Citation Nr: 1751979 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-33 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for post-traumatic stress disorder and panic disorder with agoraphobia (hereinafter, "PTSD") prior to October 27, 2011. 2. Entitlement to an evaluation in excess of 70 percent for PTSD on and after October 27, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty for training service with the Army from January 1987 to April 1987 and honorable active duty service from November 2003 to March 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This decision granted entitlement to service connection for PTSD and assigned a 30 percent disability evaluation, effective as of October 21, 2009. The Veteran timely perfected an appeal to the Board. In a June 2012 rating decision, the Veteran's disability evaluation was increased to 70 percent, effective as of October 27, 2011. As this does not represent a full grant of the benefit sought on appeal, the issue remains in appellate status. In September 2016, the Board remanded the issues on appeal for additional evidentiary development, to include obtaining outstanding medical records and a new VA examination. FINDINGS OF FACT 1. Between October 21, 2009, and October 26, 2011, the Veteran's PTSD manifested with 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. His symptoms did not rise to the level of occupational and social impairment with deficiencies in most areas. 2. Since October 27, 2011, the Veteran's PTSD has not manifested with 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; and memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2017). 2. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. § 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.129, 4.130, Diagnostic Code 9435 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Notice VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds that the September 2016 remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). (CONTINUED ON NEXT PAGE) II. Increased Ratings A. Relevant Law and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2017). Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2017). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. The General Rating Formula for Mental Disorders, including Diagnostic Code 9434, at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 10 percent rating is provided for an acquired psychiatric disorder that causes an occupational and social impairment with mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during the periods of significant stress, or, symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is provided 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 rating is warranted if it is productive of 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 rating contemplates 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. A 100 percent rating contemplates 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the 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; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). 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. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath, 1 Vet. App. at 594. 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 or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). B. Factual Background and Application The Veteran contends that he is entitled to an initial evaluation in excess of 30 percent prior to October 27, 2011, and in excess of 70 percent thereafter. (CONTINUED ON NEXT PAGE) October 21, 2009, to October 26, 2011 Between October 21, 2009 and October 26, 2011, the preponderance of the evidence of record indicates that an initial rating of 50 percent, but no higher, is warranted. In October 2009, a friend of the Veteran submitted a lay statement regarding the severity of his PTSD symptoms. He reported that the Veteran's irritability increased, and he had more outbursts of anger, as well as difficulty concentrating. The friend also stated that the Veteran had a more difficult time letting go of situations that caused him more anger and grief. The same month, the Veteran's wife submitted a lay statement similarly describing his PTSD symptoms. The wife reported that the Veteran's ability to tolerate loud noises and crowded areas had worsened since returning from active duty. He also reportedly became more protective of his wife, worrying constantly about her safety, and performing obsessive ritualistic checks of the locks on the doors of the house. She also described severe mood swings without obvious trigger. His wife stated that he no longer enjoyed everyday things, and that overall he was not the same person as he was prior to deployment. A January 2010 VA examination assessed the severity of the Veteran's PTSD. The Veteran reported feeling angry, sad, and tired most of the time. He described social withdrawal, difficulty feeling comfortable around others or trusting people, a loss of interest in most activities, and recurrent anxiety attacks. The Veteran described his wife as the best support he had ever had. He noted being increasingly vigilant and protective of her since his deployment, which the examiner noted caused tension in the marriage. He also reportedly had a good relationship with his mother. Since returning from deployment, he stated that he avoided people most of the time. He attended church on Sunday, but no longer during the week when he may be called on to share during devotions. He ate lunch alone at work, and reported being very paranoid that others were watching or judging him. The Veteran also described being unable to tolerate crowds or loud noises. He expressed a belief that his boss had singled him out for reprimand at work. The Veteran endorsed frequent irritability, and a loss of interest in his previous hobbies and activities. He did not have a history of suicide attempts or violence. He also reported frequent awakenings when he slept at night, including as due to nightmares about his deployment. The Veteran expressed obsessive and ritualistic behavior in the form of checking locks, which occurred at least 6 to 7 times every morning when leaving for work. He also endorsed frequent panic attacks, approximately 1 to 2 per day, each of which lasted about an hour. The Veteran's recent and immediate memory was mildly impaired. His PTSD caused decreased concentration and poor social interaction at work. The Veteran reported that his boss has repeatedly reprimanded him for his temper as he had argued and threatened people at work. In April 2010, a fellow service member submitted a lay statement regarding the Veteran's PTSD. He reported witnessing the Veteran experience severe difficulty with class work during training, and his depressive symptoms worsened over time. The Veteran reportedly failed a training examination three times due to these symptoms. In September 2010, another fellow service member submitted a lay statement regarding the Veteran's PTSD. He reported witnessing frequent anxiety attacks while deployed that interfered with the Veteran's ability to perform his duties. The Veteran's anxiety and stress made him ineffective in various positions while deployed. In light of the above, the Board finds that the symptoms and overall impairment caused by the Veteran's PTSD most nearly approximate the criteria for a 50 percent evaluation. The Veteran's PTSD caused hypervigilance and paranoia that strained his relationship with his wife, whom he called his best support system. He reportedly withdrew from most social engagement, and expressed a disinterest in hobbies that previously occupied each of his weekends, including fishing and hunting. He engaged in obsessive rituals that included checking that the doors were locked 6 to 7 times each morning before leaving for work. He believed that people were judging him or watching him, and thought his boss targeted him. In fact, the Veteran's irritability and anger caused repeated workplace infractions as he challenged other employees. The Veteran's supervisor reportedly reprimanded him for this conduct on more than one occasion. Additionally, the Veteran's memory impairment, anxiety and depression caused significant problems in potential future employment as he was reportedly unable to pass an examination three times while training with the Army. Finally, the Veteran experiences frequent awakenings at night, interrupting his sleep on a regular basis. In sum, the Veteran's PTSD has moderately impacted both his occupational and social activities, as well as presented a learning barrier for future employment advancements. Therefore, the Board finds that the Veteran's symptoms between October 21, 2009 and October 26, 2011, are reflected more appropriately by a 50 percent rating, as this rating is meant to reflect occupational and social impairment with reduced reliability and productivity. The preponderance of the evidence of record demonstrates that an initial rating greater than 50 percent for the period prior to October 27, 2011, is not warranted. A higher evaluation 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. 38 C.F.R. § 4.130. While the Veteran suffers from daily panic attacks, the evidence of record does not indicate that they impact his ability to function independently, appropriately, and effectively. Furthermore, his obsessive rituals did not reportedly interfere with routine activities. His psychomotor activity was unremarkable upon examination, and his affect was appropriate, though constricted. The Veteran's judgment was intact, and he did not demonstrate inappropriate behavior. His impulse control was good. As the preponderance of the evidence of record does not reflect that the symptoms and overall impairment from the Veteran's PTSD are more nearly approximated by occupational and social impairment with deficiencies in most areas, the benefit of the doubt doctrine is not for application and an initial rating higher than 50 percent rating is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. October 27, 2011, to Present Since October 27, 2011, the preponderance of the evidence of record indicates that an evaluation in excess of 70 percent is not warranted. In an October 2011 VA examination, the Veteran reported worsening symptoms of PTSD. He endorsed anxiety, panic attacks, and claustrophobia. He reported avoiding people as he feared bumping into someone. The Veteran described anxiety that occurred with and without triggers, as well as sleep difficulties. Memory and concentration, as in the previous examination, remained problematic. The examiner found moderate symptoms overall that were constant, continuous, or ongoing. The Veteran indicated that symptoms affected total daily functioning, and resulted in frequent anxiety and panic attacks, avoidance of people, and chronic sleep disturbances. His relationship with his supervisor varied, and the Veteran expressed no relationship with his coworkers. Orientation was within normal limits, and appearance and hygiene were appropriate. The Veteran's behavior was appropriate. Panic attacks were present and occurred almost continuously to affect the ability to function independently. The Veteran demonstrated signs of suspiciousness. There was no report of hallucinations, suicidal ideation, or homicidal ideation. The examiner determined that he was intermittently unable to perform activities of daily living, but could provide self-care. Frequent panic attacks interfered with his ability to function independently. Though, at the time of examination, the examiner found that he was capable of establishing and maintaining effective work and social relationships. He had difficulty understanding commands, but had no cognitive deficits that hindered him from managing his own finances. In June 2013, VA Medical Center (VAMC) treatment records indicate that the Veteran retired from service, and felt less stress after that decision. He reported feeling better emotionally, and denied profound depression or anxiety. He continued to report chronic sleep issues and occasional nightmares. In September 2013, VAMC treatment records indicate that the Veteran was stable, and oriented to person, place, time, and situation. The Veteran relayed an incident at work in which he verbally accosted a coworker for almost causing a car accident. He recognized that he overreacted at the time. He did not report suicidal or homicidal ideations. Later that month, the Veteran reported experiencing increased anxiety and insomnia. In July 2014, the Veteran relayed that work was going well, and he continued to focus on positive activities at home. In October 2014, the Veteran reported some recurrent anxiety from time to time. Insight and judgment were good. The Veteran denied suicidal and homicidal ideation, as well as hallucinations. His mood was stable. In January 2015, the Veteran reported a stable mood, and denied profound depression and mood swings. He also denied suicidal and homicidal ideation. He stated that he was getting along well with his wife and coworkers, and denied behavioral or anger outbursts. He reported enjoying work, though it sometimes became overwhelming. In September 2015, the Veteran again reported a stable mood, and denied ongoing emotional problems. He was still working, and denied problems at work. He also denied depression, mood swings, and suicidal and homicidal ideation. He continued to experience nightmares, insomnia, guilt, and anxiety. In January 2016, the Veteran reported that he was less anxious after the holidays. His mood was stable, and there were no ongoing emotional problems. There were no problems reported at work. The Veteran denied suicidal and homicidal ideation. In May 2016, the Veteran reported more anxiety and restlessness. He noted his insomnia kept him tired throughout the day. His mood was stable overall, and he denied profound depression and mood swings. The Veteran denied suicidal and homicidal ideation. In August 2016, the Veteran reported feeling stable. He denied emotional crises or behavioral issues. He had recently started going to the gym regularly, and lost weight as a result. He was sleeping better, but still experienced nightmares, insomnia, guilt and anxiety. The Veteran denied suicidal and homicidal ideation. It was recommended that he continue working full time. In light of the above, the Board finds that the manifestations of the Veteran's PTSD do not present a total occupational and social impairment. Even in the more severe assessment, the October 2011 VA examination, the Veteran is oriented, and maintains appropriate appearance and hygiene. His communication and speech were within normal limits. Examination and subsequent VAMC treatment records did not indicate a gross impairment in thought processes or communication. Examination and treatment records denied hallucinations. The Veteran's behavior was assessed as within normal limits. He was also not represented to be in persistent danger of hurting himself or other. While he was intermittently unable to perform activities of daily living, this did not apply to hygiene, and focused more on tasks around the house, including repairs, that caused significant stress and frustration. There was also no memory loss for names of close relatives, his occupation, or his own name. The Veteran additionally continued to work, and reported increasingly positive interactions with his coworkers in VAMC treatment records. In summary, when considering the Veteran's disability picture as a whole, the Board finds that the overall severity, frequency, and duration of his symptoms simply do not rise to the disability picture painted by the example symptoms listed in the criteria for a 100 percent rating or higher as they do not present a total occupational and social impairment. Rather, the Veteran's symptomatology is consistent with and adequately contemplated by a 70 percent rating. Accordingly, the Veteran's claim of entitlement to an evaluation in excess of 70 percent since October 27, 2011 is denied. ORDER 1. Entitlement to an initial evaluation of 50 percent, but no higher, for PTSD prior to October 27, 2011, is granted. 2. Entitlement to an evaluation in excess of 70 percent for PTSD on and after October 27, 2011, is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs