Citation Nr: 18157792 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-63 263 DATE: December 13, 2018 ORDER Entitlement to an increased rating of 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT The symptoms and overall impairment caused by the Veteran’s PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, but they have not more nearly approximated total social and occupational impairment. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an increased rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2003 to January 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had previously been granted service connection for anxiety disorder and assigned an initial 50 percent rating. In the September 2015 decision, the RO granted service connection for PTSD, recharacterized the disability as PTSD (previously rated as an anxiety disorder, not otherwise specified with panic attacks), and continued the 50 percent rating. Duty to Assist In December 2016, the Veteran’s attorney contended that the September 2015 VA examination was inadequate, namely, because the July 2015 Review PTSD Disability Benefits Questionnaire (DBQ) was not considered in the September 2015 VA examiner’s findings. See Veteran’s attorney statement dated December 2016.. For the reasons indicated in more detail below, the September 2015 examination is adequate, as it was based on a thorough examination of the Veteran and provide sufficient detail to properly rate the Veteran’s disability under the pertinent rating criteria. 38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Accordingly, no further action is necessary in this regard. Stegall, 11 Vet. App. At 268. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Entitlement to an increased rating in excess of 50 percent for PTSD. The Veteran’s PTSD is rated 50 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under this criteria, a 50 percent rating is assigned when there is 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 establishing effective work and social relationships. A 70 percent rating is assigned when there is 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. A 100 percent rating is assigned when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. 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 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 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. In July 2015, the Veteran submitted an increased rating claim for PTSD. In a November 2014 VA examination, the Veteran reported that he was married in 2003 and that he and his ex-spouse divorced in 2012. He has one daughter from that marriage. He stated that he has been in a relationship with his current girlfriend for 3 years. He lives with his current girlfriends, her two children, and the Veteran’s daughter. The Veteran reported that he gets along “great” with his child and his girlfriend’s children. He indicated that he keeps in contact with his family and friends from high school and the military. He stated that he has an associate’s degree in applied electrical technology In a July 2015 Review PTSD DBQ, the private examiner diagnosed PTSD and depression and indicated that the Veteran’s depression was related to his PTSD. The Veteran reported that he is isolated from others, aggressive, anxious, and suspiciousness. Moreover, he stated that he exhibits suicidal ideation, chronic sleep impairment, memory loss, has difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, and is unable to establish and maintain effective relationships. He stated that he is currently divorced. The examiner opined that the Veteran’s PTSD causes total occupational and social impairment. In September 2015, the Veteran was afforded a VA examination; the VA examiner noted that the Veteran’s social and family history (other than the Veteran’s reports that he and his girlfriend fight frequently) has not changed since the November 2014 examination. The Veteran reported that he experiences depressed mood, anxiety, and panic attacks. He stated that he has difficulty feeling close to others and that he is alienated from his friends, which impacts his ability to have romantic relationships. He stated that he has a new job. During the course of his new and previous employments, he reports that he experiences difficulties with concentration and problems with his boss. The examiner noted that the Veteran experiences increased physical arousal when exposed to loud noises at work. Additionally, the examiner indicated that the Veteran exhibits exaggerated startle response during the course of his employment. For instance, if someone drops something, the Veteran’ s heart races and it takes a long time for him to calm down. The examiner found that the Veteran’s PTSD causes occupational and social impairment with 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. In the Veteran’s November 2015 notice of disagreement (NOD), he reported that he has difficulties completing tasks and concentrating and avoids others due to his PTSD. He stated that he has had 3 jobs in the past year due to his inability to adapt. In an August 2017 DBQ, a private psychologist, interviewed the Veteran and indicated that the Veteran’s psychiatric symptoms included social withdrawal, relationship problems, recurrent thoughts of death, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The private psychologist found that the Veteran’s PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school, family relation, judgment, thinking and/ or mood. For the following reasons, entitlement to an increased rating of 70 percent, but no higher, for PTSD is warranted. At the outset, the July 2015 VA examiner diagnosed depression and indicated that it was associated with the Veteran’s PTSD. There is no evidence that differentiates between symptomatology associated with the Veteran’s PTSD and the nonservice-connected depression. To this end, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet App. 181 (1998). Accordingly, the Board will attribute all of the Veteran’s psychiatric symptoms to the PTSD for the purposes of assessing the severity of that disability. The Veteran’s symptoms and overall impairment caused by his PTSD more nearly approximated occupational and social impairment with deficiencies in most areas. For instance, the evidence reflects that the Veteran has difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and experiences suicidal ideation due to his PTSD. Also, the evidence shows, as to social impairment, that the Veteran reported that he is isolated from others, avoids others, has difficulty feeling close to others, and that he is alienated from his friends. He indicated that he is divorced. He frequently fights with his girlfriend. With respect to occupational impairment, he reports that he has had 3 jobs in the past year. He stated that during the course of his new and previous employments, he experiences difficulties with concentration and problems with his boss. The September 2015 VA examiner indicated that the Veteran experiences exaggerated startle response and increased physical arousal when exposed to stimuli in the workplace due to his service-connected PTSD. As such, the Veteran has exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected PTSD. He has symptoms listed in the criteria for a 70 percent rating, including suicidal ideation, as well as deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (the language of the general rating formula indicates that the presence of suicidal ideation alone, that is, a Veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). The evidence is thus at least evenly balanced as to whether the symptoms and impairment caused by the Veteran’s PTSD more nearly approximated occupational and social impairment with deficiencies in most areas. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an increased 70 percent rating is warranted for the entire claim period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3 Entitlement to an initial rating higher than 70 percent for a PTSD is not warranted because the Veteran’s symptoms and overall impairment caused by the PTSD have not more nearly approximated the criteria for the next higher rating of 100 percent, total occupational and social impairment. For instance, although the Veteran indicated that he has difficulty with relationships and that he avoids others, he continues to maintain a relationship with his girlfriend. During the November 2014 VA examination, the Veteran reported that he gets along “great” with his child and his girlfriend’s children. He indicated that he keeps in contact with his family and friends from high school and the military. Although the Veteran’s reports noted above from the November 2014 VA examination are prior to the appeal period, the September 2015 VA examiner noted that the Veteran’s social and family history (other than the Veteran’s reports that he and his girlfriend fight frequently) has not changed since the November 2014 examination. As to occupational impairment, although he stated that he has 3 jobs in the past year, the Veteran maintains employment. In addition, the above evidence reflects that there was no gross impairment in thought processes, delusions or hallucinations, grossly inappropriate behavior, that the Veteran was a persistent danger to hurt himself, or that he was unable to perform activities of daily living. He was oriented on all examinations and did not have memory loss. He was not found to be persistent danger to hurt others. As the preponderance of the evidence is against a rating higher than 70 percent, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran’s increased rating claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Additionally, a request for an entitlement to a total disability rating based on individual unemployability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In this case, the Veteran has not contended and the evidence does not show that he is unable to secure or follow substantially gainful employment due to his service-connected PTSD. Therefore, the issue of entitlement to a TDIU, has not been argued by the Veteran or reasonably raised by the evidence of record. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel