Citation Nr: 1754860 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-12 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Army from June 1964 to November 1983, including combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal and a Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDING OF FACT Throughout the appeal the Veteran's PTSD has been manifested by symptoms including anxiety, irritability, and sleep impairment which, when considering the frequency, duration and severity of these symptoms, results in no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Throughout the appeal, the criteria for a rating in excess of 50 percent for PTSD have not been met or approximated. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.4, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2016); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. 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 that 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during the periods of remission. The evaluation must be based on all the evidence that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran contends that his PTSD has caused major impairment in several areas, including work, judgment, and mood. He has asserted that this treatment notes reflect a condition entitling him to a 100 percent disability rating. By way of history, the Veteran was granted entitlement to service connection for PTSD and was assigned a 50 percent disability rating as of May 9, 2012. In December 2014 the Veteran instituted the present increased rating claim. Therefore, he has had a 50 percent disability rating throughout the duration of the appeal. The Veteran's service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides: A 50 percent disability rating is warranted when the Veteran experiences 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. Id. A 70 percent disability rating is warranted when the Veteran experiences 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Veteran's service-connected PTSD is rated as 50 percent disabling. Therefore, to warrant a higher disability rating the evidence must show occupational and social impairment with deficiencies in most areas. In January 2014 the Veteran had an evaluation with a private treatment provider. At the time he asserted that he had severe symptoms of forgetfulness, fatigue, anxiety, depression, irritability, and poor frustration tolerance. The Veteran reported having poor sleep with nightmares as well. The examiner diagnosed the Veteran with PTSD, combat-related. In March 2014 and December 2014 the Veteran's private treatment provider submitted letters indicating that the Veteran was severely suffering from PTSD that was combat-related, and that he had nightmares and flashbacks despite mental health medication and psychotherapy. In March 2015 the Veteran underwent VA examination in connection with his claim, at which time he was diagnosed with PTSD. The VA examiner noted that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. During the interview the Veteran reported that he had been married four times but that he had good family relations overall. He asserted that he had "bad symptoms" since returning from Vietnam and that in spite of medication he had symptoms of intrusive thoughts, flashbacks, insomnia, anxiety, irritability, anger outbursts, nightmares, emotional detachment, depression, mood swings, and hypervigilance. During the mental status examination the Veteran was cooperative but had a flat affect and depressed mood. He appeared tearful but was able to maintain eye contact. After the evaluation the VA examiner recommended that the Veteran seek follow-up treatment but noted that the Veteran's PTSD disability had not changed despite his subjective allegations of increased depression and mood swings. The following month the Veteran had a private treatment evaluation. The examiner noted that the Veteran was engaging during the interview but that he was noticeably anxious and agitated when discussing his Army service. The Veteran asserted that he had difficulty describing his experiences in service, which affected his prior jobs and personal relationships and currently affected his sleep and frustration tolerance. The Veteran reported that he could still see, hear, and smell wounded soldiers. He asserted that he had nightmares where he woke up covered in sweat and that he fought in his sleep, and was hypervigilant with anger issues. The Veteran indicated that he limited his interactions to family and close friends and that he did not talk to others because they did not understand what he was going through. Based on psychological testing the examiner noted that the Veteran was likely to have difficulty with instability, aggressiveness, poor anger control, suspicions of harm or deceit by others, grudge-bearing, or being unforgiving and questioning of trustworthiness. The examiner continued that the Veteran struggled a great deal due to overwhelming anxiety, suspiciousness, paranoia, hypervigilance, exaggerated startle responses, impaired judgment, and poor concentration. The examiner noted that these symptoms complicated his inability to establish and maintain effective relationships, and concluded that he met all the criteria for PTSD in the severe range. More recently in January 2017 the Veteran underwent VA examination in connection with his claim, at which time he was diagnosed with PTSD. The VA examiner opined that he had occupational and social impairment with reduced reliability and productivity. The Veteran reported symptoms of anxiety, depression, intrusive thoughts, flashbacks, insomnia, irritability, anger outbursts, nightmares, mood swings, and hypervigilance despite medication and treatment. During the mental status examination the Veteran had a flat affect and depressed mood, and he appeared anxious but had a normal thought process. He appeared alert and oriented, and his hygiene and grooming were adequate; he specifically denied having suicidal ideations or homicidal ideations. At the conclusion of the examination, the VA examiner indicated that there was no change in the Veteran's PTSD diagnosis. Throughout the duration of the appeal, the Board finds that the Veteran's symptoms are consistent with a 50 percent disability rating. The Veteran credibly reported symptoms of depression, anxiety, irritability, sleep impairment with nightmares, intrusive thoughts, and hypervigilance. His anxiety, irritability and isolationism caused some difficulty establishing and maintaining effective work and social relationships as evidenced by his increased frustration tolerance. However, the Board finds that the severity, duration and frequency of the Veteran's symptoms have not produced functional impairment that has more nearly approximated the criteria for a 70 percent disability rating for any time during the appeal period. The Veteran has reported some increased frustration, but there is no evidence that he has ever gotten into any verbal or physical altercations with others. During the mental status examinations the Veteran has always been alert and oriented, and he was able to express himself well within reason. As it pertains to occupational functioning, the Veteran reports that his inability to express himself has caused trouble at work, but there is nothing to suggest that he has lost a job due to his symptoms. As it pertains to social functioning, the Veteran reported that he isolates from others and that he does not tell others about his symptoms, but he reported that he mostly has good familial relationships, and he has been married to the same woman for over 40 years. The private treatment provider indicated that the Veteran's limited social functioning has permeated other areas of his life, but there is no lay or medical evidence of any additional impairment involving suicidal or homicidal ideation, speech, thought process, impulse control, orientation, hygiene, communication or inappropriate behavior. In fact, the Veteran has always denied having any suicidal or homicidal ideation. Additionally, when considering the overall disability picture, the VA examiner indicated in both reports that the Veteran's symptoms were productive of moderate impairment and, more specifically, opined that the Veteran's PTSD symptomology was productive of occupational and social impairment with reduced reliability and productivity. While these opinions are not binding on the Board, these opinions clearly hold probative value as they are rendered by an expert in determining social and industrial impairment due to an acquired psychiatry disorder. In the opinion of the Board, the VA examiner's opinions are entirely consistent with the overall disability level when considering the severity, duration and frequency of the Veteran's symptoms. As such, the Board finds that the preponderance of the evidence does not suggest that the functional impairment stemming from the Veteran's PTSD symptoms more nearly approximate the criteria for a 70 percent disability rating. To the contrary, the evidence of record indicates that the Veteran was cooperative and alert. He denied having hallucinations or suicidal and homicidal ideation. There is nothing to suggest that he is unable to perform his activities of daily living independently; the examiners have even indicated that the Veteran was able to manage his finances independently, and there was nothing to suggest that he has deficits in his activities of daily living. The Veteran himself has never indicated that his is precluded from performing his activities of daily living. The Board acknowledges the assertions of the Veteran that his PTSD is more severe than currently rated. The Veteran is competent to report matters that he experiences or observes, and the Board has found that his report of symptoms is credible and competent evidence. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, in the absence of evidence of specialized medical training or expertise, which has not been shown, his personal opinion regarding findings from mental status examinations are greatly outweighed by the VA examiner's opinions as she has greater expertise and training to evaluate the nature and etiology of an acquired psychiatric disorder. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a higher disability rating, that doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased disability rating in excess of 50 percent for service-connected PTSD is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs