Citation Nr: 21002007 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-16 126 DATE: January 12, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is granted, for the entire period on appeal, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected psychiatric disorder symptoms have more nearly approximated occupational and social impairment, with deficiencies in most areas; symptoms of total occupational and social impairment have not been demonstrated. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial rating of 70 percent, and not higher, for service-connected PTSD with MDD, for the entire period on appeal, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1969 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in May 2012. The Board remanded the case to the AOJ in July 2019 following a February 2019 Board hearing. On remand, and in an August 2020 rating decision, the AOJ increased the rating for the Veteran’s PTSD with MDD to 50 percent effective December 3, 2019; the AOJ continued the denial of the claim for a rating in excess of 30 percent prior to December 3, 2019. Because the increase in evaluation of the Veteran’s PTSD with MDD does not represent the maximum evaluation available for the condition, the Veteran’s claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board finds the issue of entitlement to a TDIU was raised by the record and by testimony of the Veteran during a February 2019 Board hearing; therefore, the issue is added to the issue on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an increased rating for PTSD with MDD The Veteran filed an appeal of a May 2012 rating decision, which granted service connection for PTSD with MDD with an evaluation of 30 percent effective June 23, 2011. As noted, in an August 2020 rating decision, the AOJ increased the rating for the Veteran’s PTSD with MDD to 50 percent effective December 3, 2019. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). After a review of the evidence, for reasons set forth below and resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran’s service-connected psychiatric disorder have more nearly approximated the criteria for a 70 percent rating, but not higher, for the entire period on appeal. The Veteran’s PTSD with MDD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 and the General Rating Formula for Mental Disorders. According to the General Rating Formula, a 30 percent evaluation is warranted 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 behavior, 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). Id. A 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Vazquez-Claudio, supra. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a Veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009); see also 38 C.F.R. § 4.126(a); compare Massey v. Brown, 7 Vet. App. 204, 208 (1994). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the Veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the Veteran’s symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). The Board notes that effective August 4, 2014, the regulations governing the rating of mental disorders were updated to replace all references to the DSM-IV with references to the DSM-V, which no longer utilizes the GAF score system. 80 Fed. Reg. 14308 (Mar. 19, 2015). This change applies to claims that were certified for appeal to the Board after August 4, 2014. Id. As the Veteran’s claim had been certified to the Board in January 2018, the DSM-IV is no longer applicable to his claim. Throughout the period on appeal, the symptoms of the Veteran’s PTSD with MDD were manifested primarily by ongoing symptoms of anxiety; social withdrawal; unprovoked irritability; nightmares; hypervigilance; exaggerated startle response; suspiciousness; near-continuous depression; anxiety; chronic sleep impairment ad nightmares; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and mild cognitive impairment. See July 2011 VA treatment record; January 2012, September 2017, and December 2019 VA examinations. The Board finds that the Veteran’s symptomatology throughout the period on appeal has been consistent with and more nearly approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, the criteria for a 70 percent rating. Although the medical evidence does not show symptomatology such as 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, the symptoms noted in the rating schedule 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 disability rating. Mauerhan, supra. Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 70 percent rating appear to be demonstrated throughout the period on appeal. However, the Board finds that the symptoms associated with the Veteran’s PTSD with MDD do not meet the criteria for a 100 percent rating at any period of this appeal. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran’s psychiatric disorder. The Board acknowledges the testimony of the Veteran’s spouse that the Veteran had difficulty maintaining his personal hygiene; however, the Board notes that the Veteran and his spouse testified that his difficulty with maintaining his personal hygiene was due to a lack of motivation rather than an inability to perform activities of daily living. The Board finds that the evidence of record does not indicate that the Veteran has exhibited persistent delusions; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Throughout the record, the Veteran was consistently found to be oriented; he was able to maintain relationships and socialize with his spouse, family and friends to some extent, though, the Board acknowledges, that the Veteran reported that he had become increasingly withdrawn. Therefore, the Board finds that total social and occupational impairment has not been shown. In sum, the Board finds that the psychiatric symptoms shown do not support the assignment of the maximum 100 percent schedular rating. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran and his representative raised the issue of entitlement to a TDIU during the February 2019 Board hearing. The AOJ should develop the issue. The matters are REMANDED for the following action: Request that the Veteran fill out a current formal TDIU application form (VA Form 21-8940); and conduct all indicated development to adjudicate the Veteran’s raised TDIU claim. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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.