Citation Nr: 1735489 Decision Date: 08/25/17 Archive Date: 09/06/17 DOCKET NO. 11-23-982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to June 26, 2015. 2. Entitlement to a rating evaluation in excess of 50 percent for PTSD, from June 26, 2015. REPRESENTATION Appellant represented by: Andrew R. Rutz, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Negron, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection for PTSD, evaluated as 0 percent from May 11, 2005, and 30 percent from August 17, 2009. The Board granted a 30 percent for the period prior to August 17, 2009 and remanded for the period after in a March 2015 decision. The RO subsequently granted a rating of 30 percent from May 11, 2005 in a May 2015 rating decision, and in an April 2016 rating decision, an evaluation of 50 percent was granted from June 26, 2015. The Veteran was provided a hearing in January 2015 and a transcript of the hearing is of record. This hearing was before a judge who is now unavailable to issue a decision on the appeal. In May 2017 correspondence, the Veteran was given the opportunity to request another hearing and notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond, and therefore, the Board will proceed. FINDINGS OF FACT 1. Prior to June 26, 2015, the Veteran's PTSD manifested as impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, depression, chronic sleep impairment, hypervigilance, suspiciousness, social isolation, and anger. 2. From June 26, 2015, the evidence of record shows the Veteran's PTSD has not manifested more than depression, chronic sleep impairment, hypervigilance, suspiciousness, social isolation, anger, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial 50 percent rating, but no higher, for PTSD during the period prior to June 26, 2015 are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2016). 2. The criteria for a rating evaluation in excess of 50 percent for PTSD from June 26, 2015 are not met. 38 U.S.C.A. §§ 1155, 5107. 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the 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. 38 C.F.R. § 4.126 (a) (2016). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Additionally, when 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 a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Factual Analysis The Veteran's service-connected PTSD is currently rated under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411 (2016). Under the applicable rating criteria, a 30 percent evaluation is warranted for occupational 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), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent disability rating is warranted when there is 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. Id. A 70 percent disability 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); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability rating is warranted when there is 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. Further, the General Rating Formula provides that all psychiatric disorders are to be rated together as one disability, and provides only one General Rating Formula for rating service-connected psychiatric disorders. See also 38 C.F.R. § 3.310 (2016) (directing that the secondary condition is to be considered as part of the original condition). Additionally, the Global Assessment of Functioning (GAF) score is also considered. GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 61 to 70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflects moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, (e.g., depressed man avoids friends, neglects family, and is unable to work). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). Here, the Veteran is currently evaluated as 50 percent disabling from June 26, 2015, and as 30 percent from May 11, 2005. In a December 2005 VA examination, after the Veteran's initial claim, the Veteran reported having a successful occupational career until he suffered a back injury, no suicide attempts or assaultiveness, and that he was able to independently care for himself with no displays of inappropriate behavior. The Veteran also reported a high degree of anger at times with thoughts of killing people. He reported that he had been married twice and that he currently lived with his youngest daughter. He did not associate with his other two children. He stated that he had been in a relationship with a girlfriend for 5 years, but that she had recently separated from him. He asserted that he was planning on getting another girlfriend, but that it was hard when he didn't have a lot of money or his own house. The Veteran also reported going to church regularly. He indicated that he helped his daughter do household chores and that he was also active in the care of his mother, who was dying from cancer. The Veteran was fully oriented with average memory and concentration. There was no evidence of speech abnormalities, hallucinations, delusions, disorders of thought or communication, impulse control, suicidal or homicidal thoughts, sleep impairment, panic attacks, or obsessive or ritualistic behaviors. The Veteran, however, did display irritability, signs of depression, social impairment in not being able to get along with other people, and social isolation, with difficulty getting along with others. The examiner determined that the Veteran's symptoms appeared to be of mild to moderate intensity on an ongoing basis. In August 2009, the Veteran received another VA examination. The examination showed the Veteran's symptoms caused significant distress and created impairment in social, occupational, psychosocial, and other important areas of functioning. The examiner noted letters from the Veteran's ex-wife stating that after he returned from Vietnam he was very paranoid, got angry very easily, and often awoke from his sleep in a panic. He would sometimes be awake all night outside, guarding the house with a gun or weapons. The examiner further noted a letter from the Veteran's daughter which stated she was the only one of his children that he spoke to and that even so, the Veteran does not completely trust her. She further stated that the Veteran isolated himself, becomes easily irritated, and was very suspicious of people, paranoid, and overly alert of his surroundings. She also noted that he had no close friends, had restless sleep with bad nightmares about Vietnam, became angry very easily, and was a cold person. The examiner then noted that the Veteran was able to hold a career as a machinist for 22 years before the company moved and then worked as a dye maker for five years before his back injury. The Veteran told the examiner that he used to have a girlfriend but was no longer in a relationship because he'd rather do things alone. He further stated that he enjoyed little contact with people but did enjoy hobbies such as mowing the yard and walking his dogs (six times a day). The Veteran appeared to be well groomed, made good eye-contact, and appeared jovial. The Veteran did admit to having suicidal thoughts a few days prior to the examination due to his frustration with living with his daughter. He showed no indication of homicidal thoughts but did admit to getting angry while driving. The examination also showed the Veteran suffered from social isolation, severe distrust of others, sleep disruption from nightmares four times a week, and had few enjoyments in life. The Veteran also reported that he felt sad much of the time and felt like crying but was unable to. He also stated that he had thoughts of killing himself, but would not carry them out. He stated that he had difficulty with concentration and was irritable all the time. The Veteran was also provided a GAF score of 59, which applies to moderate symptoms. The examiner found that he had occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to signs and symptoms, but generally satisfactory functioning. In January 2015, the Veteran was seen at the VA Indianapolis medical center for a neurology consultation. The physician who assessed the Veteran stated he had underlying mild cognitive impairment/progressive dementia. The Veteran appeared alert, calm, and fairly lucid. He also mentioned his excitement in going to see his five girlfriends in Fort Wayne. In June 2015, the Veteran was provided another VA examination. The examiner diagnosed the Veteran with PTSD and a cognitive disorder. The Veteran's GAF score was 60 overall, which is at the high end of moderate symptoms. The examiner was able to distinguish the symptoms attributable to cognitive disorder from the symptoms attributable to PTSD. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner stated that the Veteran lived a fairly isolated life by choice, which was likely associated with PTSD-related avoidance, but when he interacted with people, he appeared friendly and interactive. During the examination the Veteran was noted to be living alone. He stated he did not have people over because "they steal." He further stated that he was not in a romantic relationship because he felt "they take advantage of you" and that he had no friendships but sees his daughter off and on. He also stated that he was sad and depressed due to not being able to have sex. The examination additionally showed the Veteran suffered from hypervigilance, exaggerated startle response, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining work and social relationships. The Veteran also suffered from avoidance of distressing memories, diminished interest in significant activities and feelings of detachment from others. The examiner further noted that the Veteran suffered from mild memory loss such as forgetting names, directions, and recent events. However, the Veteran did not suffer from suicidal or homicidal ideation. The examiner noted that the symptoms of mild memory loss and tangential speech were due to the cognitive disorder, and also found that if the Veteran were working, his cognitive disorder would cause impairment in a work setting due to impaired memory and concentration. The examiner found that the Veteran's PTSD likely did impact his current social functioning to a mild to moderate extent in that collateral statements described him as more social prior to service and now he is less so. However, the Veteran was noted to describe no emotional distress at this time associated with this. The examiner observed that this was in contrast to the Veteran's other lay statements in the claims file in which he stated that he had difficulty interacting with people and had problems with this in the work setting when he was employed. The Veteran reported that he had not worked since 1999 and that the main reason he had stopped working was a back injury. After consideration of the medical and lay evidence, the Board finds that the evaluation of a 50 percent rating is appropriate for the entire appeal period. Therefore, resolving all reasonable doubt in favor of the Veteran, a 50 percent rating, but no higher, is warranted for the period prior to June 26, 2015. However, a rating in excess of 50 percent is not warranted for the period since June 26, 2015, or for the entire period on appeal. As mentioned above, under 38 .F.R. § 4.130, DC 9411, a rating of 70 percent requires 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); inability to establish and maintain effective relationships. A 100 percent rating requires 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board finds that the evidence of record does not support a rating of 70 percent. The Board acknowledges that the Veteran had mentioned suicidal ideation at his August 2009 VA examination. However, the Veteran also indicated that he would not carry out thoughts of killing himself, and he did not endorse suicidal ideation throughout the rest of the appeal period. Further, the evidence consistently shows that the Veteran has not experienced obsessional rituals which interfere with routine activities, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, impaired impulse control, or near-continuous panic affecting the ability to function independently, appropriately and effectively. While the Veteran has problems relating to others, he has not demonstrated a complete inability to establish and maintain effective relationships, as he still maintains contact with his daughter. While the June 2015 examiner found that the Veteran had some tangential speech, this was determined to be due to his cognitive disorder and not his service-connected PTSD. Examiners further noted the Veteran showed no risk taking behaviors or impulsivity and appeared to take care of himself well. The Veteran even appeared to be pleasant during his examinations. Therefore, given the above, the Board does not find that the overall frequency, severity, and duration of the Veteran's PTSD rises to the level of severity as needed for a 70 percent rating. The Board also finds that the evidence of record does not support a rating of 100 percent. While the Veteran prefers being alone and has problems relating to others, he is not totally socially impaired, as he still maintains contact with his daughter. Additionally, the Veteran has reiterated throughout the appeal that he had maintained a successful career until he had to retire due to his back injury. There is no evidence that the Veteran's PTSD caused total occupational impairment. Indeed, the June 2015 examiner found that the Veteran's cognitive disorder would impair him occupationally, and not his PTSD. The Board additionally recognizes the statements by the Veteran's daughter and ex-wife regarding the Veteran's paranoid behavior and easy irritability. However, these occurrences do not appear to have grossly impaired the Veteran in his thought process or caused grossly inappropriate or consistently aggressive behavior. The Veteran actually never had any documented incidents of grossly inappropriate behavior and also appeared to be able to complete day to day activities, specifically commenting on his pleasure for mowing the lawn and walking his dog. The evidence also does not show delusions hallucinations, or disorientation to time or place. While the Veteran had some memory loss and tangential speech, the June 2015 examiner attributed these symptoms to his cognitive disorder instead of his PTSD. Finally, the Board acknowledges that the Veteran reported a high degree of anger with thoughts of killing people at his December 2005 VA examination, and that he had suicidal ideation at his August 2009 VA examination. However, he did not endorse any suicidal or homicidal ideation throughout the rest of the appeal period, and he had never acted on his suicidal or homicidal ideation. Therefore, the Board finds that this does not rise to the level of the Veteran being a persistent danger of hurting self or others, as would be required under the criteria for a 100 percent rating. The Board also acknowledges the Veteran's assertions that he is entitled to a higher rating because his symptoms have gotten worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding the severity of his symptoms requires medical expertise that the Veteran has not demonstrated. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Accordingly, an increased 50 percent rating for the period prior to June 26, 2015 is warranted, but a rating in excess of 50 percent since June 26, 2015 is not warranted. The benefit of the doubt rule has been considered in reaching this decision. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial 50 percent evaluation, but no higher, for PTSD prior to June 26, 2015 is granted. Entitlement to a rating evaluation in excess of 50 percent for PTSD, from June 26, 2015 is denied. ____________________________________________ Jennifer Hwa Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs