Citation Nr: 1754096 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 13-31 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an increased evaluation, in excess of 30, for posttraumatic stress disorder (PTSD), previously evaluated as anxiety disorder from April 6, 2010 to July 7, 2011, and in excess of 50 percent since July 8, 2011. 2. Entitlement to a compensable evaluation for residuals of right foot cubital fracture with arthroplasty 4th digit (claimed as right foot injury) from April 6 2010 to July 7, 2011 and in excess of 10 percent since July 8, 2011. REPRESENTATION Appellant represented by: Margaret Matthews, Attorney at Law ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty from July13, 1993 to November 12, 1993, from January 27, 2003 to January 4, 2004, from September 24, 2005 to August 30, 2006 and from March 20, 2009 to April 5, 2010 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. Jurisdiction of the appeal has since been transferred to the Hartford, Connecticut RO. FINDINGS OF FACT 1. From April 6, 2010 to July 7, 2011, the preponderance of the evidence shows that the Veteran's PTSD occurred with occupational and social impairment with occasional decrease in work efficiency due to symptoms of depressed mood, sleep impairment, increased daytime fatigue, and anxiety. 2. From July 8, 2011 to October 22, 2017, the preponderance of the evidence shows that the Veteran's PTSD occurred with occupational and social impairment with reduced reliability and productivity due to symptoms of difficulty in adapting to stressful circumstances, difficulty in adapting to work, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, flattened affect, panic attacks more than once a week, 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), anxiety, chronic sleep impairment, depressed mood, mild memory loss, and suspiciousness. 3. Since October 23, 2017, the preponderance of the evidence shows that the Veteran's PTSD occurred with total occupational and social impairment, due to such symptoms of suicidal ideation, dissociative thoughts, and reduced support system. 4. From April 6 2010 to July 7, 2011 the Veteran's right foot disability manifested with moderate symptoms such as foot pain requiring injections. 5. Since July 8, 2011, the Veteran's right foot disability manifested with moderate symptoms such as constant right foot pain with difficulty pivoting, walking, climbing steps, pain on use of the right foot, pain on manipulation, and functional impairment of decreased mobility and ambulation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD (claimed as anxiety disorder), from April 6, 2010 to July 7, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, DC 9411 (2017). 2. The criteria for a rating in excess of 50 percent for PTSD (claimed as anxiety disorder), from July 8, 2011 to October 22, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, DC 9411 (2017). 3. The criteria for a rating of 100 percent for PTSD (claimed as anxiety disorder), since October 23, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, DC 9411 (2017). 4. The criteria for a 10 percent rating for residuals of right foot cubital fracture with arthroplasty 4th digit, from April 6, 2010 to July 7, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, 4.10, 4.40, 4.45, 4.59, DC 5284 (2017). 5. The criteria for a rating in excess of 10 percent for residuals of right foot cubital fracture with arthroplasty 4th digit , since July 8, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, 4.10, 4.40, 4.45, 4.59, DC 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by applying the criteria set forth in the 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. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2017). Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. A. PTSD (claimed as anxiety disorder) The Veteran's PTSD is rated under 38 C.F.R. 4.130, Diagnostic Code (DC) 9411. Currently, he is assigned a 30 percent rating from April 6, 2010 to July 7, 2011, and a 50 percent rating since July 8, 2011. The Veteran was initially granted service connection for his PTSD in an August 2010 rating decision and assigned a disability rating of 30 percent effective April 6, 2010. The Veteran filed a notice of disagreement in July 2011. In June 2016, the Decision Review Officer (DRO) increased the Veteran's disability rating for his PTSD to 50 percent effective July 8, 2011. The DRO decision was a partial grant of benefits sought on appeal; as such, the issue of an increased disability rating for PTSD since April 6, 2010 is currently before the Board. Under this formula, a 30 percent rating is assigned for 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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 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. A 70 percent disability rating is 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 that is 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. A 100 percent disability rating 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; 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 name. The criteria listed in the General Rating Formula for Mental Disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). In other words, the rating criteria are inherently broad in terms of symptoms that may be associated with a service-connected psychiatric disability. The rating is to be assigned not solely on the presence or absence of particular symptoms, but rather the frequency, severity, and duration of such symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (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 on the basis of social impairment. 38 C.F.R. §4.126(b). 1. PTSD from April 6, 2010 to July 7, 2011 VA treatment records show that the Veteran has been treated for mental health symptoms related to anxiety and PTSD and was given a dual diagnosis in June 2010. In July 2010, the Veteran was afforded a Mental Status Examination. The Veteran reported symptoms of depressed mood, sleep impairment, increased daytime fatigue, and anxiety. The Veteran reported that he is not debilitated in his job and is only bothered at night or when he is driving. He said, "I can function fine." He was in the process of divorcing his wife of 19 years and currently had a girlfriend with whom he said the relationship was good. During the period from April 6, 2010 to July 7, 2011, there is no evidence of impairment of thought process or communication, delusions, hallucinations, suicidal or homicidal thoughts, memory loss, speech deficit, impaired impulse control, or panic attacks. The Board finds that a higher evaluation of 50 percent is not warranted for the period from April 6, 2010 to July 7, 2011 as there is no probative evidence that the PTSD manifested 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; difficulty in establishing and maintaining effective work and social relationships. As such, as disability rating of 30 percent for PTSD is maintained for the period from April 6, 2010 to July 7, 2011. 2. PTSD since July 8, 2011. On July 8, 2011, the Veteran filed a notice of disagreement with the August 2010 rating decision. The Veteran disagreed that he was "able to engage in social activities and meet family and work demands." He reported that as a result of extremely stressful events that occurred during combat operations in Afghanistan during 2009, he has had mood disturbances that negatively impact his personal and work relationships. He reported a fear of flying, increased anxiety, and extreme difficulty in maintaining effective work and social relationships. He endorsed having few friends, recently getting a divorce, and exhibiting a "stark edginess" in the office. In December 2015, the Veteran was afforded a VA examination to assess his PTSD. The Veteran reported having the following mental health symptoms: difficulty in adapting to stressful circumstances, difficulty in adapting to work, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, flattened affect, panic attacks more than once a week, 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), anxiety, chronic sleep impairment, depressed mood, mild memory loss, and suspiciousness. Additionally, the Veteran reported the need to avoid crowds, people, guns, loud noises, travelling, and war movies. PTSD was confirmed with positive diagnostic criterion endorsed in each section, A through H, of the PSTD diagnostic assessment questionnaire. In October 2017, the Veteran was administered an addendum PTSD disability benefits questionnaire. See October 2017 VA Form 21-0960P-3. The examiner, clinical psychologist Dr. AM, opined that the Veteran suffers from complex PTSD that is chronic, severe, and debilitating. She noted that the Veteran experienced dissociative episodes and a deterioration of his support system. The examiner noted that the Veteran's symptoms had worsened since the December 2015 VA examination and was concerned that without help, the Veteran was at risk for taking his own life. The Board finds that the evidence throughout the period from July 8, 2011 to October 22, 2017 does not show that the Veteran's condition more nearly approximates a rating criteria for a 70 percent evaluation for his PTSD. Based on the December 2015 VA examination, the Veteran exhibits symptoms of difficulty in adapting to stressful circumstances, difficulty in adapting to work, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, flattened affect, panic attacks more than once a week, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, anxiety, chronic sleep impairment, depressed mood, mild memory loss, and suspiciousness; however, he is able to manage his finances, has intact judgment, and is able to maintain employment. The Veteran's PTSD does not resemble occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Board finds that the evidence throughout the period on appeal shows that the Veteran's condition more nearly approximates the above rating criteria for a total, 100 percent evaluation for the period of since October 23, 2017. There is a medical opinion from October 2017 that indicates the Veteran's PTSD is chronic and has worsened since his December 2015 VA examination. Since October 23, 2017, the Veteran has exhibited total occupational and social impairment. The Veteran currently exhibits symptoms of dissociative thought and there is a concern for potential suicidal ideation. The Veteran reports significant difficulties at work due to his fear of flying, anxiety, and has difficulties with both his personal and professional relationships. He was in persistent danger of hurting himself or others. As such, a total evaluation is warranted. B. Right Foot Disability The Veteran's right foot disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284. Currently, he is assigned a noncompensable rating from April 6, 2010 to July 7, 2011, and a 10 percent rating since July 8, 2011. Under the general schedule, such other foot injuries are rated at 30 percent if severe, 20 percent if moderately severe, and 10 percent if moderate. With actual loss of use of the foot, the injury is rated at 40 percent. The Veteran was initially granted service connection for his right foot disability in an August 2010 rating decision and assigned a noncompensable disability rating effective April 6, 2010. The Veteran filed a notice of disagreement in July 2011. In June 2016, the Decision Review Officer (DRO) increased the Veteran's disability rating for his right foot disability to 10 percent effective July 8, 2011. The DRO decision was a partial grant of benefits sought on appeal; as such, the issue of an increased disability rating for a right foot disability since April 6, 2010 is currently before the Board. 1. Residuals of right foot cubital fracture with arthroplasty 4th digit (claimed as right foot injury), from April 6, 2010 to July 7, 2011. In June 2010, the Veteran was afforded a VA examination for his right foot disability. The examiner noted that indicated that the Veteran used a cane for prolonged walking. There was no evidence of painful motion, swelling, instability, weakness, or abnormal weight-bearing. X rays revealed no fractures. Arthroplasty of the 4th digit was noted and soft tissues were normal. VA treatment records indicate that the Veteran sought treatment for pain and difficulty with running. Dr. JF confirmed vertical fracture through the mid portion of the cuboid with no significant displacement. The Veteran reported improvement of symptoms with an injection of the lateral Lisfranc joint. The Board finds that the evidence throughout the period on appeal shows that the Veteran's condition more nearly approximates the criteria for a 10 percent rating for the Veteran's right foot disability for the period from April 6, 2010 to July 7, 2011. The Veteran has mild to moderate symptoms of foot pain, but significant enough to require treatment with an injection. The record does not indicate that there are symptoms that are moderately severe in order to warrant a 20 percent disability rating for the period from April 6, 2010 to July 7, 2011. 2. Residuals of right foot cubital fracture with arthroplasty 4th digit (claimed as right foot injury) since July 8, 2011. In January 2016, the Veteran was afforded a VA examination for his right foot disability. The Veteran reported constant right foot pain with difficulty pivoting, walking, climbing steps, pain on use of the right foot, and pain on manipulation. He stated that he has functional impairment because he cannot walk long distances or run due to right foot pain. There was no objective evidence of marked deformity or pronation. The Board finds that the evidence throughout the period on appeal shows that the Veteran's condition more nearly approximates a 10 percent disability rating for the Veteran's right foot disability for the period since July 8, 2011. The Veteran's constant foot pain, frequent flare-ups, pain on movement, and the inability to walk long distances, most closely resemble a moderate severity to the Veteran's right foot disability. These symptoms are not moderately severe or severe; and therefore, a 20 percent rating for the Veteran's right foot disability is not warranted. ORDER Entitlement to a disability rating in excess of 30 percent for PTSD from April 6, 2010 to July 7, 2011, is denied. Entitlement to a disability rating for PTSD in excess of 50 percent from July 8, 2011 to October 22, 2017, is denied. Entitlement to a disability rating for PTSD of 100 percent since October 23, 2017, is granted. Entitlement to a 10 percent disability rating for a right foot disability from April 6, 2010 to July 7, 2011, is granted. Entitlement to a disability rating in excess of 10 percent for a right foot disability since July 8, 2011 is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs