Citation Nr: 19159255 Decision Date: 07/31/19 Archive Date: 07/31/19 DOCKET NO. 15-40 813 DATE: July 31, 2019 ORDER A 70 percent for PTSD with specified depressive disorder, generalized anxiety disorder and alcohol use disorder for the entire appeal period is granted. REMANDED Entitlement to a rating in excess of 70 percent for PTSD with specified depressive disorder, generalized anxiety disorder and alcohol use disorder is remanded. FINDING OF FACT The evidence demonstrates that the Veteran’s PTSD has been productive of suicidal tendencies and occupational and social impairment with deficiencies in most areas throughout the appeal period. CONCLUSION OF LAW The criteria for a rating of 70 percent, but not greater, prior to December 30, 2015 for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 2004 to November 2006. Entitlement to a rating in excess of 30 percent for PTSD prior to December 30, 2015. The Veteran asserts that his service-connected PTSD is more severe than his current assigned disability rating and that he is entitled to a higher rating. See March 2016 VA 646 Statement of Accredited Representative in Appealed Case. The Veteran’s service-connected PTSD is rated at 30 percent from October 30, 2012 and from 70 percent from December 30, 2015. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which 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. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is assigned where 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 behaviour, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is an 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is an 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. A 100 percent rating is warranted when the evidence shows 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. Id. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the term “such as” 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The evidence supports a finding that the Veteran’s disability picture for PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood) for the appeal period. The frequency, severity, and duration of the Veteran’s impairment and assessing his disability picture, the Board finds that the preponderance of evidence demonstrates that disability due to the Veteran’s psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent. See VazquezClaudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In so finding, the Board notes that 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.”). Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports an initial 70 percent disability rating for the Veteran’s PTSD. The record shows that for the relevant part of the appeal, the Veteran’s PTSD symptomatology included suicidal thoughts. The December 2015 VA examination reflects the Veteran has a history of fleeting suicidal ideation, once or twice a year. The examiner noted, the Veteran has passing thoughts but no specific time or intent or plan. Additionally, in August 2013, the mother of the Veteran’s child stated that he grabbed her by the throat when he was having a nightmare but had no recollection of that event the next day. See August 2013 Budd y Statement. She added, he doesn’t trust people, doesn’t like to be in crowd, doesn’t have friends, has difficulty establishing and maintaining effective relationships and often says that he doesn’t do anything right and feels like a failure. Considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture, the Board finds that the evidence shows that the Veteran’s PTSD has approximated the criteria for a 70 percent rating for the entire appeal period. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the preponderance of the evidence supports a 70 percent for the Veteran’s PTSD throughout the appeal period. REASONS FOR REMAND VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. The Veteran last received a VA examination for PTSD in December 2015. However, the Veteran, through his representative, asserts that his PTSD symptoms have become has become so severe that they more nearly approximate to a 100 percent disability rating. See March 2016 VA 646 Statement of Accredited Representative in Appealed Case. Accordingly, the Board must afford the Veteran a contemporaneous examination to evaluate the nature, extent and severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA regulations specifically require the performance of a new medical examination when evidence indicates that there has been a material change in a disability). The matters are REMANDED for the following action: 1. Identify and obtain all outstanding treatment records regarding the Veteran’s claim. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his PTSD and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination to determine the current nature, extent and severity of his psychiatric disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, 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.