Citation Nr: 1753220 Decision Date: 11/20/17 Archive Date: 12/01/17 DOCKET NO. 11-29 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating in excess of 50 percent prior to September 24, 2013 and in excess of 70 percent from September 24, 2013 to October 5, 2015 for posttraumatic stress disorder (PTSD). [The issue of entitlement to service connection for sleep apnea will be addressed in a separate Board decision under a different docket number.] REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1964 to March 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. During the course of the appeal, the claims file was transferred to the RO in Atlanta, Georgia. In a September 2011 statement of the case (SOC), the RO assigned the service-connected PTSD a 50 percent disability rating effective from June 27, 2006. In September 2013, the Veteran testified at a hearing in Washington, DC before the undersigned regarding the service-connected PTSD. In April 2014, the Board remanded the issue for a higher rating for service-connected PTSD for additional evidentiary development and has been returned to the Board for appellate review. Since issuance of the August 2014 supplemental statement of the case, additional evidence relevant to the claim on appeal has been obtained and associated with the record, which the Veteran waived initial Agency of Original Jurisdiction (AOJ) review in March 2017. In May 2017, the Veteran testified at a hearing in Washington, DC before another Veterans Law Judge regarding the issue of entitlement to service connection for sleep apnea. This issue was also certified to the Board in May 2017 and will be addressed in a separate Board decision under a different docket number in docket order. See 38 U.S.C.A. § 7107(a) (2017). FINDINGS OF FACT 1. From June 27, 2006 to September 23, 2013, the Veteran's service-connected PTSD was not manifested by occupational and social impairment with deficiencies in most areas. 2. From September 24, 2013 to October 5, 2015, the Veteran's service-connected PTSD was not manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 50 percent prior to September 24, 2013 and in excess of 70 percent from September 24, 2013 to October 5, 2015 for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION As service connection, an initial rating, and an effective date have been assigned for PTSD, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Neither the Veteran nor his representative have raised any other issues with the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When entitlement to compensation has been established and a higher initial evaluation is at issue, such as for the service-connected PTSD in this case, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of a veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.). The Veteran filed his initial claim requesting service connection for PTSD on June 27, 2006. In the May 2009 VA rating decision, service connection for PTSD was granted because the disability was deemed to be directly related to his military service. The Veteran was assigned a noncompensable evaluation for the entire appeal period effective from June 27, 2006. See 38 C.F.R. § 4.130, Diagnostic Code 9411. During the course of the appeal, a 50 percent disability rating was assigned effective for the entire appeal period effective from June 27, 2006 in a September 2011 SOC, a 70 percent disability rating was assigned effective from September 24, 2013 in an august 2014 VA rating decision, and a 100 percent disability rating was assigned effective from October 6, 2015 in a December 2015 VA rating decision. Since the 50 and 70 percent disability ratings are not the maximum ratings available prior to September 24, 2013 or from September 24, 2013 to October 5, 2015, the issue is listed on the title page accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the Board considers whether an initial rating in excess of 50 percent from June 27, 2006 to September 23, 2013 and in excess of 70 percent from September 24, 2013 to October 5, 2015 is warranted for PTSD in this case. Pursuant to the General Rating Formula for Mental Disorders, 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 per 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A higher rating of 70 percent 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); or an inability to establish and maintain effective relationships. Id. A rating of 100 percent, the maximum available, is assigned 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; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The nomenclature employed in the portion of VA's rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. VA implemented usage of the DSM-5, effective August 4, 2014; however, the VA Secretary has determined that DSM-5 does not apply to claims certified to the Board prior to August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As this case was initially certified to the Board in February 2013, the DSM-5 is not for application in this case. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). From June 27, 2006 to September 23, 2013 Review of VA psychiatric treatment records from June 27, 2006 to September 23, 2013 document the following psychiatric symptomatology. At a November 2006 private psychological evaluation, the Veteran reported difficulties with anxiety, isolation, nervousness, low frustration tolerance, poor sleep, extreme isolation, and intrusive memories of his active service. He noted employment since separation from service as a banker, medical sales representative, and real estate broker. The Veteran described having a few friends and being married for eight and a half years but has difficulty feeling close to her and does not confide in her his distress. Upon clinical evaluation, Dr. W. S. observed the Veteran was well-groomed, articulate, fully oriented, nervous, and softly spoken, and noted the Veteran experienced daily intrusive memories of trauma, avoidance symptoms, and extreme symptoms of hyperarousal. Following the clinical evaluation and review of the Veteran's service treatment records, Dr. W. S. rendered a diagnosis of severe chronic PTSD, assigned a GAF score of 39, and concluded, in part, the following: [The Veteran's] social isolation and emotional numbing make it difficult for him to seek support that might be beneficial and offer a barrier to participation in treatment. However, [t]he Veteran's ability to function in daily life is likely to continue [to] decline without intervention. At a February 2008 VA examination through QTC Medical Services, the Veteran reported not sleeping well, having nightmares, taking medication sporadically, and experiencing the following symptoms: flashbacks, night sweats, difficulty focusing, isolation, and mood swings. Since separation from active service, he has been employed with good relationships with supervisors and co-workers, as well as with his siblings and wife. He noted changes in his daily activities since development of his psychiatric disorder, to include not listening to music and socially isolating himself. Upon clinical evaluation, the Veteran was very talkative and appeared anxious; however, he also demonstrated orientation, communication, concentration, and memory within normal limits; appropriate appearance, hygiene, behavior, and thought process; and normal affect, mood, and abstract thinking. There were also no findings of panic attacks, suspiciousness, delusional history, delusions, hallucinations, obsessional rituals, impaired judgment, or suicidal or homicidal ideation. Following the clinical evaluation, the VA examiner confirmed the Veteran's diagnosis of PTSD, assigned a GAF score of 60, and concluded, in part, the following: Mentally, [the Veteran] does not have difficulty performing activities of daily living . . . psychiatric symptoms are not enough to interfere with social and occupational functioning or to require continuous medication. He has no difficulty understanding commands. He appears to pose no threat of persistent danger or injury to self or others. At a May 2010 private psychological evaluation, the Veteran reported experiencing night sweats, nightmares, difficulty focusing, frequent mood swings, anxiety, nervousness, low frustration tolerance, intrusive memories, flashbacks, hallucinations, sleep impairment, isolation, avoidance of stimuli associated with in-service trauma, and paranoia. Following the clinical evaluation, Dr. E. C. B. confirmed the diagnosis of PTSD, assigned a GAF score of 45, and concluded, in part, that the Veteran's "social withdrawal, isolation, paranoia, and withdrawal prevent him from seeking medical help and support . . . [and] [h]e is disabled by this traumatic event and therefore not able to maintain gainful employment." At an August 2011 VA examination through QTC Medical Services, the Veteran reported constant symptoms of insomnia, nightmares, flashbacks, hypervigilance, paranoia, suspiciousness, exaggerated startle response, avoidance of crowds and public areas, detachment, social isolation, anhedonia, and difficulty with concentration and memory. He explained that these symptoms affect his total daily functioning resulting in fatigue, negative social interactions, loss of relationship and connection with others, and difficulty falling asleep. He also described the relationships with his siblings as "good" and with his wife as "okay," and has not worked since 1986 but his unemployment is not due, primarily, to the effects of a mental condition. Upon clinical evaluation, the Veteran demonstrated orientation, communication, and speech within normal limits; appropriate appearance, hygiene, behavior, and thought processes; good eye contact; disturbance of motivation and mood; flattened affect and anxiety; impaired attention and/or focus; difficulty sustaining attention and focus; and signs of suspiciousness. There were also no findings of impaired judgment, panic attacks, obsessive-compulsive behavior, homicidal ideation, or history of delusions, hallucinations, violent behavior, or suicide attempts. Following the clinical evaluation, the VA examiner confirmed the Veteran's diagnosis of PTSD, assigned a GAF score of 52, and concluded, in part, the following: Mentally, [the Veteran] does not have difficulty performing activities of daily living. The best description of the claimant's current psychiatric impairment is psychiatric symptoms cause occupational and social impairment with reduced reliability and productivity . . . supported by the following symptoms: flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and severe anhedonia and social isolation Currently, he is unable to establish and maintain effective work/school and social relationships because he has no desire to do anything other than totally isolate, with the exception of his wife, to some extent, with his siblings. At a December 2012 VA Disability Benefits Questionnaire (DBQ) examination for PTSD, the Veteran reported his marriage of 15 years if "going fine," current employment as a real estate broker and is "very busy right now," and attends church sporadically. Upon clinical evaluation, the Veteran demonstrated symptoms of depressed mood, suspiciousness, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and flashbacks. Following the clinical evaluation and review of the claims file, the VA examiner confirmed the Veteran's diagnosis of PTSD with occupational and social impairment with occasional decrease in work efficiently and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, assigned a GAF score of 50, and concluded, in part, the Veteran does not appear to pose any threat of danger or injury to self or others, there is no change in the diagnosis, and the condition is active. At an April 2013 private psychological evaluation, the Veteran reported experiencing difficulties with sleep and currently employed as a real estate broker with an annual income in the range of $20,001 to $30,000. He also noted interacting with people outside his immediate family once or twice a week and has one or two people whom he considers as close friends. Upon clinical evaluation, Dr. E. C. B. observed the Veteran was oriented to person, place, and time, attention/concentration difficulties, difficulty thinking and concentrating, depression, apathy, and possible deficits in short-term verbal memory, hallucinatory experiences, delusional thinking, unusual thoughts, and problematic behavior patterns. Following the clinical evaluation, Dr. E. C. B. confirmed the Veteran's diagnosis of PTSD and assigned a GAF score of 45. VA treatment records dated from May 2006 to September 23, 2013 ongoing assessments of prolonged PTSD characterized as stable and the Veteran's denial of suicidal or homicidal ideation. Particularly in March 2007, the Veteran's PTSD was characterized as prolonged with moderate severity with symptoms of hypervigilance, irritability, insomnia, and avoidance. He reported current employment as a real estate broker, generally working from home, tends to isolate himself. The VA treating physician noted the Veteran was alert and attentive, oriented, cooperative, and demonstrated normal speech, depressed mood, normal thought process, no unusual thought content, good insight and judgment, and no suicidal or violent ideation. As noted above, VA examiners assigned the Veteran GAF scores of 60 in February 2008, 52 in August 2011, and 50 in December 2012. The Board also acknowledges that private physicians assigned the Veteran GAF scores of 39 in November 2006 and 45 in May 2010 and April 2013. A score between 31 and 40 reflects 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; child frequently beats up younger children, is defiant at home, and is failing at school). See 38 C.F.R. §§ 4.125, 4.130. A score between 41 and 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning. Id. A score between 51 and 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. After review of the pertinent evidence of record from June 27, 2006 to September 23, 2013, as discussed above, the Board finds the evidence establishes the Veteran's service-connected PTSD was not manifested by occupational and social impairment with deficiencies in most areas due to psychiatric symptomatology. As discussed above, the Veteran reported, in part, to having anxiety, isolation, nervousness, low frustration tolerance, poor sleep, extreme isolation, intrusive memories, avoidance, sleep impairment, decreased interest in leisure activities, nightmares, night sweats, frequent mood swings, flashbacks, hallucinations, paranoia, hypervigilance, exaggerated startle response, anhedonia, difficulty with concentration and memory, difficulty in establishing and maintaining effective work and social relationships, and he received a GAF score of 39 in November 2006. Nevertheless, his overall psychiatric symptomatology did not rise to the level of severity, frequency, or duration to demonstrate more severe occupational and social impairment at any time during the appeal period to warrant a higher rating. In fact, the Veteran has demonstrated ongoing effective relationships with his wife, siblings, and a few close friends as well as gainful employment as a real estate broker during the period on appeal. As such, an initial rating in excess of 50 percent from June 27, 2006 to September 23, 2013 is not warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Finally, a total disability rating based on individual unemployability (TDIU) has not been raised or warranted because the evidence does not show, that the service-connected PTSD rendered him unemployable during the appeal period from June 27, 2006 to September 23, 2013. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). As noted above, while the Veteran reported at the August 2011 VA QTC examination to being unemployed since 1986, he reported throughout the appeal period to being employed as a real estate broker and even noted at the April 2013 private psychiatric evaluation that his annual income is in the range of $20,001 to $30,000. From September 24, 2013 to October 5, 2015 At the outset, the Board notes that the issue of entitlement to a TDIU was granted in a December 2015 VA rating decision effective from September 24, 2013. Particularly, the RO noted that the evidence of record indicated the Veteran "cannot hold gainful employment again due to [his] cognitive decline" presumably due to service-connected PTSD. As a result, while total occupational impairment has been acknowledged, review of VA psychiatric treatment records from September 24, 2013 to October 5, 2015 document the following psychiatric symptomatology, particularly with regard to social impairment. At the September 2013 BVA hearing, the Veteran reported, in part, limited interaction with many people, to include sporting events, concerts, and occasionally visits his out-of-town family members. He noted being frustrated but denied thinking about hurting himself or others. At a May 2014 VA DBQ examination for PTSD, the Veteran characterized his marriage as "alright," maintains contact with his siblings, and spends time completing yard work, chores, reading the newspaper, and occasionally watching television. Nevertheless, he also noted losing interest in listening to music, watching sports, and maintaining current knowledge of athletes and championships. Upon clinical evaluation, the Veteran demonstrated, in part, difficulty in establishing and maintaining effective work and social relationships and denied thoughts of wanting to harm himself or others. Following the clinical evaluation and review of the claims file, the VA examiner confirmed the Veteran's diagnosis of PTSD with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. VA treatment records dated from September 24, 2013 to October 5, 2015 also note ongoing assessments of prolonged PTSD characterized as stable and the Veteran's denial of suicidal or homicidal ideation. Particularly in August 2014, the Veteran particularly noted he "does not like being around people so never liked going to group therapy." After review of the pertinent evidence of record from September 24, 2013 to October 5, 2015, as discussed above, the Board finds the evidence establishes the Veteran's service-connected PTSD was not manifested by total occupational and social impairment due to psychiatric symptomatology. While he reported, in part, to having limited interaction with many people, losing interest in leisure activities, and difficulty in establishing and maintaining effective work and social relationships, his overall psychiatric symptomatology did not rise to the level of severity, frequency, or duration to demonstrate total occupational and social impairment at any time during the appeal period to warrant a higher rating. As such, an initial rating in excess of 70 percent from September 24, 2013 to October 5, 2015 is not warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Additional Considerations To the extent the Veteran has made requests throughout the appeal period for earlier effective dates for the assignments of 50 and 70 percent disability ratings for PTSD, the Board finds that contention was considered within the claim on appeal for higher ratings discussed above. The Board is aware that the symptoms listed under the next-higher ratings of 70 and 100 percent are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Moreover, entitlement to such an evaluation requires sufficient symptoms of the requirements, or others of similar severity, frequency, or duration, that cause the specific type of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 117-18. In this case, the Board has considered the next-higher ratings for the initial appeal periods prior to September 24, 2013 and from September 24, 2013 to October 5, 2015 but finds that they are rated appropriately. The signs and symptoms manifested are contemplated by the currently assigned ratings of 50 and 70 percent as they do not manifest with the severity required for higher ratings. The Board has considered the Veteran's reported history of symptomatology related to the service-connected PTSD. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Veteran is not competent to identify specific level of his service-connected psychiatric disability according to the appropriate Diagnostic Code and relevant rating criteria, as the record does not show that he has the necessary training, skills, or expertise to make this determination. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, such competent evidence concerning the nature and extent of the Veteran's disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's subjective reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has also considered the possibility of staged ratings and finds that the scheduler ratings for the service-connected disability on appeal have been in effect for appropriate periods on appeal. Accordingly, additional staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. ORDER An initial rating in excess of 50 percent prior to September 24, 2013 and in excess of 70 percent from September 24, 2013 to October 5, 2015 for PTSD is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs