Citation Nr: 1751375	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO. 14-06 348	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Jiggetts, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 2007 to July 2011 in the United States Marine Corps. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for PTSD and assigned a 50 percent rating effective July 10, 2011. 


FINDING OF FACT

Since July 10, 2011, the Veteran's PTSD has been manifested by symptoms of the type and extent, frequency, and/or severity (as appropriate) that are indicative of no more than occupational and social impairment with reduced reliability and productivity.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Board finds that the VA's duty to notify was satisfied by letter dated in March 2013. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Board also finds that the VA's duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA obtained examination with respect to the claim decided herein in March 2013. The Board finds the examination to be adequate for rating purposes, as the examiner reviewed the file and addressed the Veteran's symptoms. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

Rating in Excess of 50 Percent for PTSD

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2016). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2016). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2016). Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In this case, the Veteran claims entitlement to a rating in excess of 50 percent for PTSD. PTSD is rated using the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). Under the General Rating Formula, a 50 percent evaluation will be assigned with evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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; and difficulty in establishing and maintaining 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 ideations; 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 the veteran's 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 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 the 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. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders (2016).

Here, a VA examination was conducted in March 2013. The examiner noted that the Veteran presented with symptoms including depressed mood, anxiety, chronic sleep impairment; mild memory loss, such as forgetting names, direction or recent events; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; and persistent delusions or hallucinations. The examiner diagnosed the Veteran with PTSD, and opined that his condition caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self care and conversation (consistent with a 30 percent rating). However, the examiner also noted that the Veteran had symptoms suggestive of a rating higher than 30 percent, including suicidal thoughts; obsessive behaviors and rituals (without specifically noting these interfered with routine activities); and unprovoked irritability, but specifically noting these incidents were without periods of violence ("Veteran ... does yell and threaten but does not throw often and has never hit another person"). It was also noted that the Veteran is married with a daughter, continues to live with his wife, gets along with his brother fairly well, and is employed as a security guard at two different places. The examiner did not find that the Veteran's PTSD caused total occupational and social impairment (the basis for an 100 percent rating); or, that the Veteran's PTSD caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood (the basis for a 70 percent rating). 

Service treatment records reflect the Veteran was assessed and treated for depression in July 2008; and for an adjustment disorder in August 2008, with symptoms that included depressed mood, initial and intermittent insomnia, difficulty concentrating, decreased appetite, increased anxiety/worry, and recent thoughts of suicide although he denied specific plan or intent. The Veteran's separation examination noted he had been treated for a mental condition. Post-service records reflect that the Veteran was seen in January 2013 by a VA therapist, who noted the Veteran's ongoing anxiety, nightmares, and anger but indicated that he had not recently experienced suicidal ideation. 

A review of the March 2013 VA examination establishes that the Veteran's symptoms have been consistent throughout the appellate period. In addition, the evidence makes clear that most of the Veteran's symptoms have been similar in severity, frequency, and duration throughout the entire period at issue. See Vasquez-Claudio v Shineski, 713 F.3d 112, 116-17 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Based upon the March 2013 VA examination, the Board finds that the Veteran's symptoms are most substantially similar to those enumerated in the 50 percent rating for the entire period at issue. The pertinent medical evidence shows that the Veteran's psychiatric symptomatology has included some occupational impairment due to disturbances of motivation and mood, anger, anxiety, and difficulty maintaining effective work relationships, as the Veteran reported unprovoked irritability and self-isolation. Furthermore, while the Veteran has maintained a good relationship with his spouse, child, and brother, he was found to have minimal social interaction outside of these relationships. Collectively, those symptoms are indicative of occupational and social impairment with difficulty in establishing and maintaining effective work and social relationships, warranting a 50 percent rating.

The Board finds that a rating of 70 percent is not appropriate in this case at any point during the appeal period. This is so because the record does not reflect a time when the Veteran exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 70 percent rating, such as suicidal ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Here, the Veteran has consistently maintained a full-time job and a relationship with his wife and daughter, as well as with his brother. Therefore, the Board finds that he does not have deficiencies in family relations. In addition, deficiency in judgment is not shown. In sum, the Board finds that the psychiatric symptoms shown do not support the assignment of a 70 percent rating.

The Board finds that a rating of 100 percent is not appropriate in this case at any point during the appeal period. This is so because the record does not reflect that, at any time during the appeal period, the Veteran has exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 100 percent rating, such as gross impairment in thought process 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; or memory loss for names of close relatives, own occupation, or own name. Thus, a 100 percent rating is not warranted for this Veteran's PTSD at any point during the appeal period.

In conclusion, the Board finds that, for the relevant period on appeal, the Veteran's PTSD symptoms demonstrated occupational and social impairment with reduced reliability and productivity. Therefore, a rating in excess of 50 percent for PTSD is not warranted at any time during the appeal period. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an initial rating in excess of 50 percent for PTSD is denied.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs