Citation Nr: 1753945	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO. 13-31 550	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for a service-connected posttraumatic stress disorder (PTSD).


ORDER

A disability rating for PTSD of 50 percent, but not higher, is granted. 


FINDING OF FACT

For the entire period, the Veteran's PTSD has been manifested by symptomatology that has approximated occupational and social impairment with reduced reliability and productivity, but has not more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.


CONCLUSION OF LAW

The criteria for a disability rating of 50 percent for PTSD have been met; the criteria for a rating in excess of 50 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is a veteran (the Veteran) who had active duty service from October 1969 to September 1970. He was awarded the Combat Action Ribbon.

This appeal comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the RO in Houston, Texas.

In November 2016, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is associated with the claims file.

The Veteran submitted additional medical evidence after the most recent adjudication of the claim. However, he waived his right to have the claim adjudicated by the RO in the first instance. 

The Board has considered whether the issue of TDIU entitlement is a component of the increased rating claim in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). However, the Veteran was employed for much of the period on appeal. He retired on June 28, 2013, and attributed his retirement to multiple disabilities, both mental and physical, both service-connected and nonservice-connected. The Board also notes that the issues on appeal were specified at the Board hearing and a TDIU claim was not raised. Accordingly, the Board finds that a TDIU claim is not reasonably raised by the record. 

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. 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).

In the process of evaluating a psychiatric/mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran's psychiatric symptoms and the veteran's capacity for adjustment during periods of remission. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering rather than based solely on the examiner's assessment of the level of disability at the moment of examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126. 

The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. 

By establishing one general formula to be used in rating more than 30 mental disorders, the VA Secretary anticipated that any list of symptoms justifying a particular rating would, in many situations, be either under- or over-inclusive. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). 

The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. Since August 4, 2014, VA has required a diagnosis of a mental disorder that conforms with the DSM-5. For claims prior to that date, VA required a diagnosis that conformed with the DSM-IV-TR. See Schedule for Rating Disabilities: Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093, 45,093 -94 (Aug. 4, 2014 (amending 38 C.F.R. § 4.125)). The DSM-5 eliminated the Global Assessment of Functioning (GAF) scores used in the DSM-IV. 

The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the 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). See 38 C.F.R. § 4.126. 

If the evidence demonstrates that a claimant 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 Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of 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 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.

Service connection for PTSD was granted in an August 2009 rating decision. A 30 percent initial rating was assigned under Diagnostic Code 9411, effective August 13, 2008. The current appeal arises from a claim for an increased rating received at the RO on November 22, 2010.

Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 

A 10 percent rating is warranted for PTSD if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 

A 30 percent rating is warranted for PTSD if there is 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). 

A 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 

A 70 percent rating, may be assigned 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); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). 

A 100 percent rating contemplates 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.

The report of an October 2008 VA Mental Health Examination reveals the Veteran's complaint that he had become very emotional. He described himself as a workaholic, but was never violent with others. He was easily emotionally upset and easily triggered to cry. When this would occur, he did not like to communicate with anyone. He described  symptoms of withdrawal from social contact, suspiciousness, isolation, irritability, depression, frequent crying, difficulty being in crowds, and avoidance of stressful situations that may trigger memories of the trauma. These symptoms occurred as often as 3 times per week with each occurrence lasting several hours. These symptoms affected his total daily functioning with the result that he had much less social interaction, was avoidant of most people in his life, had difficulty doing normal social activities with his family, and had difficulty getting along with others, at work and at home. He reported having trouble sleeping for 10 years. His relationship with his spouse of 38 years was mixed, with some difficulties. He described the relationship with his children as generally good, but he did have some difficulty dealing with them due to his PTSD. He was working in a position he had held for 38 years. His relationship with his supervisor was good and his relationship with his co-workers was good. He had not lost any time from work. He stated he felt constantly nervous, and tense, with poor ability to relax, and little enjoyment from any activities in his life for many years. He had a persistent difficulty concentrating. 

On mental status examination, orientation is within normal limits. Appearance and hygiene were appropriate. Behavior was appropriate. Affect and mood were abnormal with depressed mood, which occurred near-continuously, affecting the ability to function independently. There was a persistent restricted range of affect. 
Communication was within normal limits. Speech was within normal limits. Concentration was within normal limits. Panic attacks were absent. The Veteran reported not trusting others easily and being very suspicious of the people he does not know. There was no delusional history. At the time of examination, there were no delusions observed. There was no hallucination history. At the time of examination, there were no hallucinations observed. Obsessional rituals were severe enough to interfere with routine activities. He feels the need to check outside frequently and to constantly monitor his surroundings. Thought processes were appropriate. Judgment was not impaired. Abstract thinking was normal. Memory was within normal limits. Suicidal ideation was absent. Homicidal ideation was absent. The examiner assigned a GAF score of 60. 

An April 14, 2010, Vet Center assessment reveals no suicidal thoughts, no suicidal plan, no history of prior attempts, no feelings of hopelessness or despair, no homicidal thoughts, and no homicidal plans. Examination revealed the Veteran's appearance was unkempt; his manner was anxious; his speech was appropriate; he was orientated to time, place, and person; memory function was normal; affect was anxious; associations were within normal limits; judgment was fair; there were no delusions or disorganized thinking; there were no hallucinations or grossly disorganized catatonic behavior; there was no sleep disturbance. 

A statement from the Veteran's spouse received in February 2011 notes the Veteran had gone from bouts of alcoholism, now in long-term sustained remission, to a complete workaholic. He had been a heavy-duty truck parts salesman since his return from Vietnam service 41 years prior. He reportedly felt the need to cover for the "inadequacy" of his coworkers. While he could function on the edge of normalcy in his daily work environment, she thought he was on the edge of a breakdown. He had no outside interests except work. Most recently, he had difficulty remembering where he put things. He had become extremely compulsive in daily rituals. 

The report of a May 2012 VA Mental Health Examination reveals the Veteran's report of no changes in his social life since his last rating and his denial that his relationship with his wife was getting worse. He reported good relationships with children and grandson. He was semi-retired in January 2012, and was working 2.5 days per week. He denied any disciplinary action at work or significant deterioration in his work life, other than increase in what he believed was poor customer service by his colleagues. Overall, he reported no changes in his mental health condition/symptoms. Symptoms reported included only depression. The examiner assigned a GAF score of 60 and found that his overall level of impairment was best described by the 30 percent criteria.

The report of an August 2013 VA Mental Health Examination reveals the Veteran's report that there had been no changes to his social/marital/family history since the prior examination. He maintained contact with his children on a regular basis. He had recently started participating in water aerobics and was taking monthly motorcycle rides. He retired on June 28, 2013. He noted that, due to PTSD symptoms, he was having increased difficulty tolerating other employees not maintaining what he believed to be appropriate work standards. In addition, he stated that he was having multiple health problems which were interfering with his ability to keep up with the demands of the job. He noted that retirement had been going alright, but was a little depressing. He noted that he had been making efforts to keep a schedule and stay busy in order to avoid feelings of depression. Current symptoms were reported to include low tolerance for frustration, ongoing psychological response to certain triggers that arouse memories associated with his traumatic experiences, occasional nightmares, and rumination. The examiner assigned a GAF score of 65 and opined that the Veteran's level of impairment was best described by the 10 percent rating criteria.

A December 9, 2015, VA Mental Health Intake Note reveals the Veteran's primary concern was that "if I see something sad I break down." The Veteran discussed feeling too emotional and that he cannot communicate when he feels emotional. He was crying in session as he discussed this. He gave an example of seeing someone need emergency assistance and being unable to communicate with law enforcement because he was crying. He stated that, at home all day, he "procrastinates" doing things such as yard work, going to water aerobics, taking computer classes, and chores, all of which he wants to do, and has enjoyed in the past, but has difficulty with motivation. He stated that he used to have a group of friends that rode Harleys together, and he has been detached from them and feeling like a loner. He stated he has been a loner all his life. He discussed that he is uncomfortable around people and "I don't like them," "I can't trust them." He noted that his treatment goals were to be more active engaging in the activities he used to engage in, and he is also considering returning to work part time. On examination, grooming was good; dress was appropriate to setting; speech volume was neither increased nor decreased; speech rate was neither increased nor decreased; psychomotor activity was neither increased nor decreased; there was no compulsive, ritualistic, or stereotypic behavior; mood was mildly depressed; affect was pleasant, but sad, and appropriate to content of speech; affect range was neither increased nor decreased; affect intensity was neither increased nor decreased; level of awareness was alert; he was oriented to person, place, time, and purpose of visit; attention was neither increased nor decreased; memory for past events was intact; immediate recall was intact; speech was logical, coherent, and goal-directed; there was no evidence of loosening of associations, flight of ideas, perseveration, auditory hallucinations, visual hallucinations, illusions, delusions, ideas of reference, paranoid ideation, dissociation, obsessive thoughts, phobic reactions, suicidal ideation, or homicidal ideation. Insight, judgement, and impulse control were fair (VBMS record 10/04/2016 at 484). 

A December 16, 2015, VA Mental Health Note reveals the Veteran's report that he had 4-5 episodes when he started crying at "small things" such as commercials and other "sensitive topics." He discussed that he did not feel anything else was wrong with him, but his wife did. He explained that he was a loner and that he had problems sleeping, and this was just how he had always been. He noted that he would wake up often at night to "check the perimeter" and would sometimes do the dishes, take the dog out, or other things around the house, and would attempt to go back to sleep. Finally, he noted that he tended to avoid confrontation with others. His mood was noted to be euthymic (VBMS record 10/04/2016 at 479). 

A December 23, 2015, VA Mental Health Note reveals the Veteran shared that he had about 3 crying spells in the last week, and noticed that, if he avoided interactions with people, he was less emotional. He noted that he intended to begin going to the gym again and doing water aerobics, to increase his energy level during the day. His mood was mildly depressed (VBMS record 10/04/2016 at 467). 

A January 27, 2016, VA Mental Health Note reveals the Veteran shared that he had a few episodes of crying in the last two weeks and that he was attempting to control them. He noted that he read the handouts given to him the previous session and he was beginning to identify his emotions when he felt like crying. His mood was mildly depressed (VBMS record 10/04/2016 at 453). 

A February 27, 2016, VA Mental Health Note reveals the Veteran's chief complaint was that he was too emotional, elaborating that several times a day, he would find himself "tearing up" and unable to communicate with those around them. He stated that perhaps he was too compassionate. This was a change from previous functioning, although he noted that he had felt that way for several years. He speculated that, perhaps he has simply "bottled up" everything over the years and now things were coming out. Overall, he appeared to be experiencing increased emotional lability, but denied feeling depressed. He endorsed sleep maintenance insomnia (awakes every 2 hours followed by checking behaviors) and his wife reported nightmares. He did not recall dream content, but reported fitful sleep. The Veteran was dressed in clean, casual attire. He was oriented x 4. His mood appeared euthymic. Affect was congruent and full ranged. He was intermittently tearful. He demonstrated good eye contact. His speech was of normal rate, tone, and volume. His thought process was logical, sequential, and goal directed with appropriate content. He denied suicidal ideation or homicidal ideation. There was no evidence of hallucinations or delusions (VBMS record 10/04/2016 at 352). 

A September 14, 2016, VA Mental Health Note reveals the Veteran was alert, and oriented x 4; dress was casual but appropriate and well-groomed; speech was clear, coherent, and relevant; eye contact was good; mood was dysthymic; affect was restricted in range, congruent to mood, and non-labile; thought processes were logical, linear, and goal directed; thought content was within normal limits, with no signs or reports of hallucinations, delusions, paranoia, suicidal ideation, or homicidal ideation, plan, or intent. Memory appeared grossly intact. Judgment and insight appeared good (VBMS record 10/04/2016 at 6).

The Veteran's Vet Center counselor submitted a statement in December 2016, noting that the Veteran had initially presented with symptoms of depression, anger, anxiety nightmares, sleep problems and social avoidance. For 40 years, the Veteran bottled up his feelings about Vietnam and what he did and saw there. During that time, his wife felt helpless to help her husband to work through his issues. He continues to having problems with sleeping despite many attempts at getting treatment from the VA. In the past 6 months, he attacked his wife twice while having nightmares about Vietnam. Although, much improved, the Veteran continues to have a great deal of problems with his anxiety and not being able to control his emotions when in the presence of law-enforcement. He continues in treatment because he knows there is much work to do. He is doing well in his treatment and is motivated to getting many of his issues under control. 

The Veteran's wife submitted a statement in December 2016. She stated that the Veteran is a very gentle being, always compassionate and thinking of others. It seems this part of his personality has also made him vulnerable to unkind treatment by past co-workers. He worked as a heavy duty parts salesman all of his life since the age of 17, prior to serving in Vietnam, and was fortunate enough to find the same type of employment once he returned from the war. He spent years (about 40) without saying much about his time in Vietnam and withdrawing into himself. Unintentionally, he abandoned her and the children emotionally while under the same roof. She supposed this was his way of coping with his thoughts. He retired early, mainly because of his sentiments towards people in the workplace who seemed to care mainly about themselves than the customers. By the customers and management, he was treated in high regard. Over the years, he had experienced difficulty sleeping and suffered from nightmares. Most recently, he was shaking almost violently while sleeping and when she tried to touch him to wake him, his hand struck hers with great force. When he finally woke up, he simply said he was having a nightmare. 

The VA outpatient treatment notes can be summarized as showing generally normal or appropriate speech, affect, orientation, psychomotor activity, memory, and thought process, as well as fair, insight, judgment, and impulse control, and the absence of suicidal or homicidal ideation, delusions, hallucinations.

After a review of all of the evidence, the Board finds that the criteria for a 50 percent rating are more nearly approximated than those for the current 30 percent rating. 

The Board notes that the essential distinction between the 30 percent and 50 percent rating is centered on whether interference with occupational function is intermittent or constant. The criteria for the 30 percent rating include temporal qualifiers such as "occasional" and "intermittent" whereas the criteria for a 50 percent rating do not. Rather, they describe consistent or ongoing reduced reliability and productivity. 

The Veteran's impairment appears to be constant and ongoing. He and his spouse describe symptoms experienced every day and every night. Symptoms such as hypervigilance, checking the doors and exterior of his house, social withdrawal, and anxiety, are not subject to waxing and waning patterns, but are experienced as part of the Veteran's daily routine. 

The Board acknowledges that the evidence is not entirely in favor of a 50 percent rating. Rather than decreased productivity and reliability, the evidence appears to show that the Veteran was both reliable and productive before his retirement, having been described as a "workaholic." However, this evidence must be balanced against some evidence arguably in favor of a rating at the 70 percent level. Notably, the October 2008 VA examiner found that the Veteran had a depressed mood which occurred near-continuously, affecting the ability to function independently. The examiner also found obsessional rituals were severe enough to interfere with routine activities. These are symptom examples listed under the 70 percent criteria. While they are not the actual criteria for a 70 percent rating, see Mauerhan, 16 Vet. App. at 442, these symptoms must be weighed against the other evidence. 

While the Board finds that the criteria for a 50 percent rating are met, the Board also finds that the criteria for a 70 percent or higher rating are not met. The Veteran's deficiencies due to PTSD center on his social and occupational function. The Veteran's PTSD has been manifested by depression, anger, anxiety, nightmares and sleep impairment, suspiciousness, irritability, frequent crying, and social avoidance. While he has described difficulty concentrating, testing of his memory has been normal. Moreover, findings for judgment and thought processes have been described as fair or normal. Thus, he does not demonstrate deficiencies in most areas of life. Accordingly, the Board finds that the criteria for a 70 percent rating are not more nearly approximated than those for the 50 percent rating. There is no suggestion that the Veteran's PTSD causes total occupational and social impairment. Accordingly a rating of 100 percent is not warranted. 

In sum, the Board finds that, for the entire period, the Veteran's PTSD has been manifested by symptomatology that has approximated occupational and social impairment with reduced reliability and productivity, but has not more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In light of these findings, the Board concludes that an increased rating of 50 percent, but not higher, is warranted for the entire period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, to the extent that any rating in excess of 50 percent is sought, the preponderance of the evidence is against the claim and that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming 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).




____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD	L. Cramp, Counsel

Copy mailed to: Disabled American Veterans 


Department of Veterans Affairs