Citation Nr: 1752779	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO. 12-35 134	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a rating for posttraumatic stress disorder (PTSD) in excess of 30 percent from December 8, 2008, to April 12, 2017, and in excess of 50 percent from April 13, 2017.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel





INTRODUCTION

The Veteran served on active duty from February 1965 to February 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the matter currently rests in Roanoke, Virginia.  In October 2013 and January 2017, the Board remanded this appeal for further development. That has been accomplished, and the matter has been returned for further appellate consideration. Stegall v. West, 11 Vet. App. 268, 271 (1998).  

FINDINGS OF FACT

1. From December 8, 2008, to April 12, 2017, the Veteran's PTSD was manifested primarily by: stable to depressed mood; anxiety; irritability; nightmares; sleep impairment; hypervigilance; self-isolation; and occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

2. From April 13, 2017, the Veteran's PTSD was manifested primarily by: depressed mood; anxiety; suspiciousness; nightmares; circumstantial, circumlocutory, or stereotyped speech; panic attacks once a week or less; hypervigilance; exaggerated startle response; irritable behavior and angry outbursts, including unprovoked irritability with periods of violence; self-isolation; difficulty in adapting to stressful circumstances including work or a worklike setting; and social and occupational important with deficiencies in most areas.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 30 percent for PTSD from December 8, 2008, to April 12, 2017, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.126, 4.130, Part 4, Diagnostic Code 9411 (2017).

2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a rating of 70 percent, but no higher, for PTSD from April 13, 2017, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.126, 4.130, Part 4, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). In August 2010, the RO mailed the Veteran a VCAA letter detailing the evidentiary requirements of increased disability compensation claims, the evidence that the Veteran should send to VA, and VA's responsibilities to assist the Veteran. Furthermore, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). 
With regard to the duty to assist, the Veteran's pertinent VA and private treatment records have been secured. The Veteran was also afforded a VA medical examination in April 2017. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Thus, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination, has been met. 38 C.F.R. § 3.159(c)(4) (2017).

Legal Criteria & Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). 

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2017). 

The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).  
Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the 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 of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

The Veteran filed a claim for a rating in excess of 10 percent for his service-connected PTSD on August 16, 2010. During the appeal and in an October 2012 rating decision, the RO granted a rating of 30 percent for PTSD with an effective date of December 8, 2008. In July 2017, the RO issued a rating decision granting a rating of 50 percent for PTSD with an effective date of April 13, 2017 (date of receipt of medical evidence supporting the 50 percent rating). The Veteran contends that his PTSD warrants a higher disability rating for the entire period on appeal.  

The regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

A 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 

A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas (work, school family relations, judgment, thinking or mood), due to symptoms like: 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 personal appearance and hygiene; difficulty in adapting to stressful circumstances (work or work-like setting); inability to establish and maintain effective relationships. 

Finally, 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 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 (2017).

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Court's interpretation of the criteria for rating psychiatric disabilities as set out in Mauerhan. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

According to the medical record, the Veteran presented to the VA mental health clinic on December 8, 2008, with reports of irritability. See December 2008 VA mental health note. He denied having any suicidal ideations at the time. Id. He again saw a VA mental health professional in March 2010. See March 2010 VA mental health note; March 2010 VA mental health nursing note. The Veteran reported anxiety symptoms occurring up to once a day in the past month. Id. He also reported having a "fleeting sense that something is wrong" lasting less than a minute every other day. Id. In addition, he reported having mild depression and nightmares. Id. The mental health professional indicated that the Veteran's mood was stable and that he was alert, fully oriented, friendly, and cooperative. The Veteran denied having suicidal or homicidal ideations. Id.

In September 2010, the Veteran underwent a VA examination regarding the severity of his service-connected PTSD. See September 2010 Review PTSD Examination Report. During the examination, he reported severe nightmares occurring up to 2 times a week, moderate nervousness in crowds, moderate depression, moderate to severe self-isolation, moderate sleep impairment. Id. In addition, he reported that he worked as a truck driver and lost 4 to 5 days per year due to his psychiatric condition. Id. He also indicated that he generally got along well with family members and had up to two friends. Id. He also stated that he had been married 3 times. According to the examiner, the Veteran fidgeted and shook his legs continuously throughout the evaluation in a nervous manner. The examiner also found that the Veteran presented no impairment of thought process or communication, was able to maintain minimum personal hygiene, and was oriented to person, place, and time. The Veteran denied having any delusions or hallucinations. Id. The examiner concluded that the Veteran's PTSD symptoms caused an occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to PTSD. 

The Veteran presented to the mental health clinic again in September 2011. See September 2011 VA mental health note. He reported having episodes of aggression in his sleep, including pulling his wife's hair and hitting the pillow. Id. He also reported feelings of daily anger, but denied that they were violent. Id. A mental status examination found that the Veteran was alert; spoke clearly, coherently, and at a normal rate; had a euthymic mood; and did not present paranoia or overt signs of psychosis. Id. The Veteran also denied having any hallucinations or delusions. Id.

Subsequently, the Veteran returned to the mental health clinic with reports of depression, anxiety, and nightmares. See March 2012 VA mental health nurse intake note; VA mental health note. He also reported having a "grouchy" mood. Id. The Veteran denied having suicidal or homicidal ideations. Id. A July 2012 mental health clinic visit also did not note any reports of hallucinations or ideations. See July 2012 VA mental health note.

In November 2012, the Veteran attended counseling for his reported alcohol abuse. See November 2012 VA SAC individual note. A mental status examination revealed a euthymic mood; a stable affect; full orientation; coherent, logical, and goal directed thought process; and fair personal hygiene. The Veteran also denied having any hallucinations or ideations. See also August, September, October 2012 VA SAC individual notes. In February 2013, the Veteran sought residential treatment (for alcohol problems) at a detoxification unit. See February 2013 VA progress note. The Veteran denied having a depressed mood, hopelessness, helplessness, guilt, anhedonia, recurrent thoughts of death, or suicidal or homicidal ideations. Id. He was later discharged without psychotic symptoms. See February 2013 VA attending discharge note. 

In December 2013, the Veteran visited his primary care physician with reports of decreased energy. See December 2013 VA primary care physician note; December 2013 VA primary care nursing note. According to a PTSD screening, the Veteran reported nightmares, but denied symptoms of avoidance, hypervigilance, and isolation. Id. He also denied having depression. Id. However, in March 2017, the Veteran again reported feelings of depression as well as nightmares and little interest or pleasure in activities. See March 2017 VA primary care physician note.

An additional VA examination took place on April 11, 2017. See April 11, 2017 Review PTSD Disability Benefits Questionnaire. The Veteran reported that he divorced his third wife 3 years prior. Id. He also described the relationships with his children as good and reported that he had a few friends. Id. In addition, he stated that he worked as a caretaker of a friend's land, though it was an unpaid job. Id. Further, he reported experiencing nightmares and panic attacks, which he controls by stating away from crowds. Id. He stated that he copes with anxiety by self-isolating and visiting friends who "have a knack" for helping him distract his mind and control irritability. Id. In her report, the examiner noted reports of irritable behavior and angry outbursts with little or no provocation, typically expressed as verbal or physical aggression toward people or objects. The examiner also noted hypervigilance, exaggerated startle response, depressed mood, suspiciousness, depressed mood, and panic attacks that occur weekly or less. She observed circumstantial, circumlocutory, or stereotyped speech. In addition, she stated that the Veteran would have difficulty adapting to stressful circumstances, including work or a worklike setting. She also found that the Veteran's PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. Simultaneously, however, she concluded that the Veteran's PTSD caused only reduced reliability and productivity. 

Upon review of the record, the Board finds, first, that the preponderance of the evidence does not support a rating in excess of 30 percent from December 8, 2008, to April 12, 2017. Neither the Veteran's reports nor VA treatment records reflect persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or an intermittent inability to perform activities of daily living. In addition, there is no evidence that the Veteran exhibits from disorientation to place or time; or memory loss for names of close relatives, own occupation, or own name. While the Veteran reported experiencing panic attacks and depression, they did not occur continuously or near-continuously. Further, although the Veteran reported irritability and episodes of aggression prior to April 11, 2017, the episodes of aggression occurred in his sleep and were not due to impaired impulse control. See September 2011 VA mental health note. Additionally, there is no evidence of a flattened affect; impaired judgment or abstract thinking, or circumstantial, circumlocutory, or stereotyped speech prior to April 11, 2017. The Board acknowledges the Veteran's reports of mood disturbance prior to April 11, 2017. See September 2010 Review PTSD Exam. Simultaneously, however, the Board notes that the Veteran continued to work as a truck driver during that time. Moreover, the September 2010 VA examination determined that the Veteran's PTSD symptoms caused only an occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks. Accordingly, the criteria for a rating in excess of 30 percent for PTSD from December 8, 2008, to April 12, 2017, have not been met. 38 C.F.R. §§ 4.126, 4.130, Part 4, Diagnostic Code 9411.

Finally, the Board finds that the evidence is in relative equipoise as to whether the Veteran is entitled to a rating of 70 percent for his PTSD from April 13, 2017. (As previously stated herein, the report of the April 11th, 2017 contract examination was received at the RO on April 13th, 2017.)  At the April 11, 2017, VA examination, the Veteran reported that he had only had a few friends and that he had divorced his third wife. He also reported that he isolates himself to cope with anxiety. In her report, the examiner noted reports of irritable behavior and angry outbursts with little or no provocation, typically expressed as verbal or physical aggression toward people or objects. She determined that the Veteran would have difficulty adapting to stressful circumstances, including work or a worklike setting, and that his PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. At the same time, however, the examiner stated that the Veteran's PTSD only resulted in reduced reliability and productivity. The examiner also observed circumstantial, circumlocutory, or stereotyped speech. As such, there is credible evidence of PTSD symptoms establishing ratings of both 70 and 50 percent. Accordingly, with no other contemporaneous evidence of record, reasonable doubt must be resolved in the Veteran's favor, and entitlement to a rating of 70 percent for PTSD from April 13, 2017, is warranted. In so finding, the Board also finds that a rating of 100 percent for PTSD from April 13, 2017, is not warranted due the absence of 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, disorientation to place or time, and severe memory loss from April 13, 2017. 38 C.F.R. § 4.130, Part 4, Diagnostic Code 9411.

The Board has considered an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran has not asserted, and the evidence does not show, that his PTSD is inadequately contemplated by the schedular rating criteria for any period on appeal. Therefore, discussion of whether an extraschedular rating must be considered is not necessary. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

The Board also notes that it has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran's claims for increase above what is granted herein, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).







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ORDER

A rating in excess of 30 percent for PTSD from December 8, 2008, to April 12, 2017, is denied.

A rating of 70 percent, but no higher, for PTSD from April 13, 2017 is granted.




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs