contrary, he appeared alert and oriented, as well as appropriately dressed and groomed, at his April 2015 VA examination and VA medical treatment visits, and consistently denied suicidal or homicidal ideations. He never reported hallucinations or delusions and was never noted as displaying grossly inappropriate behavior. Further, the April 2015 VA examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, as is the criteria for the 70 percent rating for which the Veteran is currently assigned. Thus, the Board has not uncovered any evidence of psychiatric symptoms which could remotely fall into the rating criteria for a 100 percent rating under the General Rating Formula for Mental Disorders. Accordingly, a rating in excess of 70 percent for the Veteran’s PTSD is denied. REASONS FOR REMAND The Board notes that the issue of entitlement to a TDIU is part of a rating issue when such issue is raised by the record during the rating period. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has indicated that his PTSD symptoms have rendered him unable to work, and he submitted an application for a TDIU in that regard in September 2018. The record shows the Veteran is currently unemployed, and has been for many years. The Board notes that the evidence has reasonably raised the issue of entitlement to a TDIU in conjunction with the increased rating issue decided herein; therefore, a remand is necessary for the Agency of Original Jurisdiction (AOJ) to adjudicate entitlement to a TDIU in the first instance. Further, in conducting the development needed to decide the Veteran’s TDIU claim, the RO should specifically ensure it obtains the Veteran’s records from SSA, as they may contain information about his unemployability, which could help substantiate the claim. The matter is REMANDED for the following action: 1. Conduct all appropriate development needed to adjudicate the issue of entitlement to a TDIU, to include obtaining from SSA a copy of its decision(s) awarding the Veteran disability benefits and all medical records upon which it relied in rendering its decision(s), and to include obtaining updated VA treatment records from June 2016 through the present. 2. Adjudicate the issue of entitlement to a TDIU. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel