Citation Nr: 19106925 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 15-02 968 DATE: January 29, 2019 ORDER Entitlement to an initial rating of 70 percent, 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 initial rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 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 1968 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for PTSD and assigned a 10 percent rating, effective February 8, 2011. He timely disagreed with the initial rating assigned. In December 2014, the RO increased the assigned rating for PTSD to a 30 percent, effective February 8, 2011, the date of the Veteran’s claim for service connection. The Veteran has not expressed satisfaction with the increased disability rating. This issue thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In October 2015, the Veteran was scheduled to appear at a Board hearing before a Veterans Law Judge. He failed to appear for said hearing, and has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). Entitlement to an initial rating higher than 30 percent for PTSD. The Veteran’s PTSD is rated 30 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 30 percent rating is assigned when 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 (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 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 January 2013, the Veteran was afforded a VA examination. He reported feelings of detachment or estrangement from others, irritability or outbursts of anger, depressed mood, anxiety, disturbances of motivation and mood, and suicidal ideation. He stated that he has been married to his current wife for three years. He and first wife divorced in 1988. He has two daughters from his first marriage. He has four grandchildren. He has a good relationship with his family. He is currently retired. He was last employed for 15 years at a water line distribution and maintenance company. Prior to his last previous employment, he worked in a trucking and warehousing industry. The VA examiner found that the Veteran’s PTSD causes 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. The examiner aloo indicated that the Veteran’s PTSD cause significant distress or impairment in social, occupational, or other important areas of functioning. During a September 2014 VA treatment visit, the VA psychologist documented the Veteran’s reports of depression and chronic sleep impairment. The VA psychologist found that the Veteran was appropriately dressed and groomed for the appointment. His behavior was appropriate. His though process was normal. He denied suicidal or homicidal ideation. During an October 2014 VA treatment visit, he reported suicidal ideation, but denied current intent or plan. The Veteran reported that he remains close to his adult children. He stated that he has good social support from his wife and his adult children. He stated that he has siblings who live in another state; however, they visit each other a couple time a year. He stated that he has good social support from his wife and his adult children. In the Veteran’s representative’s January 2019 informal hearing presentation, the Veteran’s representative reported that the Veteran experiences suicidal ideation. For the following reasons, entitlement to an initial rating of 70 percent, but no higher, for PTSD is warranted. The Veteran’s symptoms and overall impairment caused by his PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, as contemplated in the 70 percent rating under DC 9411. Here, the Veteran has reported feelings of detachment or estrangement from others, irritability or outbursts of anger, and suicidal ideation. The United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 “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 in most areas.”). Here, throughout the appeal period, the Veteran has reported suicidal as contemplated by Bankhead. 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 is currently retired and he is, thus, unemployed, his PTSD symptoms have not more nearly approximated total social impairment. For example, the Veteran has reported that he has remained married to his second wife and has consistently reported that he has a good relationship with his family. He stated that he has siblings who live in another state; however, they visit each other a couple time a year. 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 did not have memory loss. He was not found to be a persistent danger to hurt others. 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 initial 70 percent rating, but no higher, is warranted for the entire claim period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 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, although the Veteran reported that he is retired, he 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. The Board has considered the Veteran’s initial 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). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel