Citation Nr: 18154278 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-48 391 DATE: November 29, 2018 ORDER Entitlement to an increased 100 percent for posttraumatic stress disorder (PTSD) effective from January 21, 2014, is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT The evidence demonstrates that the Veteran’s service-connected PTSD causes total occupational and social impairment including as due to disorientation to time or place. CONCLUSION OF LAW The criteria for an initial 100 percent disability rating for PTSD effective from January 21, 2014, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from April 1967 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran withdrew his request for a Board hearing in November 2016. The Board finds that the Veteran’s submission of additional evidence and his requests for reconsideration of VA rating decisions are more appropriately construed as a notice of disagreement with the March 2014 rating decision which established service connection for PTSD and assigned a 70 percent rating effective from January 21, 2014. See Palmer v. Nicholson, 21 Vet. App. 434, 437 (2017). 1. Entitlement to an initial rating in excess of 70 percent for PTSD. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2018). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). When rating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (2018). During the course of this appeal, the rating criteria were revised to update references pertinent to the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders (5th ed.) (DSM-5). Those changes included removal of the multi-axis system, Global Assessment of Functioning (GAF) score method of assessment. No additional substantive revisions have been made to VA’s General Rating Formula for Mental Disorders. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). Diagnostic Code 9411 governs ratings for PTSD. A 70 percent evaluation is assigned when PTSD 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 worklike setting); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when PTSD 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the term ‘such as’ in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase ‘such symptoms as,’ followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (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.” It was also 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2018). The Veteran contends that his PTSD is more severe than the presently assigned 70 percent rating. He reported that he had been self-employed as co-owner with his brother of a barber school, but that he had been unable to work more than a few hours each week. His application to reopen his service connection claim for PTSD was received by VA on January 21, 2014. VA examination in March 2014 included a diagnosis of PTSD. The symptoms of PTSD were anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. An April 2014 private medical report found the Veteran had a total social and occupational impairment due to his PTSD. It was noted that he continued to work part-time, but that he was not really relaxed or comfortable anywhere. He had a hard time staying focused and got confused easily. He became disoriented easily and had gotten lost on his way to the interview, despite having been there several times before. He had problems with names and had for some time. A May 2015 private treatment report noted the Veteran was self-employed with his brother, but that in all probability he did not have the ability to manage or administer work and would not be able to find or maintain employment. It was noted his memory had diminished to names, events, and even getting lost driving to places he had been before. VA examination in July 2015 included a diagnosis of PTSD and found the disorder was best described as an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The symptoms of PTSD were depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. A July 2016 private examination found PTSD was manifested by symptoms including depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, impairment of short- and long-term memory, difficulty understanding complex commands, disturbance of motivation and mood, obsessional rituals which interfere with routine activities, spatial disorientation, and disorientation to time or place. The examiner noted that the Veteran had recently had an incident when his airplane had to turn around and let him off due to a panic attack. It was noted he was often frustrated because of a loss of ability to remember names, even of those he knew well and that he frequently lost his way to places where he was going. His ability to establish or maintain relationships was limited and he continued to experience angry outbursts even when he thinks he has control. He became “turned around” easily and got disoriented to time, place, and space. Based upon the evidence of record, the Board finds the Veteran’s service-connected PTSD causes total occupational and social impairment including as due to disorientation to time or place. The Veteran’s reports as to the problems he has experienced as a result of his PTSD are found to be credible and supported by additional evidence, including statements from fellow servicemen. The overall evidence is persuasive that the impairment has existed since the date of the receipt of his claim to reopen on January 21, 2014. The findings of the April 2014 treatment care provider are consistent with the July 2016 private examination and are not contradicted by the July 2015 VA examination findings. Therefore, the Board finds that an increased 100 percent service-connected disability rating effective from the date of receipt of his application to reopen the claim for PTSD is warranted effective January 21, 2014. The appeal is granted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel