Citation Nr: 1752977 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-26 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 30 percent for post-traumatic stress disorder from August 5, 2014 to August 24, 2014. 2. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder from August 25, 2014. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul Bametzreider, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified in August 2014 before the undersigned. A transcript of the hearing is associated with the claims file. In February 2016 the Board denied entitlement to a rating in excess of 30 percent prior to August 5, 2014 and remanded the issue of entitlement to a rating in excess of 30 percent since August 5, 2014 for evidentiary development. The case has now been returned to the Board for further appellate action. In a May 2016 rating decision VA granted entitlement to a 70 percent rating for posttraumatic stress disorder from August 25, 2014, the date of the appellant's hearing before the undersigned. That award constitutes only a partial grant of the benefit sought on appeal; therefore, this issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT Since August 5, 2014, the Veteran's posttraumatic stress disorder has been manifested by symptoms causing occupational and social impairment, with deficiencies in most areas, but not by symptoms causing total occupational and social impairment. CONCLUSION OF LAW For the period since August 5, 2014 entitlement to an evaluation of 70 percent, but no higher, for posttraumatic stress disorder is warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board finds there has been substantial compliance with its February 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268 (1998) when the examiner made the ultimate determination required by the Board's remand.) The Veteran asserts that his service-connected posttraumatic stress disorder was more severe than represented by the 30 percent rating assigned prior to August 24, 2014, or than the 70 percent rating assigned since August 25, 2014. In a November 2010 rating decision VA granted entitlement to service connection for posttraumatic stress disorder, and assigned a 30 percent rating effective September 21, 2009. The Veteran appealed from that initial rating. 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. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. 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). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation 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. Posttraumatic stress disorder is evaluated pursuant to the General Rating Formula for Mental Disorders. A 70 percent rating is warranted when there is 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 worklike setting); or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria for a 100 percent rating are 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 of 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. Id. The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the global assessment of functioning scores and the enumerated factors listed in 38 C.F.R. § 4.130, Diagnostic Code 9411. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Id. At his August 25, 2014 Board hearing the Veteran provided testimony as to the functional impairment caused by his posttraumatic stress disorder. The Veteran reported that his posttraumatic stress disorder did not significantly impact his social life, but that it impacted his family life "a little bit." Regarding social activities, the Veteran reported that he was primarily limited due to knee problems which constrained walking. Regarding occupational impairment, the appellant stated that he had left his previous job due to knee problems. The Veteran endorsed symptoms of sleep impairment caused by recurrent distressing dreams and stated that he experienced short term memory impairment. The representative asserted that the Veteran had testified to difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, impaired abstract thinking, impaired judgement, long term memory impairment, and panic attacks. At the August 2014 hearing the appellant presented VA outpatient medical records dated August 5, 2014 which note a dysphoric mood, and an anxious affect. The examiner increased the dose of the appellant's medication and noted that he suffered from worsening sleep and posttraumatic stress symptoms. The Veteran was provided a VA examination in May 2016. The examiner stated that posttraumatic stress disorder was productive of occupational and social impairment with reduced reliability and productivity. The examiner reported symptoms of anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting and suicidal ideation. The examiner noted that the Veteran reported a history of arguing with his wife and family when feeling irritable, as well as problems with communication. The Veteran reported difficulty trusting others, but stated that he had a few friends from his former job, a good relationship with his father, and was in contact with his siblings. The Veteran and his wife were married for 40 years. The Veteran reported retiring from his job as a mail carrier in 2001. Although the Veteran reported suicidal ideation, the examiner noted no plan or intent and no evidence of homicidal ideation. VA treatment records for the pertinent period document complaints and treatment for sleep disturbances, nightmares, a heightened startle response, and intermittent depression. Such records do not document more severe symptomatology than that represented by the May 2016 VA examination. The treatment records do not reflect evidence of a gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self of 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. August 5, 2014 to August 24, 2014 The Board observes that no VA examination of record is directly relevant to the period from August 5, 2014 through August 24, 2014, during which time the Veteran's posttraumatic stress disorder was rated 30 percent disabling. The May 2016 VA examiner opined that the Veteran's posttraumatic stress disorder was productive of occupational and social impairment with reduced reliability and productivity. The examiner also noted that the Veteran demonstrated symptoms of passive suicidal ideation and difficulty in adapting to stressful circumstances, including work or a worklike setting. Such symptoms are stipulated as signaling that a 70 percent disability rating may be warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. Resolving reasonable doubt in the Veteran's favor the Board finds that a 70 percent rating is warranted for the period since August 5, 2014. Entitlement to a rating higher than 70 percent since August 5, 2014 The Board finds, however, that no rating higher than 70 percent can be assigned for the appellate term. As regards social impairment, the record reflects that the Veteran has difficulty communicating, and has a history of arguing with his wife and family. However, the Veteran is noted to have a long and ongoing marriage, a good relationship with his father, contact with his siblings, and contact with a few friends. The record therefore does not reflect that the Veteran suffers total social impairment. As regards occupational functioning, the Veteran has reported that he retired from his job as a mailman in 2001, primarily due to difficulty walking caused by his knee. Nonetheless, the Veteran apparently continued to maintain some form of employment during the appellate term. For example, an August 2015 VA treatment record reported that the Veteran worked a few hours three to four days per week. While the May 2016 VA examiner observed that the Veteran demonstrated difficulty adapting to work or a worklike setting, the examiner declined to find that such symptoms were productive of total occupational or social impairment. While the record reveals several reports of passive suicidal ideation, the Veteran has never expressed intent to act on any such ideation. In this regard, the record does not indicate any suicide attempts, and no evidence has indicated that the Veteran has expressed a plan to commit suicide. There is no evidence that the Veteran's posttraumatic stress disorder was productive of violent behavior. During the appellate term, the Veteran's posttraumatic stress disorder symptomatology has included anxiety, chronic sleep impairment due to distressing dreams, mild memory loss, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and passive suicidal ideation. Such symptoms have not been described, either by the Veteran or by any medical professional as so severe as to produce total functional or social impairment. Indeed, the Board observes that the preponderance of the medical evidence of record is against finding that the Veteran's posttraumatic stress disorder is productive of total occupational or social impairment. While the Board acknowledges the Veteran's competence to testify to events and symptoms as he has experienced them, the question of the degree to which specific social and occupational impairments are attributable to posttraumatic stress disorder symptomatology is a question which is complex in nature. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board attributes great probative weight to the opinion of the May 2016 VA examiner that the Veteran's posttraumatic stress disorder was not productive of total social or occupational impairment. Thus, the Veteran's posttraumatic stress disorder symptoms are adequately contemplated by the 70 percent rating assigned herein. For the foregoing reasons, the Board finds that a 70 percent rating, but no higher, for posttraumatic stress disorder, is warranted for the period on appeal. ORDER Entitlement to a 70 percent evaluation, but no higher, for posttraumatic stress disorder, effective August 5, 2014 is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs