Citation Nr: 18155525 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-42 004 DATE: December 4, 2018 ORDER A disability rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD) is granted. REMANDED The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim of entitlement to a compensable rating for migraine headaches is remanded. FINDING OF FACT For the entirety of the appeal period, the Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in areas such as work, thinking and mood due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks more than once per week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and suicidal ideation, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent disability rating, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2007 to December 2007 and again from March 2008 to December 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Specifically, the March 2016 rating decision, continued a noncompensable disability rating for migraine headaches and continued a 50 percent disability rating for PTSD. With regard to the TDIU issue, the Board notes that the Veteran has alleged an inability to retain employment due to her service-connected disabilities. Significantly, a review of the record shows that the Veteran has not worked since 2012 and, in December 2017 correspondence, the Veteran’s representative raised the issue of a TDIU due to her service-connected PTSD and migraine headaches. A claim for a TDIU is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board must thus consider the TDIU issue as part of the Veteran’s claims for increase.   1. PTSD By way of background, the Veteran was initially awarded service connection for adjustment disorder by way of a July 2011 rating decision. A 50 percent rating was assigned. A November 2012 rating decision noted that the Veteran had a changed diagnosis of PTSD that more accurately reflects her symptoms. She submitted a claim for an increased rating in October 2015 and, as above, a March 2016 rating decision continued a 50 percent disability rating for PTSD. The Veteran disagreed with this decision and perfected this appeal. Legal Criteria Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the applicable rating criteria for mental disorders, a 50 percent rating is warranted 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. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 inability to establish and maintain effective relationships. Id. The maximum rating of 100 percent is warranted 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether “the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code,” and, if so, the “equivalent rating will be assigned.” Id. A veteran may only qualify for a given initial or increased rating based on mental disorder by demonstrating the particular symptoms associated with that percentage in the rating criteria, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although a veteran’s symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for that rating. Id.; 38 C.F.R. § 4.130. Analysis Evidence relevant to the severity of the Veteran’s psychiatric disability includes a January 2016 VA psychiatric examination. At that time, the Veteran reported that she had been married to her husband for twelve years and that they had two young children together. She had not worked since 2012 and was attending college classes. Upon psychiatric examination, the examiner continued a diagnosis of PTSD and found that her psychiatric disability 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. Symptoms present and noted as associated with her PTSD included anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgment, difficulty in understanding complex commands, difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted the Veteran made two suicide gestures during service and was not currently taking any psychotropic medications. Also of record are VA treatment records dated through July 2016, a July 2017 private psychiatric examination report from Dr. H.H.G., May 2017 statements from G.P. (the Veteran’s mother-in-law) and J.C. (the Veteran’s friend), and a July 2017 residual functional capacity evaluation from Dr. L.A. 2016 VA treatment records show that the Veteran misses school due to anxiety; feels like she cannot function; cannot stay asleep due to racing thoughts and nightmares; feels she would be “better off dead:” feels worthless and hopeless; has diminished interest and is detached; has restricted range of affect; has a sense of foreshortened future; experiences irritability, difficulty concentrating, hypervigilance, exaggerated startled response, ongoing thoughts of suicide without intent or plan, flashbacks, social isolation, and increased negative cognitions of self and others; experiences extreme difficulty doing work, taking care of things at home, and getting along with other people; has little interest or pleasure in doing things; feels tired with little energy; has problems trusting other; experiences self-blaming/shame, negative alterations in cognitions and mood, and marked alterations in reactivity that cause significant impairment in social, occupational and other important areas of functioning. In the May 2017 statement from G.P., it was noted that the Veteran had no motivation to do anything, wanted to sleep all the time, preferred to sit in the corner and be left alone, was easily angered, did not interact or socialize anymore, and did not care about her appearance. In the May 2017 statement from J.P., it was noted that the Veteran suffered from memory loss, getting distracted and losing focus easily, inability to complete tasks, did not handle stress well, and got upset easily when anything stressful occurred. She did not interact with many people and preferred to stay to herself. The July 2017 private examination report from Dr. H.H.G. characterized the Veteran’s overall level of disability as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Symptoms present and noted as associated with her PTSD included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression, chronic sleep impairment, disturbance of motivation and mood, difficulty in adapting to stressful circumstances, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and suicidal ideation. Significantly, Dr. H.H.G. opined that the Veteran’s PTSD symptoms prevented her from maintaining substantially gainful employment. In the July 2017 residual functional capacity evaluation from Dr. L.A. it was noted that the Veteran struggled with depressed mood, hypervigilance, and disturbances or motivation and mood. Additionally, her difficulty maintaining effective relationships also indicated that she struggled with a severe impairment. Significantly, Dr. L.A. opined that the Veteran’s PTSD symptoms prevented her from maintaining substantially gainful employment. After a careful review of the objective medical evidence, the Board finds that the evidence supports a grant of a 70 percent disability evaluation for the Veteran’s PTSD. The evidence clearly shows the Veteran to be severely disabled as a result of her service-connected PTSD. Significantly, throughout the pendency of the appeal, the Veteran has been unemployed and, while she has been attending school, she has reported missing school often due to her psychiatric problems. She has also expressed continued suicidal thoughts, thus supporting a 70 percent disability rating. Furthermore, the July 2017 psychiatric examination report from Dr. H.H.G. shows that the Veteran’s psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, and family relations, judgment, thinking and/or mood. As for the potential of a disability rating higher than 70 percent, the Board finds that the evidence does not show the symptomatology required for a 100 percent rating. Significantly, the July 2017 psychiatric examination report from Dr. H.H.G. shows that the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas such as work school family relations judgment thinking and/or mood, which supports a 70 percent disability rating, and indicated that there was no evidence of total occupational and social impairment. Also, the Veteran has maintained a significant relationship with her husband and children during the appeal period. As required by Mauerhan, the Board has looked at all the factors and evidence identified above to determine whether the Veteran has met or more closely approximated the criteria for a maximum 100 percent rating. However, when considering the overall evaluation of the examples which may support the 100 percent rating, the frequency, duration and severity of symptoms, the Veteran’s capacity for adjustment, and the examiner’s assessments of the Veteran’s overall psychological, social and occupational functioning, the Board must conclude that the Veteran’s PTSD has not met or more closely approximated the criteria for a 100 percent rating at any relevant time. In this respect, the Veteran, even at her worst, can efficiently converse with the VA examiner/private physician, and can generally manage his daily activities on his own. She is not psychotic or out of touch with reality. Overall, her PTSD is not shown to manifest the type, extent and severity of symptoms demonstrating “total occupational and social impairment” within the meaning of the rating schedule at any point pertinent to this appeal. In so holding, the Board has generally found the statements of the Veteran to be truthful and credible evidence in support of this claim, which has been relied upon in awarding further compensation. However, even when taking into account these statements, the Board finds that the criteria for a rating greater than 70 percent have not been met. To the extent that the descriptions provided by the Veteran can be construed as supporting a higher rating still, the Board places greater probative weight to the clinical findings of the physicians who have greater expertise and training than the Veteran in evaluating the extent and severity of a psychiatric disability. There is no doubt of material fact to be resolved in her favor. 38 U.S.C. § 5107(b). As such, a disability rating of 70 percent, and no higher, is warranted.   REASONS FOR REMAND 2. TDIU With regard to the TDIU issue, as above, a review of the record shows that the Veteran has not worked since 2012 and, in December 2017 correspondence, the Veteran’s representative raised the issue of a TDIU.. The Board has taken jurisdiction of the TDIU issue pursuant to Rice. On remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU and be requested to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Furthermore, an opinion regarding whether the Veteran’s service-connected disabilities render her unemployable should be obtained. 3. Migraine headaches In a September 2017 private assessment from Dr. M.B., relevant outstanding private treatment records were identified. The examiner indicated that on multiple occassions the Veteran sought emergency room treatment due to her migraines. There is no indication of this in her current medical records. A remand is required to allow VA to obtain authorization and request these records. These matters are REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form. Then, schedule the Veteran for examinations by appropriate clinicians regarding the current severity of her PTSD and migraine headaches. The examiner should elicit from the Veteran her complete educational, vocational, and employment history and should note her complaints regarding the impact of PTSD and migraine headaches on employment. The examiner should identify all limitations or functional impairment caused solely by PTSD and migraine headaches. 2. Ask the Veteran to complete a VA Form 21-4142 for any emergency rooms she may have visited. Make two requests for the authorized records from each emergency room, unless it is clear after the first request that a second request would be futile. 3. Readjudicate the appeal. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel