Citation Nr: 19166019 Decision Date: 08/26/19 Archive Date: 08/26/19 DOCKET NO. 16-62 547 DATE: August 26, 2019 ORDER Entitlement to an increased rating in excess of 70 percent from July 29, 2014 forward for post-traumatic stress disorder is denied. FINDING OF FACT During the appellate period, the Veteran’s service-connected post-traumatic stress disorder was manifested by psychiatric symptoms causing occupational and social impairment with deficiencies in most areas; total occupational and social impairment is not shown. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 70 percent for post-traumatic stress disorder from July 29, 2014 forward have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the U.S. Marines from November 1989 to November 1995. During this time, he was awarded the Kuwait Liberation Medal, the Southwest Asia Service Medal, the Navy Achievement Medal, the Combat Action Ribbon, and the National Defense Service Medal, among other awards. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from an October 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which continued the Veteran’s 50 percent evaluation for his service-connected post-traumatic stress disorder (PTSD) from December 2012 forward. In November 2016, the RO increased the Veteran’s evaluation to 70 percent from July 29, 2014 forward, the date of receipt of the Veteran’s claim for an increased rating; the Veteran timely appealed this decision. A subsequent rating decision issued by the RO granted the Veteran entitlement to a total disability rating based on individual unemployability (TDIU) effective July 29, 2014, the date of receipt of the Veteran’s claim for an increased rating for his service-connected PTSD. See October 2017 Rating Decision. The grant of TDIU represents a full grant of the benefit sought on appeal; therefore, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. The Veteran’s PTSD has been rated as 70 percent disabling from July 29, 2014 forward, under 38 C.F.R. § 4.130, Diagnostic Code 9411, according to VA’s General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. A 70 percent rating requires 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); and inability to establish and maintain effective relationships. Id. The maximum 100 percent rating requires 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 each evaluation under the General Rating Formula do not constitute an exhaustive list, 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, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. Rather, VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM). Id. at 443. The Federal Circuit clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must 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 (2016); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the “frequency, severity, and duration” of a veteran’s symptoms “play an important role” in determining the disability level). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating to determine whether and when an ascertainable increase has occurred. Hart, 21 Vet. App. at 509; Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hazan v. Gober, 10 Vet. App. 511, 519 (1992); 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Entitlement to an increased rating in excess of 70 percent for post-traumatic stress disorder The Veteran has asserted that a higher rating is warranted for his service-connected post-traumatic stress disorder (PTSD) than the 70 percent currently assigned from July 29, 2014 forward. Evaluating all the evidence of record, the Board finds that from July 29, 2014 forward, the frequency, severity, and duration of the Veteran’s reported psychiatric symptomatology more closely approximates the criteria for a 70 percent rating. In this regard, the evidence reflects that the Veteran’s service-connected PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: difficulty in adapting to stressful circumstances (including work or a work like setting), inability to maintain effective relationships, as well as impaired judgment, memory, concentration, and impulse control. 38 C.F.R. § 4.130, DC 9411; 38 C.F.R. § 3.400(o); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In particular, the evidence reflects that from July 29, 2014 forward, the Veteran’s PTSD was manifested predominantly by symptoms of near-continuous depression affecting the ability to function independently, appropriately, and effectively, suicidal ideations without intent or plan, anxiety, chronic sleep impairment, impaired concentration, disturbances of motivation and mood, irritability, difficulty adapting to stressful circumstances, and isolative behaviors contributing to difficulty in establishing and maintaining relationships. See, e.g., May 2014 San Bernadino Vet Center Progress Note (observing that the Veteran agreed to attend a PTSD support group after acknowledging that he had begun drinking again); February 2015 Loma Linda HCS Mental Health Telephone Encounter Note (recording that the Veteran wanted to make an appointment, and denied having homicidal or suicidal ideations); September 2016 Loma Linda HCS Addendum (indicating that the Veteran reported having stress within his marital relationship, job-related stress due to bankruptcy of his personal business, and was working in contracting); October 2016 VA PTSD Disability Benefits Questionnaire (DBQ) (diagnosing the Veteran with PTSD, major depressive disorder, and alcohol use disorder, and noting that Veteran had been married for 18 years and had symptoms that included anxiety, panic attacks more than once a week, passive suicidal ideations, logical thought processes, mildly impaired insight and judgement, and denied having homicidal ideations, hallucinations, and thought disorder); January 2017 Loma Linda HCS Psychiatry Note (reporting that the Veteran admitted relapsing and drinking over the holidays, was irritable, depressed, and hypervigilant, and denied having homicidal or suicidal ideations); April 2017 Loma Linda HCS Psychiatry Note (reflecting that the Veteran was anxious, denied homicidal or suicidal ideations, displayed concentration problems, felt like he was disconnecting with his family, and expressed wanting to be more involved in his wife’s life); September 2017 VA PTSD DBQ (recording that the Veteran’s substance abuse was no longer in remission, and noting that he displayed symptoms including irritable behavior with angry outbursts, self-destructive behavior, exaggerated startle response, concentration problems, hypervigilance, sleep disturbances, panic attacks occurring weekly or more, feelings of worthlessness, sadness, poor motivation, and recurrent suicidal ideations without plan). An increased rating in excess of 70 percent from July 29, 2014 forward is not warranted, as the weight of the evidence does not show that the Veteran has total occupational and social impairment as contemplated by a 100 percent schedular evaluation. In this regard, the Veteran’s treatment records and psychological examinations conducted during the appellate period do not describe symptoms such as gross impairment in thought processes or communication; persistent danger of hurting self or others; disorientation to time; and memory loss for names of close relatives, own occupation, or own name. Likewise, such symptomatology is not identified in the remainder of the evidence to include the various treatment records and statements from the Veteran regarding his symptomatology. Nor does the evidence of record reflect that the Veteran had homicidal ideations. In light of the foregoing, the Board concludes that a rating in excess of 70 percent for PTSD from July 29, 2014 has not been met. In finding that the criteria for a 100 percent schedular evaluation is not warranted. The Board recognizes that the severity of the Veteran’s PTSD is of such severity to render him unemployability. The impact of the Veteran’s PTSD on his employability has been recognized by the agency of original jurisdiction and has been considered with the assignment of a TDIU throughout the course of the appeal. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Raj, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.