Citation Nr: 18153515 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 17-22 132A DATE: November 28, 2018 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s PTSD has been productive of occupational and social impairment, with deficiencies in most areas throughout the period on appeal. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2004 to November 2008. This appeal arose to the Board of Veterans’ Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating higher than 30 percent for posttraumatic stress disorder (PTSD) [The Veteran contends that his PTSD warrants a rating higher than 30. For the forthcoming reasons, the Board agrees and finds that a uniform 70 percent rating is warranted. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran is in receipt of a 70 percent rating for PTSD, pursuant to 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 70 percent evaluation is warranted 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. Finally, a total schedular rating of 100 percent is warranted when the disorder 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated 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.” The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted. As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998). After reviewing all the evidence, the Board finds that the overall social and occupational impairment caused by the Veteran’s PTSD most nearly approximates impairment warranting a 70 percent rating throughout the period on appeal. In April 2016, the Veteran received an initial psychiatric assessment from a private examiner in which the examiner determined the Veteran suffered from major impairment in several areas of functioning such as work, house work, and relationships with friends and family. Symptomatically, the Veteran suffered from constant hyper-alertness, feelings of helplessness and hopelessness, irritability, angry outbursts, frustration, isolation, nightmares, insomnia, depression, anxiety, hyper-arousal, obsessive thoughts, and numbness. Socially, the Veteran was unable to tolerate crowds; he interacted with others only when they interacted with him, and enjoyed no close relationships with friends. The Veteran was no longer intimate with his wife, and his nine-year-old son “walked on eggshells” around the Veteran. Occupationally, the Veteran worked in construction contracting but frequently failed to finish his jobs or get along with his co-workers and supervisors. Cognitively, the Veteran suffered from short-term memory impairment, as well as difficulty completing multi-step tasks, and difficulties with focus and concentration. In May 2016, the Veteran received a C&P examination in which the examiner determined the Veteran suffered from occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. Symptomatically, the Veteran suffered from depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, suicidal ideation. Cognitively, the Veteran suffered from a depressed and anxious mood, with restricted affect. The Veteran did not suffer from psychosis or hallucinations. Socially, the Veteran did not maintain relationships with his siblings or parents and enjoyed no hobbies or leisure activities and was unable to be in crowds. Occupationally, the Veteran suffered at work, as he was unable to complete tasks due to lack of motivation and focus. Mentally, the Veteran suffered from suicidal thoughts, and he was only able to sleep three to four hours a night. In August 2016, the Veteran submitted a statement in which he argued that he was entitled to far above a 30 percent rating, as he suffered from major impairment in all areas of functioning. The Veteran argued that the assessment from his private practitioner should be afforded more weight than the examination from the VA practitioner, as his private practitioner saw him regularly for therapy and counseling and, therefore, was more familiar with the Veteran and his difficulties. In February 2018, notes from a visit with his private psychiatrist demonstrate that the Veteran was suffering at work, as he was unable to work with his co-workers. The Veteran stated that his depression was, on a scale of 1-10, at an eight or nine, and on the same scale, his anxiety was at an eight or ten. The psychiatrist determined the Veteran did not suffer from delusions or hallucinations. The Veteran reported problems with his memory and concentration, and he was alert and oriented to time and place. In April 2018, the Veteran submitted a statement declaring that he suffered from anxiety, and nerves; he found it difficult to go to work, and he was in constant fear of losing his job. The Veteran stated that he had no established social skills, and he frequently became angry for no reason. The Veteran stated that everything he has to do requires him to “interface with other humans and I simply cannot do this anymore and maintain an even-keeled attitude”. The Veteran stated that he suffered from nightmares and chronic insomnia. In the aggregate, the evidence demonstrates that the Veteran suffers from occupational and social impairment, with deficiencies in most areas throughout the period on appeal. The Veteran does not, however suffer from nor more nearly approximate any of the symptoms necessary for a total, 100 percent schedular rating such as severe memory loss; gross impairment in thought process or communication; inability to maintain and establish effective relationships; obsessional rituals which interfere with routine activities; persistent delusions or hallucinations; grossly inappropriate behavior; and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. In short, total occupational and social impairment due to PTSD has not been demonstrated. Accordingly, when resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 70 percent schedular rating, but no higher, is warranted for the Veteran’s PTSD, for the entire appeal period.] REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. The Board notes that the Veteran has stated multiple times his PTSD renders him unable to work, and he has applied for vocational rehabilitation. Accordingly, a claim for TDIU has been raised. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Upon remand, the RO is directed to adjudicate the Veteran’s claim. The matter is REMANDED for the following action: (Continued on the next page)   1. Send the appropriate TDIU paperwork to the Veteran and adjudicate his claim. 2. Associate any VA vocational rehabilitation records with the claims file. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs