Citation Nr: 18155191 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-51 718 DATE: December 3, 2018 ORDER Entitlement to a 70 percent disability rating for posttraumatic stress disorder (PTSD) for the entire appeal period is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s PTSD most closely approximated occupational and social impairment with difficulties in most areas, such as work, family relations, and mood, due to symptoms such as disturbance of mood and motivation, irritability, anxiety, sleep impairment, and depression; total occupational and social impairment was not shown. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no higher, for PTSD are met for the entire rating period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the U.S. Army from August 1996 to December 1996, January 2000 to May 2000, January 2003 to May 2004, and December 2009 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In pertinent part, the September 2014 rating decision granted the Veteran’s claim of entitlement to service connection for PTSD, and assigned a noncompensable disability evaluation, effective April 2, 2013. An August 2016 rating decision granted an increased, 30 percent disability evaluation for the initial rating period, and a 50 percent disability evaluation, effective August 1, 2016. Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. This letter explained the evidence necessary to substantiate the Veteran’s initial claim of entitlement to service connection, as well as informed him of his and VA’s respective duties for obtaining evidence; the claim for an increased disability evaluation is downstream from the grant of service connection. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of his claim. The Veteran was afforded VA examinations responsive to the PTSD claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The examination reports contain all the findings needed to assess entitlement to service connection or rate the Veteran’s service-connected disability on appeal, including history and clinical evaluation. See 38 C.F.R. § 3.327(a) (2018); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Disability Evaluation Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the service-connected disability on appeal have not materially changed and a uniform evaluation is warranted for the rating period on appeal. The Veteran’s PTSD is evaluated as 30 percent disabling for the initial rating period, prior to August 1, 2016, and 50 percent disabling for the rating period from August 1, 2016 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent disability rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent disability rating requires 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-term 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. For the next higher 70 percent evaluation to be warranted, there must be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive 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); and an inability to establish and maintain effective relationships. Id. A 100 percent rating is provided 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. 38 C.F.R. §§ 4.125-4.130. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 117–18. After a review of all the evidence, the Board finds that the Veteran’s service-connected PTSD more nearly approximates the criteria for a 70 percent disability evaluation for the entire rating period on appeal (since April 2, 2013). The Board finds that the Veteran’s psychiatric symptoms have been relatively consistent, and that the 70 percent evaluation takes into account the Veteran’s level of social and occupational impairment. Throughout the rating period on appeal, the Veteran’s PTSD with has been characterized by occupational and social impairment with deficiencies in most areas, including work, thinking, and mood due to symptoms such as mild memory loss, depression, anxiety, irritability, and sleep impairment, as demonstrated by the findings at the August 2016 and April 2018 VA examinations, as well as his VA treatment records and statements from the Veteran’s wife and friends. The Veteran has complained of sleep impairment, irritability, hypervigilance, hyperstartle response, anxiety, and depression at his VA examinations and in seeking treatment at VA. He also reported experiencing impaired memory, judgment, and thinking, as well as passive suicidal ideation, loss of motivation, and difficulty concentrating. A 70 percent disability evaluation accounts for the Veteran’s social and occupational impairment as caused by these symptoms. The evidence does not show that the Veteran experienced total occupational and social impairment due to his symptoms at any time during the rating period on appeal. Initially the Board notes that he did not demonstrate manifestations such as grossly impaired thought processes, persistent delusions and hallucinations, persistent danger of hurting himself or others, or intermittent inability to perform activities of daily living, as contemplated in the listed criteria for a 100 percent disability rating under Diagnostic Codes 9411-9433. In fact, the VA examination report and treatment records indicate that the Veteran is able to communicate effectively and that he is alert and oriented, with appropriate speech; he also had good hygiene and insight. While the Board recognizes the Veteran’s significant occupational and social impairment, it is not total. His symptoms do not equate in frequency, duration or severity with total occupational or social impairment. The examiner noted that his overall symptoms were moderately severe, and with regard to social impairment, the Veteran does not lack social relationships; he is married and has friendships. For these reasons, the Board finds that the evidence supports a finding of a 70 percent evaluation, but no higher, for the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to TDIU is remanded. As a preliminary matter, a claim for increased evaluation includes a claim for a TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board notes that the Veteran has not yet filed a claim of entitlement to TDIU, but notes that the Veteran has alleged that he is unable to work due to his service-connected disabilities. On remand, the TDIU claim must be developed and adjudicated. Regarding the claim for TDIU, the ultimate responsibility for a TDIU determination is a factual one rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this case, the record is not sufficient for the Board to make such a determination, and an examination is needed to allow the Board to make a fully informed decision in this case. The matter is REMANDED for the following action: 1. Send the Veteran a notice letter which advises him of the criteria needed to substantiate a claim for a TDIU. In addition, conduct any additional necessary development for the Veteran’s claim of entitlement to a TDIU. 2. The Veteran should be provided with a VA examination in order to obtain an opinion as to the impact of his service-connected disabilities on his ability to perform physical and mental tasks in a work-like setting, without regard to the Veteran’s age or the impact of any nonservice-connected disabilities. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel