Citation Nr: 21064980
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 17-37 553
DATE: October 22, 2021

ORDER

Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with panic attacks and traumatic brain injury (TBI) is denied.

FINDING OF FACT

Throughout the period on appeal, the Veteran's PTSD with panic attacks and a TBI more closely approximated occupational and social impairment with reduced reliability and productivity without occupational and social impairment with deficiencies most areas, total social and occupational impairment or functional impairments associated with a TBI.

CONCLUSION OF LAW

The criteria for a rating in excess of 50 percent for PTSD with panic attacks and a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.124a, 4.126, 4.130, Diagnostic Codes 8045, 9411.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 2007 to March 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The issue was last remanded by the Board in March 2019 for VA treatment records through September 2015. The RO obtained and associated VA treatment records through September 2015 in October 2019. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998).

1. Entitlement to a rating in excess of 50 percent for PTSD with panic attacks and TBI

The Veteran asserts that he should be in receipt of higher ratings for his PTSD as his symptoms are more severe than that which is reflected by the current ratings assigned to include as due to his TBI.  In a July 2017 substantive appeal, the Veteran argued that the VA examination supported a rating of 70 percent.

The Veteran's PTSD with panic attacks and TBI is currently rated at 50 percent effective July 31, 2013 under Diagnostic Code 8045-9411. The Veteran's disabilities are evaluated by analogy under Diagnostic Code range 8045-9411 which assigns ratings based upon the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified and the General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.124, 4.130.

Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral dysfunction, and physical dysfunction. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045.

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."

Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, should be evaluated separately rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table, even if that diagnosis is based on subjective symptoms.

Emotional/behavioral dysfunction should be evaluated under § 4.130 (General Rating Formula for Mental Disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms should be evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."

Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions.

Also, the Diagnostic Code stipulates that the preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. Residuals not listed here that are reported on an examination are to be evaluated under the most appropriate diagnostic code. Each condition should be evaluated separately if the same signs and symptoms are not used to support more than one evaluation, and the evaluations for each separately rated condition should be combined under               § 4.25. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.

Diagnostic Code 8045 also stipulates that the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc., must be considered.

Diagnostic Code 8045 also states that the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100-percent rating is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The regulation provides the following example: assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet.

There are five notes that accompany the current version of Diagnostic Code 8045.

Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition.

Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign an evaluation.

Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.

Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045.

Note (5): A Veteran whose residuals of TBI are related under a version of § 4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating award as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable.

It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also 38 C.F.R. § 4.14 (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses).

In this case, the Veteran is service connected for PTSD with a TBI; however, as will be detailed below, the Board finds that his symptoms are overlapping and therefore separate ratings for each disability are not warranted. Specifically, the April 2017 VA examiner reported that the symptoms of TBI and PTSD overlap significantly and cannot be clinically apportioned at this time.

Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).

Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 50 percent rating is warranted if the disability is productive of 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 is warranted if the disability is 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: 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. Id. 

A schedular maximum 100 percent rating is warranted if the disability is productive 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 or place; memory loss for names of close relatives, own occupation, or own name. Id. 

In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.  

The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "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 only 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). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment.

The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in July 2020. As such, the DSM-5 applies, and the GAF scores will not be considered.

A review of the A review of the record reveals that the Veteran sought mental health treatment from VA, as well as treatment for his other health needs. To the extent that the Veteran's treatment records contain information relevant to the severity of his mental health, to include mental health screenings, the Board will summarize this evidence.

Turning to the evidence, during the appeal period, the Veteran reported for a VA examination in April 2017 and May 2017 to determine the severity of his PTSD and TBI.

During the May 2017 TBI VA examination, the Veteran's TBI manifested in no complaints of impairment of memory, attention, concentration, or executive functions, normal judgment, routinely appropriate social interaction, always orientation to person, time, place, and situation, and normal motor activity and visual spatial orientation. The examiner also found no subjective symptoms and no neurobehavioral effects. The Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. The Veteran's consciousness was normal. The examiner also observed no other subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI. The examiner observed no function impact resulting from the TBI.

In the April 2017 PTSD VA examination, the examiner identified PTSD, alcohol use disorder in early remission, unspecified personality disorder, and cannabis use disorder. The examiner reported that the cannabis use disorder is a new diagnosis secondary to both the PTSD and personality disorder. The examiner reported that it was possible to differentiate which symptoms are attributable to each diagnosis. For PTSD, the examiner attributed hypervigilance, intrusive memories, avoidance, and irritability/anger. The examiner reported that the occupational and social impairment with regards to all mental diagnoses was that of occupational and social impairment with reduced reliability and productivity. However, the examiner also explained that it was possible to differentiate what portion of the occupational and social impairment caused by each mental disorder and reported that the occupational and social impairment attributable to PTSD, alcohol use disorder, and cannabis use disorder is considered to be occupational and social impairment with reduced reliability and productivity; with the personality disorders, the examiner explained that its nature accounts for a significant portion of the Veteran's functional impairment, which combined with all diagnoses, resulted in an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran's current family/social support system consists of a friend and the friend's parents, with good social support. He does have a daughter but does not maintain contact with her, and he does also have few friends locally that he spends time with. Regarding occupational and educational history, the Veteran was unemployed at the time of the VA examination. After a brief review of the history, the examiner explained the current symptoms as anxiety, nightmares, "ball of emotions that come on sometimes," and trouble with sleep, among many other symptoms. At the time of the examination, the Veteran denied current suicidal or homicidal ideation, intent, or plan; there was no indication of imminent or acute threat of harm to self or others. The Veteran did receive psychiatric hospitalization after a reported suicide attempt between December 2013 to January 2014. For VA purposes, the Veteran's PTSD manifested in depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation. At the examination, the Veteran also reported to receiving continuous mental health care. The examiner ultimately opined that the Veteran is able to maintain activities of daily living including personal hygiene, self-care, and household chores. The examiner determined that the Veteran's risk assessment was low at this time.

Also of record are several VA treatment records showing that the Veteran attended various mental health assessments, mostly to receive help with PTSD and anger issues. While the Veteran denied suicidal ideation early in 2013, in January 2014 VA mental health treatment record, the Veteran was noted to be experiencing suicidal ideation. He was admitted in December 2013 and deemed stable enough for discharge in January 2014. That being said, December 2013 psychology inpatient note indicates that the Veteran needed a place to stay until December 27 and would indicate suicidality if that would help him stay although at the time, he did not experience suicidal or homicidal thinking. He had then planned to go to mental health service in another city.

Based on the foregoing, the Board finds that a rating in excess of 50 percent for PTSD with panic attacks and a TBI is not warranted. In this regard, the Board finds that such disability was manifested by occupational and social impairment with reduced reliability and productivity without occupational and social impairment with deficiencies in most areas or total social and occupational impairment.

Occupational and social impairment with deficiencies in most areas was not demonstrated during the appeal period.  Impairment to mood was demonstrated as the Veteran reported irritability and anger. Some impairment to family relations was demonstrated as the Veteran reported that he did not speak to his 18-year old daughter but also reported having good social support as well as having a few friends locally that he spends time with. Impairment to work was not demonstrated as the Veteran's Vocational and Rehabilitation records indicate that he is employed as an automobile technician and a March 2018 Narrative Report indicates that the Veteran was currently employed at a local automotive dealership doing labor type jobs in exchange for transportation and that he had been doing labor type jobs since his separation from service in 2011.  In addition, impairment to school was not shown as Vocational and Rehabilitation records reveal that the Veteran successfully completed coursework related to heating and refrigeration technology during the appeal period. In fact, a grade report for Fall 2018 indicates that the Veteran's overall grade point average was 3.85.  Impairment to thinking was not demonstrated as auditory/visual hallucinations or paranoia were not reported by the Veteran or noted on clinical examination. Impairment to judgment was not demonstrated as the July 2017 VA examiner found judgment to be intact.

Moreover, although the Veteran's VA treatment records indicate that the Veteran experienced suicidal ideation during the appeal period, the Veteran himself had explained at the time of the psychology inquiry that he would indicate suicidality to find himself a place to stay. While the Veteran was noted to have experienced suicidal ideation, the Board also notes the December 2013 VA psychology note where the Veteran explained the intent to indicate suicidality as necessary. In addition, the April 2017 VA examiner found that the Veteran's suicidal ideations was attributed to his nonservice-connected personality disorder rather than his PTSD.  During the April 2017 VA examination, the examiner also found no symptoms or facets of TBI to functionally impact the Veteran. The Veteran has not alleged, and record does not establish, obsessional rituals which interfere with routine activities, speech that was intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty adapting to stressful circumstances, or inability to establish and maintain effective relationships. Therefore, the Board that occupational and social impairment with deficiencies in most areas has not been demonstrated.

Moreover, total social and occupational impairment was not demonstrated. Total social impairment was not demonstrated as the Veteran maintained a relationship with his friends.  Total occupational impairment was not demonstrated as the Veteran was employed as an automotive technician. The Veteran has not alleged, and the record does not demonstrate, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting self or others, an intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, disorientation to time or place or memory loss for names of close relatives, own occupation, or own name.  Although the Veteran reported suicidal ideations, no suicidal attempts were noted and there is no evidence that the Veteran was a persistent danger of hurting himself or others. Additionally, there is no evidence or allegation that he was unable to maintain minimal personal hygiene. Mental status examinations during the appeal period consistently found the Veteran's grooming and hygiene to be appropriate or adequate. There is no evidence or allegation that the Veteran's psychiatric symptoms manifested in interference or difficulties resulted in the inability to perform activities of daily life, to include maintenance of minimal hygiene. There is no evidence, and the Veteran has not alleged, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, Therefore, this is not a disability picture indicating total occupational and social impairment at any time during the appeal period.

The Board notes that the April 2017 VA examiner diagnosed the Veteran with an unspecified personality disorder as well as PTSD and determined that it was possible to differentiate what symptoms are attributable to each diagnosis. The examiner determined that the Veteran's PTSD caused hypervigilance, intrusive memories, avoidance and irritability/anger. The examiner then determined that the Veteran's personality disorder caused an enduring pattern of inner experience and behavior that is pervasive across a broad range of personal and social situations and manifests in cognition, affectivity, interpersonal functioning and impulse control. The examiner noted that the Veteran's personality disorder includes symptoms of diminished motivation, difficulty in maintaining effective relationships, difficulty adapting to stressful circumstances including a work-like setting and suicidal ideation/history of attempts and psychiatric hospitalizations related to suicide were related to the personality disorder.  The examiner further noted that, due to the chronic and generalized nature of personality disorders, these diagnoses clinically exhibit widespread and pervasive effects on a number of major areas of life and the personality disorder diagnosis is considered to account for a significant portion of the Veteran's functional impairment. The examiner indicated that the combined effects of all diagnoses was occupational and social impairment with deficiencies in most areas. Therefore, the Board finds that it is possible to differentiate the symptoms and manifestations of his nonservice-connected personality disorder from his service-connected PTSD as discussed above. See Mittleider v. West, 11 Vet. App. 181 (1998). To the extent that the Veteran has argued that the April 2017 VA examination report supports a 70 percent rating, the Board notes that the April 2017 VA examiner determined that it was the combined effects of the Veteran's service connected PTSD and nonservice-connected personality disorder that resulted in occupational and social impairment with deficiencies in most areas. This argument is therefore without merit.

In assessing the severity of his PTSD, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

The Board notes the contentions of the Veteran that his PTSD with panic attacks and TBI is more severe than currently shown on examination; and the Board observes that the Veteran, while he was competent to report his observable symptoms, is not competent to report that his mental health symptoms were of sufficient severity to warrant a higher rating under VA's tables for rating such disabilities because such an opinion requires medical expertise which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). Despite the foregoing, the Board acknowledges the Veteran's assertions that the Veteran's various symptoms and functional impairments warrant a 70 percent rating. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher rating are not met. See Lendenmann, supra. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). This argument is therefore without merit.

The Board has considered whether a staged rating under Hart, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. The Veteran nor his representative have not otherwise raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted above, the record establishes that the Veteran is currently employed.  As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra.

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Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 50 percent thereafter for PTSD with panic attacks and TBI. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.J. Kim, 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.