Citation Nr: 1626269 Decision Date: 06/30/16 Archive Date: 07/11/16 DOCKET NO. 13-27 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a higher initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in which the RO awarded service connection for PTSD and assigned a 50 percent rating effective February 1, 2011. In December 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2013 and the Veteran perfected a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2013. Thereafter, in a July 2013 rating decision, the RO, inter alia, assigned an earlier effective date for the grant of a 50 percent rating for PTSD. The effective day was January 31, 2011 (the date the Veteran filed his claim). Despite the award of an earlier effective date, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 50 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). The Veteran was scheduled for a travel Board hearing in June 2016, but did not appear. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). This appeal was processed utilizing the Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT Symptoms and overall impairment caused by PTSD have more nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As the Board is granting the application to reopen, further discussion of the VCAA in this regard is unnecessary. As to the claim for a higher initial rating for PTSD, this claim arises from the Veteran's disagreement with rating assigned in connection with the grant of service connection for this disability. Where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007). In addition, VA fulfilled its duty to assist the Veteran in obtaining the identified and available evidence needed to substantiate the claim and affording the Veteran two VA PTSD examination, in October 2011. The discussion below reflects that the examination was based on consideration of the Veteran's prior medical history and described his PTSD in sufficient detail to allow the Board to make a fully informed evaluation, to include increasing the initial rating to 70 percent. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board therefore finds that the examination was adequate. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board will therefore proceed to the merits of the claim for a higher initial rating for PTSD. Higher Initial Rating for PTSD Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Here, however, as shown below, the evidence warrants a uniform 70 percent rating. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. The Board notes that, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders, including 38 C.F.R. § 4.130, to remove outdated references to the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See Final Rule, Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). As the provisions of this amendment were not intended to apply to claims that had been certified for appeal to the Board on or before August 4, 2014, see id., and this case was certified in December 2013, the Board will not consider them in this decision. The Veteran's PTSD is currently rated 50 percent disabling under the general rating formula, which contemplates for such a rating for 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 effective work and social relationships. A 70 percent rating is warranted for 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. The maximum schedular 100 percent rating is warranted for 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. During the pendency of the claim, the Veteran has had symptoms such as those listed in the criteria for a 30, 50, and 70 percent rating. On the October 2011 VA examination, the Veteran complained of chronic sleep impairment, nightmares, impaired memory, and irritability. He also endorsed symptoms of anger, anxiety, panic attacks, trouble remembering things, and had difficulties in his personal, family, and occupational relationships due to his PTSD. The Veteran reported that he is married to his fourth wife of whom he has a good relationship, which he attributes to his being gone often. He also described having a good relationship with his only son, having no close friends and the tendency to isolate himself from his family. On examination his mood was anxious; he demonstrated good insight and judgment, with a constricted affect and some difficulty concentrating. The Veteran indicated past thoughts of suicide in the early 1980s but no recent suicidal or homicidal ideation. The examiner listed specific symptoms of sleep impairment, difficulty concentrating, hypervigilance, exaggerated startle response, frequent nightmares, and avoidance and detachment from others, which persisted over the past 40 years. Additionally, the Veteran's inability to maintain minimum personal hygiene and problems with activities of daily living were also noted. The examiner opined that symptoms did not result in total occupational and social impairment or deficiencies in most area. Post-service treatment records dated from December 2010 through July 2012 are associated with the claims file. During the period on appeal, treatment reports show that the Veteran was diagnosed with PTSD, chronic, mood disorder, not otherwise specified (NOS), and paranoid personality disorder manifested by symptoms to include anger, irritability, difficulty sleeping, nightmares, and the inability to establish and maintain effective relationships. See October 2011 VA PTSD Examination; January 2012 private Mental Status Examination. The Veteran also denied suicidal and homicidal ideation. During the period on appeal, VA treatment records reflect medication management for PTSD and the Veteran's GAF score ranged from 51 to 65, indicative of moderate to serious symptoms. Additionally, examination during this period consistently indicated that insight, judgment, concentration, and memory were grossly intact. Specifically, a February 2010 VA mental health record shows the Veteran presented with symptoms of irritability and anger and reported that he and his wife are approaching separation or getting divorced and that he will also likely lose his job. He also reported that medication is helpful with controlling his symptoms. See Salisbury NC VA Medical Center treatment records. A March 2011 VA mental health record shows the Veteran reported having marital problems due to his anger and irritable attitude. He reported that medication helps with his irritability around others. He also reported that he visits his son once a month in Pittsburgh and that he currently worked 40-50 hours a week. The examiner opined that the Veteran's Global Assessment of Functioning (GAF) score was 65. A May 2011 VA mental health record shows the Veteran reported that his relationship with his wife was good and that he also speaks with his son and two grandchildren every week. A January 2012 private mental status examination report from J. R. A., Jr., MA reflects that the Veteran indicated one past suicide attempt in 1972 but at the last minute he did not follow through with the attempt. He also denied recent suicidal or homicidal ideation. He described PTSD manifested by numerous symptoms, as unprovoked anger "at the slightest thing, get violent, tear phones off the wall, throw things through windows." He reported employment at various locations over the past 25 years as a truck driver, which required a lot of traveling. He explained that he is home every two or three weeks for two or three days but if he is home for a longer period he becomes restless and irritated. Although he reported his job is going fairly well he admitted having problems with his temper and difficulty being around a lot of people, which resulted in leaving past jobs due to emotional or behavioral problems. He also reported feelings of harming others, and having had assaulted others, which resulted in their hospitalization. He further admitted to having plans or intent to harm others indicating that it was "work-related." He is currently married for the fourth time and resides home with his wife and 12 year-old step son. According to the Veteran's reports, he has a good relationship with his wife, however he often isolates himself describing that while at home he feels "edgy" indicating that he travels constantly with work. He reported dissociative episodes where he will "lose time" especially while driving, difficulty sleeping, and difficulty with concentration and focus. He explained having paranoid ideas associated with Vietnam and the government. Specifically, that possibly his phone is tapped and that maybe the VA has put some type of implant into him to track his whereabouts. The examiner indicated that the Veteran's "interpersonal relationships are characterized by a paranoid, suspicious, resentful, and difficult posture, and by an aggressive oversensitivity with a history of fighting and serious assaultiveness." Thought processes were accelerated and speech patterns were coherent but somewhat tangential. The examiner assigned a GAF score of 45 and concluded that the Veteran was extremely paranoid, hostile, and has adapted a driven, compulsive lifestyle where he must constantly be on the road, and changing locations. On the October 2011 VA examination, the examiner found that the Veteran's PTSD disability caused occupational and social impairment with reduced reliability and productivity, which are the symptoms and impairment indicated in the criteria for a 50 percent rating. Specifically, the Veteran's mood was anxious on a daily basis, the inability to perform activities of daily living (including maintenance of minimal personal hygiene), memory loss, difficulty controlling anger to include a past history of fighting and various arrests for assault, and difficulty concentrating for longer than 20 minutes at a time. The examiner opined that the Veteran's GAF score was 57 and concluded that PTSD symptoms did not result in deficiencies in areas such as work, family, judgment, thinking, and mood. The examiner's characterization of the level of disability as described in the general rating formula is not, however, binding on the Board. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (noting that it is the duty of VA adjudicators, not medical examiners, to apply the appropriate legal standard). The above evidence reflects that the Veteran had symptoms of anxiety, suspiciousness, and mild memory loss (30 percent criteria), panic attacks more than once a week, difficulty in establishing and maintaining effective work and social relationships due to isolation irritability, and anger (50 percent criteria), a history of impaired impulse control (such as periods of violence resulting in various arrests for assault), and the inability to maintain minimum personal hygiene (70 percent criteria). The Board finds that this evidence reflects that the Veteran had deficiencies in areas such as work, family, judgment, thinking, and mood. The evidence is thus at least evenly balanced as to whether the Veteran's symptoms and overall level of impairment more nearly approximated the criteria for a 70 percent rating throughout the pendency of the claim. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an initial rating of 70 percent is warranted. A higher schedular rating of 100 percent is not, however, warranted because the Veteran's symptoms and overall level of impairment did not more nearly approximate the criteria for such a rating and the evidence was not approximately evenly balanced on this question. The Veteran did have symptoms that approximated those listed in the criteria for a 100 percent rating. The October 2011 VA examiner noted the Veteran's inability to perform activities of daily living, including maintenance of minimal personal hygiene, and slight to moderate problems with daily activities. However, the examiner also noted that he was capable of grooming, bathing, and dressing independently. It was also determined that he was able to manage his own finances. Further, the Veteran has maintained employment as a truck driver for the past 25 years. See January 2012 Private Mental Status Examination Report. To the extent that these symptoms constitute or approximate the inability to maintain hygiene listed in the criteria for a 100 percent rating, the Veteran's other symptoms and overall symptomatology reflect that his disability picture more nearly approximates the criteria for a 70 percent rating, for the following reasons. The Veteran was oriented to time, place, and person on examination, and there was no indication of gross impairment of thought processes or communications. The Veteran indicated that he had attempted suicide in the past, unprovoked anger, which resulted in violent behavior such as tearing phones off the wall, throwing things through windows; and during the January 2012 private mental examination admitted to current thoughts of harming others. While the evidence reflects significant distress or impairment in social, occupational, or other important areas of functioning, the evidence did not reflect that he was a persistent danger of hurting himself or others, or that he was intermittently unable to perform the activities of daily living, indicative of total social and occupational impairment. The October 2011 VA examiner specifically noted that the Veteran had problems with activities of daily living, but was capable of grooming independently. In addition, while he has problems with memory, insight and judgment were normal. VA mental health treatment records reflect the same. Moreover, while the Veteran indicated on the October 2011 VA examination that his social interaction as a truck driver was poor, he indicated on the January 2012 private mental status examination that his job was going fairly well. The Veteran admitted to problems with his temper and difficulty being around a lot of people, which resulted in leaving past jobs due to emotional or behavioral problems, but did not indicate that his occupational impairment more nearly approximated the total occupational impairment required for a 100 percent rating, as he was continuing to work. He also admitted thoughts of harming others, indicating that it was "work-related." The January 2012 private clinician opined that the Veteran's mental health symptoms caused occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking and mood, due to such symptoms as suicidal and homicidal ideation, impaired impulse control with periods of violence, difficulty adapting to a work-like setting, and the inability to establish and maintain effective relationships. The October 2011 VA examiner found that the Veteran's mental health symptoms did not result in deficiencies in the areas of judgment, thinking, family relations, work, or mood. Given that the Veteran has had some social relationships in that he has maintained his marriage with his current wife for five years, in which he described as pretty good, as well as a good relationship with his son, and has indicated that his employment is going fairly well and he has also maintained employment as a truck driver for over 25 years, the Board finds that the preponderance of the evidence reflects that his symptoms and overall impairment more nearly approximate the deficiencies in most areas and inability to establish and maintain effective relationships in the criteria for a 70 percent rating rather than the total occupational and social impairment in the criteria for a 100 percent rating. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. As indicated by the cases cited above, the criteria in the general rating formula for mental disorders include both the symptoms listed as symptoms "such as" those listed, along with the overall impairment caused by these symptoms. This broad language in the criteria thus contemplates all of the symptoms even though they are not specifically listed. The Board therefore need not consider whether the Veteran's PTSD causes marked interference with employment for purposes of an extraschedular rating. There is also no indication that the PTSD has caused frequent hospitalization during the pendency of the claim or that the schedular requirements have otherwise been rendered impractical. A remand for referral of the claim for a higher initial rating for PTSD for extraschedular consideration is therefore not warranted. 38 C.F.R. § 3.321(b)(1). Finally, as the evidence reflects that the Veteran remains employed, the issue of entitlement to a TDIU has not been raised by the evidence of record. Cf. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). For the foregoing reasons, an initial rating of 70 percent, but no higher, is warranted for the Veteran's PTSD. As the preponderance of the evidence is against an initial rating higher than 70 percent, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER An initial rating of 70 percent, but no higher, for PTSD, is granted, subject to controlling regulations governing the payment of monetary awards. ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs