Citation Nr: 18155223 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-56 183 DATE: December 4, 2018 ORDER Entitlement to an increased disability rating of 30 percent, but no higher, for post-traumatic stress disorder (PTSD) is granted subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT The Veteran’s PTSD is manifested by symptoms of recurrent distressing dreams related to traumatic events, prolonged psychological distress, persistent avoidance of stimuli associated with the traumatic events, exaggerated negative beliefs about himself and those around him, irritable behavior and angry outbursts, periods of depressed mood, anxiety, suspiciousness, sleep impairment, and a difficulty maintaining effective relationships which more nearly approximates occasional decreases in work efficiency and intermittent periods of an inability to perform occupational tasks, with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating of 30 percent, but no higher, have been more nearly approximated for the Veteran’s service-connected PTSD. 38 U.S.C. § 1155; 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Navy from March 2003 to August 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In addition to the following issue, in September 2016, the attorney for the Veteran filed a notice of disagreement that included disagreement with the noncompensable rating for irritable bowel syndrome, asserting that a disability rating of 30 percent was warranted. Subsequently, an October 2016 Rating Decision granted the requested disability rating to 30 percent, effective February 19, 2016, noting that it was a full grant of the benefit requested. As such, that issue is not before the Board on appeal. Further, in the August 2016 notice of disagreement, received in September 2016, the Veteran’s attorney noted that a Total Disability for Individual Unemployability (TDIU) claim need not be filed when reasonably raised by the record, but made no specific assertions with respect to the Veteran. The record, however, includes no such indication that such a claim has been reasonably raised. To the contrary, an October 2016 VA psychiatric examination indicated that the Veteran continued to work at the railroad as a laborer and stated that work was going “good.” As such, entitlement to TDIU has not been raised by the record and will not be considered here. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Increased Rating The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded for the entire period on appeal, the claim is still in controversy and on appeal. Id. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Entitlement to an Increased Disability Rating for PTSD in excess of 10 percent. 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 adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. The Veteran’s PTSD is currently rated at 10 percent from February 2016 under Diagnostic Code 9411. 38 C.F.R. § 4.130. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms are controlled by continuous medication. A 30 percent rating is assigned for 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 (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for 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. Id. A 70 percent rating is assigned 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 circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Turning to the current case, the Veteran is requesting an increased rating in excess of 10 percent for his service-connected PTSD. Throughout the period on appeal, the Veteran has generally reported that his PTSD is worse than is currently rated, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence these assertions are not credible, and therefore they are entitled to probative weight. The Veteran underwent a VA examination in May 2016 in which PTSD was diagnosed based upon in-service stressors related to humanitarian activities during his service aboard USS Aberhan when he went shore to assist with earthquake and tsunami relief. The examiner’s assessment was that it resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; with symptoms controlled by medication. He was reported to be going through a divorce, but having an “awesome relationship” with his sons, and that his work was going good. The Veteran was provided with a second VA examination in October 2016. During the examination, the Veteran reported he and his wife are going through marriage counseling, yet that their relationship is improving. He spends time with his kids and some friends, and noted that he continued his work as a laborer at a railroad, and that his work was going good. The VA examiner specifically summarized the Veteran’s level of occupational and social impairment as that of having an “occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” These symptoms were well controlled by medication according to the VA treatment notes. The examiner noted that the Veteran denied any current thoughts of harming himself or others, yet that he had recurrent distressing dreams related to traumatic events, intense/prolonged psychological distress, persistent avoidance of stimuli associated with the traumatic events, persistent/exaggerated negative beliefs about himself and those around him, irritable behavior and angry outbursts, and sleep disturbances. The Veteran reported during the evaluation that he previously had suicidal ideation, yet those feelings have not been as prevalent recently. There is no evidence that the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. The findings of the examiners are in line with the competent and credible lay statements of record, all of which indicate that the Veteran suffers from depressed mood, anxiety, suspiciousness, and sleep impairment. The lay statements indicate that while the Veteran is feeling positive about the marriage counseling with his wife, there were significant relationship issues recently. Significantly, the May 2016 examiner indicated that there is a deterioration in the Veteran’s symptoms from his PTSD during times of stress. As such, based on the Veteran’s overall symptomatology and the resulting impairment occupational and social impairment stemming therefrom, and affording the Veteran the benefit of all reasonable doubt in our assessment, the Board finds that the evidence shows his disability picture more nearly approximates the level of severity contemplated by a 30 percent rating for PTSD. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411.Therefore, for the reasons stated above, the Board finds that an initial rating of 30 percent, but no higher, for the Veteran’s PTSD is warranted for the entire period on appeal. See Hart, 21 Vet. App. 505. Therefore, for the reasons stated above, the Board finds that an initial rating of 30 percent, but no higher, for the Veteran’s PTSD is warranted. See Hart, 21 Vet. App. 505. However, the preponderance of the evidence is against a finding that an increased rating in excess of 30 percent is warranted at any point during the period on appeal. Specifically, 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 has never been shown at any time during the period on appeal. Although the Veteran was reported to have previously had suicidal ideation, there is no evidence that those feelings were as prevalent at any time during the period on appeal. And in any event, such symptomatology does not in itself suggest that overall disability picture exhibited more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, as reflected in the 30 percent rating assigned herein. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the30 percent rating assigned herein for the Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel