Citation Nr: 1759943 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 06-28 913 DATE THE ISSUE Entitlement to a disability rating in excess of 50 percent prior to April 13, 2012 and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD). ORDER The claim of entitlement to a disability rating of 70 percent for PTSD prior to April 13, 2012, is granted. The claim of entitlement to an evaluation in excess of 70 percent for PTSD is denied. FINDING OF FACT Throughout the entire period on appeal, the Veteran's PTSD manifested with occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood, but without total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent prior to April 13, 2012, for PTSD have been met. 38 U.S.C. §§ 1154(a), 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1967 to February 1969 in the United States Army, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, increased the disability evaluation for the Veteran's PTSD from 30 to 50 percent disabling, effective as of May 3, 2005.. In a December 2014 rating decision, the Veteran's disability evaluation for his PTSD was increased to 70 percent, effective as of April 13, 2012. The Veteran testified at a hearing before a Veterans Law Judge with the Board in August 2011. A transcript of that hearing has been associated with the claims file. In May 2017, the Veteran was notified that the Judge that performed his August 2011 hearing was no longer employed by the Board. The Veteran was given the option to testify at a new hearing, but in June 2017, the Board was notified that the Veteran did not desire to appear for a new hearing. VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Compliant VCAA notice was provided in June 2005. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. VA examinations have been conducted and any necessary opinions obtained. 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 duty to assist argument). The Board remanded the issue for further development in September 2011. The actions requested in the prior remand have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The case has been returned to the Board for appellate review. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Entitlement to a disability rating in excess of 50 percent prior to April 13, 2012 and in excess of 70 percent thereafter for PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 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 periods of remission. The evaluation must be based on all evidence of record 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). When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran's service-connected PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides, in part as follows: A 30 percent disability rating is warranted when the Veteran experiences 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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); inability to establish and maintain effective relationships. 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; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. In Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Prior to April 13, 2012, the Veteran's PTSD was rated at 50 percent disabling. As noted in a preceding paragraph, to receive a higher disability rating, the evidence must show occupational and social impairment, with deficiencies in most area, 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.71a. When viewed in a light most favorable to the Veteran, the Board finds that the evidence of record demonstrates that the Veteran's PTSD symptoms more closely approximated those envisioned by a 70 percent evaluation prior to April 13, 2012. A June 2005 psychiatry outpatient evaluation showed that the Veteran was very depressed. The Veteran had no history of suicidal acts, self-injurious behavior, violence, or assaulting others. The Veteran was cooperative and reasonable. He was anxious but under control. His mood was angry, dysphoric, and depressed. His affect was congruent with his mood. The Veteran had no perceptual disturbances. The Veteran's thought processes were normal and coherent and he had no unusual thought content. His speech was of normal rate and rhythm. His insight and judgment were described as good. He had passive suicidal ideation without plan. He was alert and attentive. The examiner described his attention span and concentration as distractible. His memory was intact. The examiner diagnosed chronic PTSD and dysthymia. He noted that the Veteran was no significant risk of danger to self or others. In an August 2005 VA examination, the examiner noted that the Veteran had increased depression, nightly insomnia, and hypervigilance. The Veteran experienced avoidance, irritability, depression, anxiety, fearfulness, and intrusive memories. He was isolated and entered into verbal fights. The examiner noted significant impairment in all aspects of his psychosocial function status. Mental status examination showed no formal thought disorder, but also had difficulty concentrating. He reported flashbacks. He denied any suicidal or homicidal ideation. His activities of daily living were usually within normal limits, but he did go a day or two without bathing when he was stressed or depressed. He was oriented. He had short term memory loss, but his long term memory remained intact. The examiner noted that the Veteran suffered from hypervigilant checking of his environment for safety, which is of an obsessional or ritualistic nature. The rate and flow of his speech was rather agitated. He remained relevant to logical, although he was tangential and unable to redirect. He reported panic attacks two to three times a week, lasting in duration from ten to twenty minutes. His mood was rather depressed. He had impaired impulse control, particularly exhibited in verbal arguments. He suffered from nightly insomnia. The examiner noted an increase in his PTSD symptoms and a decrease in his overall functioning on having much trouble adjusting to retirement, experiencing an increase in symptoms as he experiences news from war and has been with multiple physical limitations since his last evaluation. The examiner opined that the Veteran's service-connected PTSD is severe enough to render him unemployable. Additionally VA treatment records showed exacerbation of his PTSD symptoms, to include his insomnia, depression, irritability, intrusive memories, and feelings of helplessness. An August 2007 VA treatment record showed no suicidal or homicidal ideation. The Veteran's motor activity was unremarkable. His mood appeared depressed as manifested by appropriate affect as observed by integrated and tense body posture as manifested by normal range of movement during session. Overall affective facet observed during the session was bitterness and frustration. In a January 2011 VA treatment record, the Veteran reported anxiety. He stated that he was on edge all the time, ready to jump at everything. He also noted nightmares and intrusive memories during the day. The examiner noted goals that included limiting the startle response, controlling his anger and irritation, and normalizing his sleep. The Veteran was afforded a VA examination in July 2011. The examiner noted that the Veteran entered the outpatient PTSD treatment program in 1995 with complaints of recurrent upsetting memories of his combat experiences, unprovoked irritability, difficulty concentrating, recurrent bouts of depression, difficulty being around people, and trouble with his marriage. The Veteran worked for years in construction where his interaction with others was limited. He was forced to retire due to physical difficulties, which led to an exacerbation of his PTSD symptoms. Despite the Veteran's active participation in treatment, the examiner noted no significant or sustained change in his condition. He noted an increase in panic attacks, agitated depression followed by depression wherein he neglects his personal appearance, avoidance of social contacts, and difficulty in establishing and maintaining relationships. The Veteran was assessed for suicidal ideation despite his denial of any plan or intent. The Veteran's treatment plan consisted of supportive psychotherapy and psychopharmacology. He required several symptom reduction psychopharmacological reevaluations. During the August 2011 hearing before the Board, the Veteran reported anger and difficulty with his wife, flying off the handle, and difficulty socializing. He noted a good relationship with his two children and that he attended church. He noted verbal altercations with others. In August 2011, the Veteran's spouse wrote a letter indicating that the Veteran was angry. He was always yelling and arguing. He did not like to socialize. The Veteran was attending group therapy once every two weeks. Resolving any reasonable doubt as may arise as to the severity of disability in this case in favor of the Veteran, the Board concludes that the criteria for a 70 percent disability rating are met during this period. Although the Veteran does not present with all the symptoms provided in the criteria for a 70 percent disability rating, the Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. In any event, the Veteran did experience occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood. He did have impairment in work, family relations, thinking, and mood. His occupational and social impairment was due to symptoms such as obsessional rituals which interfere with routine activities, impaired impulse control, occasional neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances. The Veteran's occupational and social impairment was also due to avoidance, difficulty concentrating, anger, flashbacks, insomnia, and short term memory loss. The Board must then address whether the Veteran was entitled to a 100 percent disability rating at any point throughout the entire appeals period, as the assignment of a 70 percent rating prior to April 13, 2012, does not demonstrate a full grant of the benefits currently sought on appeal. To meet that criteria, the evidence must show 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; memory loss for names of closest relatives, own occupation, or own name. The Veteran was afforded a VA examination in April 2012. The examiner diagnosed chronic PTSD and bipolar disorder I, NOS (not otherwise specified), by history. The examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran had one son from his current marriage, but he had little to no contact with him. The Veteran lived with his older sister. He had limited social contacts and ongoing conflicts with his sister. The Veteran had several different jobs post-service, but with ongoing difficulties maintaining them. The Veteran denied any current substance use during the period on appeal. The Veteran had recurrent distressing dreams of the event. He had physiological reactivity on exposure to internal or external cues. The Veteran experienced avoidance and restricted range of affect. He had difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, and exaggerated startle response. The examiner also noted symptoms including depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, impairment of short- and long-term memory, circumstantial, circumlocutory, or stereotyped speech, impaired judgment, impaired abstract thinking, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. In July 2013, the Veteran reported that he was very depressed. He reported that he had difficulty sleeping, his mind raced, and he felt constant anxiety. The examiner diagnosed PTSD and MDD. The Board notes that the Veteran does not have total occupational and social impairment due to his PTSD. The Veteran did not experience 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, disorientation to time or place, or memory loss for names of closest relatives, own occupation, or own name. The VA examiner in April 2012 specifically noted no total occupational and social impairment, but rather found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran's occupational and social impairment more closely approximates the criteria for a 70 percent disability rating throughout the period on appeal. The Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Vazquez-Claudio; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). As such, the Board notes that the Veteran experiences other symptoms that are not listed in the criteria, but may reflect the severity of his PTSD. These include, but are not limited to nightmares, flashbacks, avoidance, hypervigilance, and isolation. Specifically, the Board has also considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: impaired impulse control, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. See Mauerhan, 16 Vet. App. 436. The Board recognizes that the Veteran believes he is entitled to the highest available evaluation of 100 percent for his service-connected PTSD. However, at no time during the pendency of this appeal has the Veteran submitted any evidence to demonstrate that he meets the schedular criteria for the highest available evaluation of 100 percent. Namely, he has failed to provide evidence or testimony of symptomatology of such severity to result in both total occupational and total social impairment. See 38 C.F.R. § 4.71a. As such, his lay assertions fail to demonstrate that a schedular evaluation of 100 percent is warranted at any time during the pendency of this claim. (CONTINUED ON NEXT PAGE) Based on the evidence of record, and after resolving all doubt in the Veteran's favor, the Board finds that the manifestations of the Veteran's PTSD more nearly approximate the criteria for a 70 percent disability rating, but no greater, throughout the period on appeal, and to this extent the appeal is granted. ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Patricia Veresink, Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs