Citation Nr: 1753553 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-23 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 30 percent prior to March 3, 2016, and in excess of 50 percent thereafter for service-connected PTSD. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Army from December 1989 to April 1993, with service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, granting service connection for PTSD and assigning an initial disability evaluation of 30 percent, effective as of April 19, 2010. The Board notes that the Veteran's representative appears to raise a claim of entitlement to an effective date prior to April 19, 2010, for the award of service connection for PTSD, suggesting that the Veteran submitted an earlier informal claim in January 2010 in the form of a Statement in Support of Claim for PTSD. See October 2017 IHP. However, the Board reviewed this document and found it to be mislabeled in the Veteran's claims file-it was submitted by the Veteran and received by VA in July 2010, not January 2010, as the representative had argued. Consequently, the issue of entitlement to an earlier effective date for PTSD is not currently on appeal. In a June 2017 rating decision issued during the pendency of the appeal, the AOJ increased the disability evaluation for PTSD to 50 percent effective March 3, 2016, the date of the Veteran's most recent VA examination. Because the AOJ did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to March 3, 2016, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; impairment of short-term 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. 2. From March 3, 2016, the Veteran's PTSD was manifested by occupational and social impairment, with deficiencies in work, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideation; depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. For the period prior to March 3, 2016, the criteria for a disability rating in excess of 30 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. For the period after to March 3, 2016, the criteria for a disability rating in excess of 50 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or 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). II. Legal Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DC). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Under the general rating formula for mental disorders, a 30 percent rating is assigned when a veteran's PTSD causes 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when a veteran's PTSD causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is assigned when a veteran's PTSD causes 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 100 percent rating is assigned when a veteran's PTSD causes 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 daily living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA is not required to find the presence of all, most, or even some of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating and permits consideration of other symptoms particular to each veteran and disorder and the effect of those symptoms on the Veteran's social and work situation. Id. Indeed, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In this case, the Veteran asserts that he is entitled to higher disability ratings than currently assigned for his service-connected PTSD, evaluated as 30 percent disabling prior to March 3, 2016, and 50 percent disabling thereafter. A. Period prior to March 3, 2016 The Veteran was diagnosed with PTSD in February 2010. In a February 5, 2010, VA treatment note, the Veteran reported nightmares several times per week, flashbacks, hypervigilance, and increased social isolation. He also reported an exaggerated startle reflex. He did not exhibit any psychosis; was appropriately groomed and alert and oriented with normal thinking and speech; and he denied suicidal or violent ideations. In a February 22, 2010, VA treatment note, the Veteran reported a history of multiple failed marriages, but generally good relationships with his sons. He reported experiencing symptoms of depression, but no suicidal ideations. He was appropriately groomed, exhibited normal thinking and speech, and gave no indication of gross cognitive confusion. In an April 5, 2010, VA treatment note, the Veteran was noted to have successfully completed a PTSD clinical team orientation. He also reported decreased anger outbursts, though he had recently broken up with his girlfriend. He reported managing work relationships pretty well, especially since being able to work alone most of the time. A brief mental examination was generally normal; the Veteran was appropriately groomed, exhibited no suicidal ideations, normal thinking and speech, and no indications of gross cognitive confusion. In September 2010, the Veteran was afforded a VA examination concerning his PTSD symptoms. The examiner noted that the Veteran reported multiple marriages, most of which ended because his wives thought he was "crazy" and he exhibited anger problems. The Veteran reported having a few friends, with whom he would get together. He reported leisure activities of sitting in the park, fishing, and making model cars. He denied a history of suicide attempts but admitted a history of violent behavior. He denied delusions or hallucinations but admitted disturbed sleep which interfered with daily activity. The Veteran reported being employed as a police officer with the Birmingham Police Department, mainly investigating hit and run accidents. He reported having lost about nine weeks of work during the previous 12 month period because he "[j]ust needed time off. Tired. I guess stress. Don't want to be around anyone. Time out." The Veteran reported having held at least 12 jobs since discharge and before joining the police department, but he denied ever being fired-rather, he left because he didn't like the people or disliked the lack of structure. The Veteran denied having problems at his current job, noting that he works alone and doesn't have to deal with other people. The examiner noted that the Veteran had a history of alcohol abuse in the military and until a few years prior to the examination. The examiner also noted that the Veteran was emotionally disengaged from relationships, citing his multiple divorces and distant relationships with his children. The examiner observed the Veteran to be "mild/moderate" in psychosocial functioning and noted that his speech was mumbled and vague. However, he had a relaxed, friendly, and casual attitude. The examiner also observed normal affect and noted that the Veteran appeared to be in a good mood; "happy." The examiner observed the Veteran's remote memory to be normal, but recent memory was mildly impaired. Overall, the examiner concluded that the Veteran's PTSD symptomatology resulted in occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks but with generally satisfactory functioning. In a February 2013 VA treatment note, the Veteran reported irritability and angry outbursts, citing a recent work suspension due to an altercation with co-workers. He also reported relationship problems with his son. He denied suicidal ideations. In a February 2014 VA treatment note, the Veteran reported increased stress after wrecking his car in a snowstorm, as well as due to significant problems with his knees. He described experiencing mood swings, being depressed at times, but denied suicidal ideations. In a March 2014 VA mental health report of telephone contact, the Veteran reported an increase in nightmares. He denied suicidal ideations. In a June 2014 VA treatment note, the Veteran again reported mood swings, along with some passive suicidal ideations when depressed. He noted that his night sweats had decreased, but he continued to have some nightmares. In a July 2014 VA treatment note, the Veteran reported being transferred to a different department at work due to his anger problems; the new role would involve less interaction with others. He denied recent suicidal ideations. In a September 2014 VA treatment note, the Veteran reported irritability with co-workers and family members. He reported being generally "down" and depressed most of the time, but denied suicidal ideations. In a November 2014 VA treatment note, the Veteran again denied recent suicidal or violent ideations. He explained that he had made "quite a few attempts" previously, "but that was a while ago." He reported moderate depression. In a December 2014 VA treatment note, the Veteran reported an improvement in nightmares. However, he reported increased stress because his wife had been "quite ill" and suffered some mild strokes. In a November 2015 VA treatment note, the Veteran's wife reported that the Veteran isolated himself and had extreme startle response, avoidance issues, nightmares, detachment from loved ones, and dislike of crowds. When asked about her strokes, the Veteran's wife denied having strokes or missing work. In a December 4, 2015, VA treatment note, the Veteran again reported problems with co-workers, which led to altercations and subsequent suspensions. The Veteran exhibited difficulty on a task of immediate and delayed memory, with difficulty at times recalling dates and timelines of biographical events. The Veteran denied suicidal or violent ideations. In a December 21, 2015, VA treatment note, the Veteran reported being depressed "this time of year," and that his coping strategy was to be alone and drink alcohol. He reported disliking crowds and holiday fireworks, and described having a difficult relationship with his wife. According to a February 2016 VA treatment note, the Veteran stated that his PTSD symptoms tended to "come and go" in severity. Overall, the Veteran's medical records prior to March 3, 2016, consistently detail symptoms more closely associated with a 50 percent disability rating for PTSD. During this time, the Veteran was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. However, the Veteran consistently reported ongoing problems with occupational and social impairment. Specifically, the Veteran described efforts to isolate himself socially, with increasingly strained familial relationships. Moreover, the Veteran's persistent irritability and anger problems resulted in numerous altercations with co-workers that led to several work suspensions, ultimately culminating in a transfer to a different department where interaction with others would be limited. The Board finds that the Veteran's social and occupational impairment is better contemplated by a 50 percent disability rating, which, as previously discussed, is warranted where there are symptoms of occupational and social impairment with reduced reliability and productivity due to disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, among other things. 38 C.F.R. § 4.130, Diagnostic Code 9411. However, a higher disability rating of 70 percent for this period is not warranted, as such a rating contemplates a more severe level of 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. For the period prior to March 3, 2016, the Veteran displayed occupational and social impairment, but consistently denied suicidal ideations and was found to display normal thought and speech, and generally good judgment and insight. Based on the foregoing, the Board finds that an increased disability rating of 50 percent for the Veteran's service-connected PTSD for the period prior to March 3, 2016, is warranted. However, the preponderance of the evidence of record demonstrates that a higher evaluation of 70 percent is not warranted at any time prior to March 3, 2016. B. Period after March 3, 2016 The Veteran underwent another VA examination concerning his PTSD on March 3, 2016. The Veteran described an "okay" relationship with his wife, noting that his wife tells him he is "grumpy and irritable at times." The Veteran reported that he doesn't talk to his son often and has no contact with his stepdaughters; however, he occasionally talks to two military friends. He reported decreased interest in activities, noting that he mostly just sits in the garage and watches TV. The Veteran described working in the Birmingham Police Dpeartment property room, which entails minimal interaction with others; however, he was contemplating leaving his job because he "hates going to work everyday." He cited yet another recent work suspension after an altercation with a co-worker. The Veteran reported problems with chronic depression, despite sometimes being in a good mood. He described increasing problems with avoidance, stating that he dislikes being in public places as it makes him nervous; he frequently feels as though he is on guard. The Veteran reported frequent nightmares about military traumas, after which he wakes up in sweat. The Veteran reported avoiding or attempting to avoid memories of his military traumas, as well as activities, places, or people that would remind him of those traumas. The Veteran denied current suicidal or violent ideations. The examiner noted that the Veteran exhibited markedly diminished interest or participation in significant activities, as well as feelings of detachment or estrangement from others. The examiner also noted irritable behavior and frequent angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The examiner also observed depressed mood, anxiety, suspiciousness, mild memory loss, a flattened affect, and difficulty in establishing and maintaining effective work and social relationships. Overall, the examiner concluded that these symptoms resulted in occupational and social impairment with reduced reliability and productivity. In a May 2016 VA treatment note, the Veteran reported that his PTSD symptoms "come and go" in severity but were ongoing. He denied suicidal ideations, but admitted a prior suicide attempt by firearm shortly after discharge from the military. The Veteran reported that he was working again, and that he "does better at work when left alone." In a June 2016 VA treatment note, the Veteran reported nightmares, hyperarousal, and negative thoughts, and continued to exhibit significant impairment in social and occupational functioning. In a July 2016 VA treatment note, the Veteran reported increased anxiety and irritability and said he was overwhelmed with life and distressing emotions. In an August 2016 VA treatment note, the Veteran reported that he was "doing terrible" and reported a significant increase in pain and depression due to job stress, the recent death of his nephew (after which he was hospitalized for a panic attack), and chronic physical pain. He reported that his depression "comes and goes" in severity, and that he had been drinking more and had recently lost his driver's license due to a DUI. He reported that he continued to have nightmares. He denied suicidal or violent ideations and was not observed to be in psychological distress. In a November 2016 VA treatment note, the Veteran reported feeling depressed "at times," and said that seeing overseas service members celebrating Thanksgiving gave him flashbacks to his own service. He admitted passive suicidal ideation at times, but denied any current suicidal or violent ideations. In an April 2017 VA treatment note, the Veteran reported experiencing nightmares and flashbacks "quite often." He stated that his irritability and anger had gotten a little better, but he had recently gotten into yet another altercation at work, this time physical. He stated that he continued to experience chronic depression but denied current suicidal or violent ideations. In a July 2017 VA treatment note, the Veteran reported experiencing nightmares three to four times a week but reported fewer flashbacks and stated that he had "calmed down a bit." He reported that his depression "comes and goes" and denied recent suicidal or violent ideations. Overall, the Board finds that the Veteran's PTSD symptoms for the period from March 3, 2016, onward more closely approximate the diagnostic criteria for a 70 percent disability rating, due largely to the Veteran's occupational impairment. The Veteran's March 2016 VA examination and subsequent mental health treatment notes chronicle significant work problems due to increased anger and irritability and resultant decreased impulse control. The record also shows that the Veteran exhibited an inability to adapt to stressful circumstances. The Veteran also exhibited worsening judgment, especially in the period following the March 2016 VA examination, as evidenced by his recent DUI arrest. Moreover, the Veteran more frequently acknowledged suicidal ideations, albeit on a passive basis. However, a higher disability rating of 100 percent is not warranted. As previously discussed, a maximum 100 percent rating requires 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Based on the evidence set forth above, the Board does not find that these criteria have been met, and finds that a 70 percent rating more appropriately captures the Veteran's disability picture for the period. The Veteran is capable of working and has maintained some relationships - albeit in a limited fashion at times. Nonetheless, the evidence demonstrates that the Veteran is not "totally" impaired occupationally and socially. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his PTSD and notes that his lay testimony is competent to describe certain associated symptomatology. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above. Ultimately, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the Veteran's PTSD. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue. Having resolved all reasonable doubt in favor of the Veteran, the Board finds that an initial rating of 50 percent is warranted prior to March 3, 2016, and that a 70 percent evaluation is warranted thereafter for PTSD. See 38 U.S.C. § 5107(b). To this limited extent, the Veteran's claim is granted. However, the preponderance of the evidence demonstrates that an initial evaluation in excess of 50 percent prior to March 3, 2016, and an evaluation in excess of 70 percent thereafter are not warranted. As such, this aspect of the Veteran's claim must be denied. ORDER Entitlement to an initial rating of 50 percent prior to March 3, 2016, and a rating of 70 percent thereafter for service-connected PTSD, is granted. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs