Citation Nr: 1754201	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-08 838	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD).


Appellant represented by:	National Association of County Veterans Service Officers


The Veteran


L. Barstow, Counsel

The Veteran had active military service from February 1987 to June 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the VA Regional Office (RO) in Newark, New Jersey.

In July 2016, the Veteran testified at a hearing conducted before the undersigned.  A transcript has been associated with the claims file.

In November 2016, the Board granted service connection for tinnitus and remanded the issues of service connection for a lumbar spine disorder and an increased rating for PTSD.  In an April 2017 rating decision, service connection for a lumbar spine disorder was granted.  As such, the only issue remaining on appeal is an increased rating for PTSD.


The Veteran's PTSD has been shown to be productive of occupational impairment and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms not adequately contemplated by the criteria for a 50 percent evaluation.


The criteria for a 70 percent rating for PTSD have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.126a, 4.130, Diagnostic Code 9411 (2017).


I. Duties to notify and assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).

II. Increased rating claim

A. Applicable laws and regulations

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  


The Veteran is currently evaluated at the 50 percent rate for PTSD under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.  There is evidence to suggest that a higher rating of 70 percent is warranted.  Id.  The Veteran was provided VA examinations in March 2013 and January 2017.  The 2013 examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood.  In addition to PTSD, the Veteran was diagnosed with other nonservice-connected psychiatric and personality disorders.  The examiner opined that the Veteran's symptoms attributed to his PTSD were anxiety, suspiciousness, and chronic sleep impairment.  The examiner also opined that the Veteran's symptoms of violent aggressive behavior; disturbance of motivation and mood; difficulty forming and maintaining relationships; exacerbation of sleep impairment; paranoid thought process; and impaired judgement were associated with much more severe degrees of both social and occupational impairment and were attributed to his nonservice-connected psychiatric diagnoses.

The 2017 examiner only provided a diagnosis of PTSD.  The Veteran's reported PTSD-related symptoms included severe anxiety; suspiciousness; initial and middle insomnia; mild memory loss; anxious affect; intrusive recollections of military service based traumas; recurrent nightmares; infrequent dissociative flashback episodes; avoidance of activities, persons, and places that resembled aspects of his identified active duty traumatic experiences; diminished interest in participation in most daily activities; feeling detached/estranged from members of his extended family and friends; increasingly frequent irritability resulting in occasional displays of verbal aggression; frequent hypervigilance; and chronic difficulty initiating and maintaining most social relationships.  An examination showed symptoms of anxiety; suspiciousness; impairment of short- and long-term memory; impaired judgment; difficulty in establishing and maintaining effective work and social relationships; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.  

Based on the symptoms shown during the examinations, as the 2017 examiner did not diagnose the Veteran with any other psychiatric disorder other than PTSD, when affording the Veteran the benefit-of-the-doubt, the Board attributes the symptoms shown during this appeal to the service-connected PTSD.  See Mittleider v. West, 11 Vet. App. 181 (1998).  The Board finds this evidence to be more clinically characteristic of the criteria for a 70 percent evaluation under DC 9411, and such evaluation is warranted.  38 C.F.R. § 4.7.  

However, the highest rating of 100 percent is not warranted.  The evidence does not establish total occupational and social impairment.  Significantly, the Veteran has remained employed with the same employer throughout this appeal.  The 2017 examination shows that the Veteran has "successful social relationships with his wife and children."  His treatment records and VA examinations have not shown symptoms contemplated by a 100 percent rating, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  § 4.130, DC 9411.  Although the 2017 examiner reported that the Veteran had the intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, the severity of such symptom, when considering the other symptoms shown during this appeal, does not equate to a 100 percent rating.  No medical professional has provided any opinion indicating that the Veteran's disability results in total occupational and social impairment, and the Veteran's continued employment certainly weighs against such a finding.  

In rendering this decision, the Board has considered how the Veteran's symptoms impact his occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002).  The Board has also considered 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(a).  However, when considering the totality of the evidence, while the Veteran's symptoms are indicative of a 70 percent rating, they have not been shown to result in total occupational and social impairment.  

Consequently, the criteria for a 70 percent rating, but no higher, have been met.  In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (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).


A 70 percent evaluation for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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