Citation Nr: 1823482	
Decision Date: 04/20/18    Archive Date: 04/26/18

DOCKET NO.  14-33 439	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to June 30, 2013.

2.  Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Joseph Moore, Attorney at Law


ATTORNEY FOR THE BOARD

David Nelson, Counsel



INTRODUCTION

The Veteran had active service from March 1979 to March 1983.

This case comes before the Board of Veterans' Appeals (BVA or Board) from a decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The claim of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

From January 15, 2008 through June 29, 2013, the Veteran's PTSD was manifested by symptoms productive of occupational and social impairment with deficiencies in most areas.


CONCLUSION OF LAW

The criteria for a rating of 70 percent for PTSD from January 15, 2008 through June 29, 2013, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Neither the Veteran nor her representative has raised any 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 a duty to assist argument).

Laws and regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017).  The 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 ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2017). 

Where entitlement to compensation has 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, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).

Diagnostic Code 9411 addresses PTSD.  Under that code, a 50 percent rating for PTSD is appropriate 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 in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411.

A 70 percent rating for PTSD is provided 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 worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating for PTSD 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.

That portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities was based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) IV prior to a change effective August 4, 2014.  38 C.F.R. § 4.130 (2015).  The regulation has been changed to reflect the current DSM, the DSM V.

Analysis

A February 2011 rating decision granted the Veteran service connection for PTSD and assigned a 50 percent rating, effective January 15, 2008.  The Veteran's PTSD is currently rated 100 percent disabling, effective June 30, 2013.

The evidence for the time period on appeal includes VA treatment records and reports, letters from the Veteran's healthcare providers, letters from friends, and a November 2010 VA examination.

After reviewing the pertinent evidence of record, the Board finds that the evidence warrants a rating of 70 percent for PTSD.  Records such as the April 4, 2011 VA treatment record noted increased irritability and being "triggered" by events, which the Board finds is essentially an indication of impaired impulse control.  An increasing withdrawal from socialization and increased isolation was noted by the November 2010 VA examiner, signaling a difficulty in adapting to stressful circumstances and an emerging inability to maintain effective relationships.  While no formal cognitive disorder has been found, the November 2010 VA examiner did indicate that the Veteran's thought processes sometimes needed "goal redirection," and the Veteran's cognitive functions were characterized as moderately impaired in the areas of concentration and attention.  Based on the foregoing, and while acknowledging that not all the symptoms listed for a 70 percent rating have been met, the Board finds that a rating of 70 percent for PTSD is warranted from January 15, 2008 through June 29, 2013.

In finding that the Veteran is entitled to a rating of 70 percent for her PTSD, the question now becomes whether the Veteran is entitled to a rating in excess of 70 percent for her service-connected PTSD from January 15, 2008 through June 29, 2013.

The Board observes that the evidence does not indicate that the Veteran has symptoms due to PTSD such as gross impairment in thought processes or communication.  No formal speech or cognitive disorder related to PTSD has been suggested by any of the examiners.  While some concertation and attention problems have been noted, the November 2010 VA examiner characterized the Veteran's concentration and attention as just moderately impaired.  Nothing approaching persistent delusions or hallucinations is of record.  Acts of violence to others have not been noted, and there has been nothing resembling a pattern of grossly inappropriate behavior.  While an April 2011 VA treatment record indicated suicidal ideation, the Veteran denied any active plan but only noted ruminative thoughts concerning stopping her HIV medications.  In this regard, there was no findings indicating a persistent danger of hurting self or others.  Further, disorientation to time or place, or just minimal hygiene, has not been shown.

While the Veteran has been described as being increasingly isolated, a review of the treatment records note some form of involvement or interaction with her son (April 2011), her sister (March 3, 2011), her mother (March 3, 2011), and granddaughter (August 28, 2009).  Letters from friends (LB and JT, April 4, 2008) have also been associated with the claims file.  As such, even assuming severe occupational impairment (as noted in the March 6, 2008 letter from TK and AS), and even acknowledging that the Veteran's social relationships are poor, total social impairment has not been demonstrated.  Based on the foregoing, a rating in excess of 70 percent for PTSD from January 15, 2008 through June 29, 2013 is not warranted.

Conclusion to PTSD claim

In sum, an initial rating of 70 percent for PTSD, but no higher, for the entire appeal period (January 15, 2008 through June 29, 2013) is warranted.  The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit an even more favorable determination.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In adjudicating a claim the Board must assess the competence and credibility of the Veteran.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what she observes or experiences concerning PTSD.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, she is not competent to identify a specific level of disability of PTSD according to the appropriate diagnostic code.  Competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings directly address the criteria under which the Veteran's PTSD is evaluated.  Therefore, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted.

Neither the Veteran nor her representative (attorney) has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. Ap. 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).


ORDER

A rating of 70 percent for PTSD from January 15, 2008 through June 29, 2013, is granted, subject to the applicable law governing the award of monetary benefits.


REMAND

At the November 2010 VA examination the Veteran indicated that she has not worked since 2008, and essentially attributed her inability to work to her PTSD.  A claim for TDIU is part of an increased rating issue when such claim is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran has essentially asserted that she has been unable to work due to her service-connected PTSD.  As such, TDIU must be adjudicated by the AOJ prior to appellate consideration.

Accordingly, the case is REMANDED for the following actions:

1.  Issue VCAA notice relative to the issue of entitlement to a TDIU.

2.  Obtain all VA medical records pertaining to treatment of the Veteran dated since March 12, 2018 and associate them with the record.

3.  Then, adjudicate the TDIU claim.  If the benefit is not granted, a supplemental statement of the case should be issued, the Veteran and her representative should be afforded the appropriate period to respond, and the case should thereafter be returned to the Board, as appropriate.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112.




______________________________________________
J. Schulman
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs