Citation Nr: 1753572 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-09 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1968 to February 1972. His awards and decorations include the Combat Action Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2017, the Veteran testified at a video conference hearing before the undersigned. FINDING OF FACT For the entire initial rating period, the Veteran's service-connected PTSD has been manifested by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his attorney have raised any 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. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in February 2011. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran filed his initial claim requesting service connection for PTSD on February 25, 2011. In the July 2011 VA rating decision, service connection for PTSD was granted and assigned at 30 percent for the entire appeal period effective from February 25, 2011. See 38 C.F.R. § 4.130, Diagnostic Code 9411. During the course of the appeal, the disability rating was increased to 50 percent disabling effective for the entire appeal period from February 25, 2011. Id. Since the 50 percent disability rating is not the maximum rating available, the issue is listed on the title page accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). Pursuant to the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The next-higher rating of 70 percent rating 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 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). 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). In June 2011, the Veteran underwent a VA outpatient mental health evaluation and a VA examination for PTSD, approximately two days apart. At the VA outpatient mental health evaluation, the Veteran was alert and oriented, casually groomed, and displayed good eye contact, normal speech, depressed mood, constricted affect, goal-directed thought process, intact cognitive function, and good insight and judgment. The Veteran denied suicidal ideation, homicidal ideation, auditory and visual hallucinations, and feeling hopeless or helpless. At the VA examination for PTSD, the Veteran reported being married for 37 years but not currently that close, not having many friends, and transitioning from an extrovert to a loner spending more time with his dog. He was employed until a few weeks prior as a trucker and got into conflicts with employers although he was a good salesperson for many years. Upon evaluation, he was clean and casually dressed, anxious, depressed, and oriented to person, time, and place. He demonstrated spontaneous and clear speech, constricted affect, intact attention, unremarkable thought process, unremarkable thought content, understanding outcome of behavior (judgment) and that he has a problem (insight), good impulse control, ability to maintain personal hygiene, and normal remote memory. There were findings of sleep impairment, inappropriate behavior described as wringing hands a lot, episodes of violence but no fights since he stopped drinking nine years ago, slight problem with recreational activities, mildly impaired recent and immediate memory, recurrent and intrusive distressing recollections of traumatic events, avoidance of stimuli associated with trauma, markedly diminished interest or participation in significant activities, irritability or outbursts of anger, difficulty concentrating, and hypervigilance. There were no findings of delusions, hallucinations, obsessive/ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. The VA examiner characterized the Veteran's PTSD symptomatology as daily and mild to moderate with social and occupational impairment in important areas of functioning. In March 2012, the Veteran underwent a private mental status examination. He reported being married for 40 years, during which they separated multiple times, leaving his job because of emotional factors, having a variable energy level and episodes of fatigue, some short term memory problems, sleep impairment, and changed from an extrovert to detached. Upon clinical evaluation, the Veteran was cooperative, disoriented to time but not to place and person, and displayed normal attention span, had relevant and coherent speech patterns, his affect was within normal limits, he had a broadly intact memory, and had a normal stream of thought. VA treatment records dated from November 2012 to August 2013 show that the Veteran is on continuous medication and treatment for his PTSD. In November 2012, he reported feeling down again, snoring at night but wakes up tired, and having a dog for the past three years has made a difference. He denied feeling suicidal or homicidal and all hallucinations. The Veteran was well-dressed and well-groomed, cooperative, calm, and demonstrated normal speech, dysphoric mood, appropriate affect, coherent and logical thought process, and fair insight and judgment. In February 2013, the Veteran reported a chronic depressed mood, social isolation, marital discord, low self-esteem, and a limited support system. He denied feeling suicidal or homicidal and all hallucinations. The Veteran was well-dressed and well-groomed, cooperative, calm, and demonstrated normal speech, euthymic mood, appropriate affect, coherent and logical thought process, and fair insight and judgment. In April 2013 and May 2013, the Veteran participated in group therapy sessions. His affect and behavior was stable and did not describe any suicidal or homicidal ideation. In May 2013, the Veteran reported feeling worse after speaking with neighbors about his combat experiences, confused and uncertain about his decision-making abilities, sad, and lonely. He also noted ongoing marital discord and having more passive suicidal ideations, but denied feeling homicidal towards anyone and denied all hallucinations. The Veteran was well-dressed and well-groomed, cooperative, calm, and demonstrated normal speech, depressed mood, appropriate affect, coherent and logical thought process, and fair insight and judgment. At a subsequent session in May 2013, the Veteran explained he has alienated everyone except his wife and helps her with an embroidery business in the home, speaks with one of his daughters very regularly, and retired from employment in 2012. He was alert, attentive, oriented, fairly groomed, and cooperative with fair concentration. He demonstrated coherent speech with no formal thought disorder, neutral mood, stable affect, grossly intact recent and remote memory, and good insight and judgment, and denied delusions and active hallucinations. In August 2013, the Veteran reported he filed for divorce, felt more anxious at times, and denied feeling suicidal or homicidal and all hallucinations. He was well-groomed, cooperative, calm, and demonstrated normal speech, euthymic mood described as anxious, appropriate affect, coherent and logical thought process, and fair insight and judgment. Following treatment sessions in November 2012, February 2013, May 2013, and August 2013, the VA physicians concluded the Veteran appeared stable and suitable for outpatient treatment, not deemed an imminent threat for self or others, not thought to be withholding information regarding suicidal or homicidal ideations, and was a reliable source of information. At his June 2017 Board hearing, the Veteran provided competent and credible lay testimony. He reported he cannot get along with people, separated from his wife for two years, stays alone, but still spends time with his children on special occasions and holidays and keeps in contact with one friend. He noted experiencing anxiety and depression difficulty with short-term memory, focus, concentration, and motivation, but able to complete household chores like laundry, washing dishes, feeding his dog, and grocery shopping enough for monthly trips. He also explained that he used to be involved with church but not anymore due to the avoidance of crowds about 10 to 15 years ago. He reported difficulty with suicidal thoughts, and that his dog was a significant source of positivity in his life. His hearing testimony provided highly probative evidence in support of his claim. After review of the pertinent evidence of record, including his credible testimony, the Board finds the Veteran's service-connected PTSD more closely approximates manifestations of occupational and social impairment with deficiencies in most areas due to his symptomatology discussed above for the entire appeal period since February 25, 2011. An initial rating of 70 percent is granted, beginning February 25, 2011. See 38 C.F.R. § 4.130, Diagnostic Code 9411. His psychiatric symptomatology does not rise to the level of severity, frequency, or duration to demonstrate total occupational and total social impairment at any time during the appeal period to warrant a 100 percent disability rating. Review of the evidentiary record indicates the Veteran demonstrated ongoing relationships with his children and one friend, appropriate behavior, spontaneous and clear speech, orientation to person, place, and time, goal-directed and logical thought process, unremarkable thought content, good impulse control, ability to maintain personal hygiene and activities of daily living like grocery shopping and laundry, normal remote memory, and he denied hallucinations and feeling homicidal. Moreover, VA treating physicians concluded the Veteran was not deemed an imminent threat to himself or others. The Board is aware that the symptoms listed under the next-higher rating of 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 rating for the entire initial appeal period since February 25, 2011 but finds that it is rated appropriately at 70 percent. The signs and symptoms manifested are contemplated by the currently assigned rating of 70 percent as they do not manifest with the severity required for the 100 percent rating, which requires both total social and total occupational impairment. The Board has also considered the possibility of staged ratings and finds that the scheduler rating for the service-connected disability on appeal has been in effect for appropriate period on appeal. Accordingly, staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. Lastly, a total disability rating based on individual unemployability has not been raised because the Veteran does not contend, and the evidence does not show, that the service-connected disability on appeal renders him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER An initial rating of 70 percent for PTSD is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs