Citation Nr: 18160372
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 14-15 297
DATE:	December 26, 2018
ORDER
Subject to the law and regulations governing payment of monetary benefits, a 70 percent rating for PTSD is granted. 
REMANDED
Entitlement to a rating in excess of 70 percent for service connected PTSD is remanded.
Entitlement to a total disability rating based on individual unemployability due to service connected disabilities is remanded.  
FINDING OF FACT
Throughout the appeal period, the Veteran’s PTSD has been productive of at least occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  
CONCLUSION OF LAW
The criteria for an initial rating of 70 percent for PTSD are met throughout the appeal period.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.7, 4.130, Diagnostic Code 9411 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service from January 1972 to January 1974.  The Veteran had service in the Republic of Vietnam and is in receipt of the National Defense Service Medal, Vietnam Service Medal, and Rifle Marksman Badge. 
The Veteran presented sworn testimony at a hearing before the undersigned in October 2018.  
1. Increased Rating 
Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2017).  When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two evaluations is to 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.  38 C.F.R. § 4.7 (2017).
Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found.  Id.  
The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 148 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C. § 7104 (a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the appellant, and the appellant’s demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996).
In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107 (b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).
Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The Veteran asserts that his PTSD is more severe this his current rating of 50 percent, and an increased rating is warranted.  After a careful review of the evidence of record, the Board finds that a rating of 70 percent is warranted for the period on appeal.  
The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides for a 50 percent rating when the evidence shows 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.
A 70 percent rating is warranted when the evidence shows 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.
Ratings are assigned according to the manifestation 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).  In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim.
After a review of the record, the Board finds that the Veteran’s PTSD has been more productive of symptoms, such as suicidal ideation, violent aggressive behavior, which the Veteran described at his October 2018 Board hearing.  The Veteran also has symptoms of depressed mood, anxiety, and chronic sleep impairment.  
The most recent VA examination that determined the severity of the Veteran’s PTSD disability took place in January 2014.  In addition to the Veteran’s diagnosis of PTSD, he also carries diagnoses of depression and anti-social personality disorder.  The examiner stated that the symptoms attributable to the Veteran’s PTSD diagnosis include: reactivity to triggering stimuli, hypervigilance, sensitivity to people of other races, insecurity in male role, depression, depressed mood, anhedonia, low energy and motivation, sleep disturbance, and polysubstance abuse.  The examiner noted that the Veteran’s level of functional impairment is described as “reduced reliability and productivity” but when coupled with substance abuse, the level of impairment increases to deficiencies in most areas.   
At the examination, the Veteran reported that he feels socially isolated, he discontinued his medication for depression and anxiety, and he has chronic sleep disruptions (waking up more than 15 times a night and nightmares).  
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 (i.e., since his December 6, 2010 claim). In addition, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation.  See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (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.”).  The Board notes that at the Veteran’s hearing he stated that he had suicidal ideation and it is also noted in his VA treatment records.  See November 28, 2016 VA Treatment Record.  
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
1.  Entitlement to a rating in excess of 70 percent for service connected PTSD is remanded.  
During the October 2018 Board hearing, the Veteran testified that his service-connected PTSD has worsened since his last VA examination.  As such, VA is required to afford him a contemporaneous VA examination to assess the current 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).  Thus, this claim must be remanded.
2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities is remanded.  
Also during the October 2018 Board hearing, the Veteran indicated that he was either unemployed or under employed to his service-connected PTSD.  Thus, the issue of entitlement to a TDIU has thus been raised by the evidence of record.  See Rice, 22 Vet. App. at 453.  This issue should be developed and adjudicated in the first instance by the AOJ, to include appropriate notification and a request for the Veteran to submit a formal application for a TDIU (VA Form 21-8940).
The matter is REMANDED for the following action:
1. Request that the Veteran submit a formal TDIU claim form (VA Form 21-8940), and ensure that he receives appropriate VCAA notice for a claim of entitlement to a TDIU.
2. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge of the nature, extent, and severity of his service-connected psychiatric disability.  He should be provided a reasonable amount of time to submit this lay evidence.  
3. Schedule the Veteran for an appropriate VA psychiatric examination to determine the nature, extent, and severity of his psychiatric disability.  The claims file must be made available to and reviewed by the examiner.  
All tests deemed appropriate by the examiner should be performed.
The examiner should report all pertinent findings and comment on the severity of any social and occupational impairment related to his psychiatric disability.

 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Anderson 

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