Citation Nr: 1722348 Decision Date: 06/15/17 Archive Date: 06/29/17 DOCKET NO. 10-15 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial increased rating for posttraumatic stress disorder, rated as 30 percent disabling prior to December 23, 2011; 50 percent disabling from December 23, 2011, to March 13, 2013; and 70 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1967 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Jurisdiction is currently held by the RO in Seattle, Washington. In February 2012, the RO granted an increased 50 percent evaluation for the service-connected posttraumatic stress disorder (PTSD) effective December 23, 2011. The evaluation for PTSD was again increased in February 2014, when the Appeals Management Center assigned a 70 percent evaluation effective March 14, 2013. The Veteran testified at a November 2011 hearing before a decision review officer at the RO. He also testified at a Board hearing in March 2013. Transcripts of these hearings have been associated with the claims file. This matter was previously before the Board in October 2013. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to March 14, 2013, the Veteran's PTSD most nearly approximated occupational and social impairment with reduced reliability and productivity. 2. Beginning March 14, 2013, the Veteran's PTSD most nearly approximates deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood without total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent for PTSD prior to March 14, 2013, are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD from March 14, 2013, are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Originally, a 30 percent evaluation for PTSD was assigned effective January 10, 2008. The Veteran filed an August 2009 notice of disagreement (NOD) appealing this decision. In February 2012, the evaluation was increased to 50 percent, effective December 23, 2011. The evaluation was again increased in February 2014, when a 70 percent rating was assigned effective March 14, 2013. The Veteran contends that a higher rating is warranted for his PTSD as his symptoms are more severe than what is contemplated by the current evaluations. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), 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. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases where, as here, the question for consideration is the propriety of the initial disability rating assigned, however, an evaluation of the medical evidence since the grant of service connection and a consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A staged rating compensates the veteran for variations in the disability's severity since the effective date of his award. The Veteran's PTSD is currently evaluated under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 30 percent rating is warranted when the mental disorder is manifested by "[o]ccupational 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)." This level of impairment may be due symptoms such as "depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events)." Id. A 50 percent rating is warranted for "[o]ccupational and social impairment with reduced reliability and productivity" which may be 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for "[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood." Id. This impairment may be due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is warranted for "[t]otal occupational and social impairment," which may be due to symptoms such 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. 30 Percent Rating Prior to December 23, 2011 The first period at issue is the 30 percent evaluation effective prior to December 23, 2011. The Board finds that the Veteran's PTSD has manifested symptoms ranging from mild to moderate throughout this period and most nearly approximates an increased 50 percent disability rating. Initially, the Board notes that the Veteran did not exhibit many of the symptoms specifically contemplated by a 50 percent evaluation. Treatment records from the VA Medical Center (VAMC) and the February 2008 VA contract examination documented consistent complaints of nightmares and sleep disturbance; panic attacks one to three times a week; anger and irritability problems; intrusive thoughts; depressed mood; and mild memory and concentration impairment. A December 2007 statement from a friend described problems with depression, nightmares, flashbacks, anger, and startling easily. Similarly, the Veteran reported in a June 2008 statement that he experienced frequent nightmares regarding his service in the Republic of Vietnam. These symptoms are contemplated by the currently assigned 30 percent evaluation. Although many of the Veteran's PTSD symptoms are specifically listed in the criteria associated with a 30 percent evaluation, the Board finds that the Veteran manifested symptoms of similar severity, frequency, and duration to those contemplated by an increased 50 percent rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). A 50 percent rating is warranted for symptoms resulting in "reduced reliability and productivity" such as panic attacks more than once a week, flattened affect, disturbances in motivation and mood, abnormal thinking and judgment, speech impairment, and difficulty establishing and maintaining effective work and social relationships. The medical evidence contained consistent findings of panic attacks one to three times a week, intrusive thoughts, and depressed and anxious mood, although the Veteran's thinking and judgment remained normal throughout the claims period. The Veteran's nightmares in the period prior to December 23, 2011 varied in frequency and intensity, as documented in VAMC treatment records. Reported nightmares ranged from nightly occurences documented in a January 2008 and June 2009 to nightmare-related awakenings two to three times a week in November 2010. In contrast, a May 2011 VAMC record noted that the Veteran had been free of combat-themed nightmares for multiple months at the time of the appointment. The record indicated some difficulty in social and occupational functioning. Although the February 2008 VA contract examination classified the Veteran with a level of functioning consistent with a 30 percent rating, other records showed a greater level of difficulty. The Veteran reported isolating himself and avoiding situations where he felt unsafe (such as crowds or traffic) in February 2008 and July 2011 VAMC records, although he also endorsed going to stores and restaurants in July 2009 and October 2011 VAMC records. A February 2008 VAMC record described the Veteran engaging in hobbies such as flying vintage aircraft, repairing and racing classic cars, and working as crew chief for a local auto racing team; it also stated that he repaired classic cars for a wealthy collector. An October 2009 VAMC record noted that the Veteran "continues to spend many hours a week working for another car collector." The Veteran also reported that he had a good relationship with his wife of more than forty years and enjoyed a relationship with his daughter and grandchildren. The treatment records documented summers and holidays spent with family. The Veteran's maintenance of part-time employment, variable ability to go out in public, positive familial relationships, and engagement in hobbies (including working as crew chief of a racing team), indicated a level of occupational and social functioning somewhere between the criteria for a 30 percent and 50 percent rating. Thus, while the Veteran manifested more of the specific symptoms listed in the criteria associated with a 30 percent rating, the frequency and severity of those symptoms as well as his moderate difficulty in social and occupational functioning are indicative of PTSD that is more severe than considered by a 30 percent rating. Accordingly, the Board finds that the Veteran's symptoms prior to December 23, 2011 more nearly approximate a 50 percent evaluation under the general rating formula. Vazquez-Claudio, 713 F.3d at 117; see also Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (symptoms listed in the General Rating Formula for Mental Disorders "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"). 50 Percent Rating: December 23, 2011, to March 13, 2013 The next period at issue is the 50 percent rating assigned from December 23, 2011, to March 13, 2014. After reviewing the evidence, the Board finds that a rating of 50 percent is warranted for the Veteran's PTSD during this period. The record demonstrated many of the symptoms specifically contemplated by the 50 percent evaluation, including disturbances of mood, flattened affect, difficulty establishing and maintaining relationships, and anxiety attacks. It also identified more general symptoms of PTSD, including nightmares, irritability, anxiety, intrusive thoughts, and hypervigilance. A December 2011 VA examination noted that the Veteran was limited in "reliability and productivity both in occupational and social interactions" by his PTSD symptoms, citing the Veteran's part-time work (three days a week) and limited social interactions due to feeling uncomfortable in large or unfamiliar social settings. This examination did note, however, that the Veteran reported a meaningful relationship with his wife and interacted socially with friends in his home. A February 2012 VAMC record reported that the Veteran had worked more than 70 hours in the last week. The December 2011 VA examination also listed symptoms such as daily intrusive thoughts (which lasted from five minutes to six hours, during which the Veteran "fe[lt] significant symptoms of anxiety, apprehension, hypervigilance"); avoidance of conversations or events that could recall past trauma; despression; restricted affect; sleep disturbance and nightmares; and lack of positive expectation for future events. The VA examiner described these symptoms as "moderately severe to severe." At a January 2012 VAMC appointment, the Veteran reported doing "pretty well" with continued sleep disturbance and occasional low-intensity distressing dreams. In July 2012, the Veteran reported strongly re-experiencing trauma triggered by the 4th of July and a thunderstorm. He also reported isolating more in his shop or by working. A February 2013 VAMC record noted elevated PTSD and depression, including intrusive thoughts. Considering the Veteran's symptoms, their severity, and their effects on social and occupational functioning, the Board finds the Veteran's PTSD is best evaluated as 50-percent disabling throughout the period at issue. The Board has further considered whether the Veteran's PTSD warranted a 70 percent rating for both periods previously discussed (i.e. the entire period prior to March 14, 2013) but finds that it does not. The criteria for a 70 percent rating require deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). The Veteran's PTSD impacted his mood and caused isolation affecting his ability to form and maintain relationships with others. However, the degree and severity of his occupational and social impairment were such that he maintained a relatively high level of functioning: part-time employment, relationships with his immediate family, and social interactions in his home. The Veteran's judgment and thinking were consistently normal throughout the period; he did not manifest suicidal ideation, obsessional rituals, problems with speech, or near-continuous panic or depression affecting his ability to function. Accordingly, the Board finds that a rating in excess of 50 percent is not warranted during period prior to March 14, 2013. 70 Percent Rating: Effective March 14, 2013 Although a rating in excess of 50 percent is not appropriate prior to March 14, 2013, a 70 percent rating is assigned from that date forward. At the March 2013 hearing, the Veteran testified that his condition has worsened, describing specific symptoms such as fragmented sleep, isolating himself at his employment, intrusive thoughts, and effects on his sexual relationship with his wife. A November 2013 VAMC record documented suicidal ideation and activity (taking out a handgun and contemplating suicide). A December 2013 VA examination noted the prior suicidal ideation but reported no suicidal ideation at that time. The examination stated that the Veteran's condition caused "deficiencies in most areas of social, occupational, and family capabilities" and outlined symptoms of depressed mood; anhedonia; anxiety; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and inability to establish and maintain effective relationships. Thus, a 70 percent evaluation is warranted. The Board has considered whether a total schedular rating is appropriate for the Veteran's PTSD, but finds that the service-connected disability has not most nearly approximated the criteria for a 100 percent rating. A 100 percent rating is warranted if the service-connected PTSD causes total occupational and social impairment, regardless of whether the Veteran has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet. App. at 442-43; see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In this case, the Veteran has not demonstrated total occupational and social impairment. Although the Veteran manifested occupational impairment due to PTSD, this was not total occupational impairment. As outlined above, prior to March 14, 2013, the Veteran's PTSD symptoms warranted a 50 percent disability rating, less than the singular 60 percent necessary to support a total disability rating due to individual employability resulting from service-connected disability (TDIU). 38 C.F.R. § 4.16. Furthermore, during that time the Veteran worked part-time as a mechanic for a private car collector from the beginning of the claims period until August 15, 2013. As reported by his last employer, [REDACTED], the Veteran worked 30 to 40 hours a week from July 2010 to August 2013. He missed 5 months of work in the twelve months preceding his departure. The Veteran submitted four applications for TDIU with conflicting information regarding the start date of his employment at [REDACTED], his annual income, the hours he worked, and his monthly income. After reviewing this information as well as [REDACTED] employer information, the Board finds that the Veteran worked 30 to 40 hours a week, earning at least $1400 a month from August 2008 to August 2013. The hours worked were noted in the [REDACTED] employer information as well as the January and February 2016 TDIU applications. The monthly earnings figures were consistent with the $26,900 and $10,760 he reported earning in 2012 and 2013, respectively, in a February 2016 TDIU application. Although the [REDACTED] form listed the Veteran's income within the last 12 months of employment as $10,760, the Board gives greater weight to the Veteran's report, as it details income from 2012 and 2013. The [REDACTED] form also documented employment beginning July 2010, whereas the Veteran reported starting his employment there in August 2008 in the January and February 2014 TDIU applications. The medical records documented the Veteran working for some private car collector in February 2008 and October 2009, as noted above; thus, the Board finds the Veteran was employed as a mechanic for a private collector from at least August 2008, with an income of at least $1400 a month. A monthly income of at least $1400 meets the poverty threshold for one person as established by the Bureau of the Census, and work for a private unrelated individual is not work in a protected environment. Accordingly, the Veteran was employed in a substantially gainful occupation during that period. In a January 2017 decision, the RO granted entitlement to TDIU effective March 16, 2013. However, the Board notes that the standard used for an award of TDIU and a total rating for PTSD are different. A 100 percent rating for PTSD requires total occupational and social impairment. Although the Veteran may have been unable to secure or maintain employment during this period, it does not follow that he was totally impaired due to PTSD. The [REDACTED] employment form stated that the Veteran's employment was terminated because of problems with concentration and interacting with coworkers and customers. The Veteran continued to work on cars even after being granted TDIU, however, as documented in September and October 2013 VAMC treatment notes; he also indicated at the March 2013 hearing and January 2016 TDIU application that he could work in situations in which he did not have to interact with or be interrupted by other people. An October 2014 VA medical opinion specifically addressed the question of whether the Veteran's PTSD prohibited employment and opined that he was still capable of maintaining employment, citing to VA examinations before and after the Veteran stopped working in which he had the same level of symptoms. Likewise, the December 2013 VA examination, which took place after the August 2013 termination of employment, did not indicate total occupational and social impairment, finding instead occupational and social impairment with deficiencies in "most" areas. In addition, the Veteran has remained married to his wife for over 40 years and maintains a close relationship with his daughter and grandchildren, to include working on cars with his grandson. The Board therefore finds that the preponderance of the evidence is against a finding that the severity of the Veteran's symptoms are contemplated by a 100 percent rating as his PTSD has not approximated total occupational or social impairment at any time during the relevant claims period. 38 C.F.R. §§ 4.7, 4.21. Finally, the Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a total schedular rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Duties to Notify and Assist VA has met its statutory and regulatory duty to notify in a January 2008 letter. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5107; 38 C.F.R. §§ 3.159(b). Beyond the duty to notify, VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4), 3.326. VA has obtained referenced VA records and provided multiple VA examinations that reviewed the evidence of record and included interviews with the Veteran. VA also procured a VA medical opinion regarding PTSD and employability that considered the complete record and cited appropriate evidence to support its findings. Moreover, the AOJ complied with previous remand instructions, including obtaining additional VA treatment records and an additional VA examination. The Board therefore finds that VA met its duty to assist the Veteran. ORDER Entitlement to an initial rating of 50 percent, but not higher, for PTSD prior to March 14, 2013 is granted. Entitlement to a rating in excess of 70 percent for PTSD from March 14, 2013 is denied ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs