Citation Nr: 1759948 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 14-07 074A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 30 percent from February 10, 2011 to November 14, 2016 for service-connected posttraumatic stress disorder (hereinafter PTSD). 2. Entitlement to a rating in excess of 70 percent from November 15, 2016 for service-connected PTSD. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Teague, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Army from November 1996 to November 1999 and from January 2010 to February 2011. The Veteran was awarded the Army Commendation Medal and Iraq Campaign Medal, among other decorations, for this service. These matters come to the Board of Veterans' Appeals (Board) from an August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction over the claim now resides with the Montgomery, Alabama RO. In August 2016, the Board remanded the Veteran's appeal for an increased rating for the service-connected PTSD for additional development. Specifically, the claim was remanded for a VA examination which the Veteran underwent in November 2016. The Board finds there has been substantial compliance with its August 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) In June 2017, the Veteran initiated a claim for PTSD through the Integrated Disability Evaluation System (IDES). The IDES program is a joint program between VA and the Department of Defense, and is part of VA's pre-discharge system that allows service members to file claims for disability compensation prior to separation or retirement from active duty or full-time National Guard or Reserve duty. When service members enroll in IDES, they are evaluated for continued fitness for duty, and if found medically unfit for duty, IDES provides a proposed VA disability rating. The Board does not have jurisdiction over these decisions until a final decision within IDES is promulgated. See 38 C.F.R. § 12.101. In a September 2017 rating decision for IDES purposes only, the Veteran's PTSD rating was continued, as 70 percent disabling. FINDINGS OF FACT 1. For the period from February 10, 2011 to November 14, 2016, the Veteran's PTSD more nearly approximated symptoms productive of 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 hypervigilance, startle response, crowd avoidance, and nightmares. 3. Since November 15, 2016, the Veteran's PTSD more nearly approximated symptoms productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to the following symptoms: nightmares, intrusive memories, social isolation, near-continuous panic, anger, and difficulties with work relationships. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent from February 10, 2011 to November 14, 2016, for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a disability rating in excess of 70 percent since November 15, 2016, for service-connected PTSD have not been met. 38 U.S.C.§§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veteran has not 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). II. Increased Rating for PTSD The Veteran's appeal for higher initial ratings for PTSD stems from the initial grant of service connection and assignment of a 0 percent rating, effective February 10, 2011. See 38 C.F.R. § 4.130, Diagnostic Code 9411. In November 2016, the RO increased the initial PTSD rating to 30 percent for the period from February 10, 2011 to November 14, 2016 and to 70 percent from November 15, 2016. Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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.A. § 1155 (West 2014); 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. 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; 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. 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. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC or Code) 9411. Under this General Rating Formula, a 30 percent evaluation is provided 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 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 rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 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); inability to establish and maintain effective relationships. Id. Finally, a total, or 100 percent, rating is awarded on evidence of 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. Id. 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. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's 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. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "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"). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the current appeal. Staged Rating: February 10, 2011 to November 14, 2016 For the period from February 10, 2011 to November 14, 2016, the Board finds that the Veteran's psychiatric symptoms meet or more nearly approximate the criteria for a 30 percent rating, but not higher. The evidence of record for this period reflects that the Veteran's PTSD was productive of 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 hypervigilance, difficulty paying attention, startle response, muscle contractions when exposed to unexpected stimulus, crowd avoidance, and possible nightmares. In January 2010, the Veteran filed a pre-discharge compensation claim for an anxiety disorder and sleep disorder. In October 2011, the Veteran filed a supplemental claim for PTSD. In May 2011, the Veteran had positive VA screenings for PTSD and depression. He reported nightmares, avoidance, hypervigilance, and detachment. In July 2012, the Veteran underwent a VA examination to determine the nature and etiology of any mental health disabilities. The Veteran reported nervousness, insomnia, edginess, and over alertness. The Veteran further reported difficulties sleeping and going back to sleep. The VA examiner diagnosed the Veteran with caffeine intoxication and dyssomnia, not otherwise specified. The VA examiner indicated that a mental condition was formally diagnosed, but that symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. In October 2012, the Veteran reported being isolated. He reported intrusive thoughts from Iraq and feeling jumpy when he heard loud noises. He denied suicidal and homicidal ideations and that he continued to work and attend drill. In August 2012, the RO granted service connection for dyssomnia, not otherwise specified with caffeine intoxication, evaluated at 0 percent disabling. This appeal followed. The Veteran scored a 62 on a December 2012 PTSD checklist. He reported disturbing memories, dreams, loss of interest in activities, emotional numbness, and difficulty sleeping. In January 2013, the Veteran reported his PTSD symptoms remained the same. He reported he was doing well and denied suicidal and homicidal ideations. The VA psychologist noted the Veteran was well groomed, calm, his judgement was intact, thought process was linear, and he had no overt psychosis. In January 2014, the Veteran denied depression but did report he kept to himself and did not discuss his feelings with others. The Veteran reported continued insomnia and denied any suicidal or homicidal ideations. The VA treating psychologist noted the Veteran was fully oriented, cooperative, dressed and groomed within normal limits, his mood was anxious, speech was clear, and thought content was logical. In February 2014, the Veteran reported insomnia which he attributed to a caring for a sick child and making up military drill requirement. He reported less frequent depression and denied any suicidal or homicidal ideations. The VA examiner noted the Veteran's mood was anxious, he was cooperative, attentive, his speech was normal volume and clear, and his thought process was linear and logical. In October 2014, the Veteran reported increased PTSD symptoms with isolation, avoidance of public places, increased hypervigilance, irritability, and nightmares twice a week. The VA examiner diagnosed the Veteran with anxiety and probable PTSD. The Veteran's thought process was logical, he was fully oriented, judgement was intact, he was restless, and his speech was normal volume and clear. In August 2015, the Veteran reported he was off his medication and felt moody, was having nightly nightmares, but denied homicidal or suicidal ideations. The Veteran was clean, cooperative, alert, oriented, with a euthymic mood. His speech was a normal rate and tone, affect appropriate, he was appropriately oriented, and had no evidence of psychotic symptoms. The Veteran was fully oriented, judgment was intact, insight was present, and speech rate was normal and clear. In April 2016, the Veteran the Veteran provided testimony in support of his claim. He reported an increase in symptoms that included nightmares, anger, being bothered by loud noises, avoiding crowds, and slight memory loss. The Veteran also reported seeking mental health treatment through the VA. He further stated that work was difficult because of the loud noises and large groups of people. The Veteran also reported missing work because of his PTSD and that he had exhausted his sick leave. Evaluating the evidence in light of the above rating criteria reflects that throughout the appeal period, the Veteran's symptoms do not demonstrate 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. 38 C.F.R. § 4.130. During this appeal period, the Veteran reported an increased startle response, sleep disturbances, some impact on work attendance and nightmares about bi-weekly. The Veteran at times denied any depression and always denied suicidal and homicidal ideations. At no point during the appeal period did the Veteran report or was he noted to have flattened affect; circumstantial, circumlocutory, or stereotyped speech; 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; or impaired abstract thinking. Furthermore, the symptoms the Veteran had, such as nightmares, avoidance, hypervigilance, slight memory loss were not so frequent or disabling to more nearly approximate occupational and social impairment with reduced reliability and productivity. Rather, early on the symptoms were such that the VA examiner indicated he did not even need medication. Subsequent records reflect increased symptoms and treatment with medication but still indicate the Veteran continued to work. In April 2013 he reported having more good days than bad days and having positive coping skills. In 2012 he reported he was dating and also described getting along well with his son and daughter and parents. He also played on a softball team with some friends. During that examination he reported he was employed, had not been reprimanded and consistently had good performance reviews and also indicated he got along well with supervisors and coworkers. Even in 2014 he still reported having a good relationship with his parents, his brother and described a willingness to socialize but reported he did not have any close friendships. At that time he still had a job. The records in 2015 further reflect he got married during this period. Thus the totality of the evidence does not reflect the symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity. The Board has also considered whether additional Diagnostic Codes are applicable for this period. The evidence of record indicates that the Veteran's service-connected PTSD disability was primarily manifested by symptoms of hypervigilance, startle response, crowd avoidance, and nightmares. There is no medical or lay evidence of mental health symptoms that would not result in the prohibition of pyramiding other Diagnostic Codes. The November 2016 VA examiner also found that the Veteran did not have any other psychiatric diagnosis other than PTSD. Furthermore, the Veteran's PTSD symptoms are clearly accounted for in the 30 percent rating pursuant to DC 9411. Thus, DC 9201 to 9410 and 9412 to 9521 are not for application. Accordingly, the Board concludes that the Veteran's PTSD was 30 percent disabling, but no higher, for the period from February 10, 2011 to November 14, 2016. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Staged Rating: Since November 15, 2016 For the period since November 15, 2016, the Board finds that the Veteran's PTSD symptoms meet or more nearly approximate the criteria for a 70 percent rating, but not higher. The evidence of record reflects that the Veteran's PTSD was productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to the following symptoms: depressed mood; anxiety; panic attacks; chronic sleep impairment; mild memory loss; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. The Veteran received another VA examination in November 2016. He reported nightmares, distressing memories, isolation, difficulties at work, and anger. The Veteran endorsed a depressed mood, anxiety, near-continuous panic, difficulty establishing work relationships, impaired impulse control, and spatial orientation. The VA examiner diagnosed the Veteran with PTSD and indicated it caused occupational and social impairment with reduced reliability and productivity. The VA examiner noted the Veteran seemed nervous with a reserved, blunted affect. His thought process was logical and he denied suicidal or homicidal ideations. The VA examiner indicated that the Veteran's diagnosis should have been PTSD in 2012 and that the previous diagnosis of dyssomnia with caffeine intoxication was not supported by any rationale. In August 2017, the Veteran underwent a Physical Evaluation Board (PEB) and was found unfit to continue military service due to his PTSD. He filed a VA/DOD Joint Disability Evaluation Board Claim. In a September 2017 rating decision, the RO proposed that for Integrated Disability Evaluation System (IDES) purposes, a 70 percent evaluation be assigned for PTSD. Based on the foregoing, the Board finds that the Veteran's documented PTSD symptoms (e.g. depressed mood; anxiety; panic attacks; chronic sleep impairment; mild memory loss; impairment of short-and long-term memory; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships) were not demonstrated to be so frequent and disabling as to result in total occupational and social impairment. The Veteran did not report and the VA examiner's did not find the Veteran's PTSD symptoms interfered with his routine activities. At the November 2016 VA examination, the Veteran reported nightmares, distressing memories, isolation, difficulties at work, and anger. The Veteran endorsed a depressed mood, anxiety, near-continuous panic, difficulty establishing work relationships, impaired impulse control, and spatial orientation. The VA examiner noted the Veteran seemed nervous with a reserved, blunted affect. However, his thought process was logical and he denied suicidal or homicidal ideations. The Veteran was still working. At no point during the entire appeal period did the Veteran report or medical professionals note 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); memory loss for names of close relatives, own occupation, or own name. The record also reflects that despite his symptoms he still had some relationships with family members. Although relationships were described as rocky and having friction, he still was able to maintain some social functioning. Likewise, while he reported some interpersonal strain on the job and missed work, he still was working until February 2017. The Board has also considered whether additional Diagnostic Codes are applicable for this period. The evidence of record indicates that the Veteran's service-connected PTSD disability was primarily manifested by the following symptoms: depressed mood; anxiety; panic attacks; chronic sleep impairment; mild memory loss; impairment of short-and long-term memory; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. There is no medical or lay evidence of mental health symptoms that would not result in the prohibition of pyramiding other Diagnostic Codes. Furthermore, the Veteran's PTSD symptoms are clearly accounted for in the 70 percent rating pursuant to DC 9411. Thus, DC 9201 to 9410 and 9412 to 9521 are not for application. Accordingly, the Board concludes that the Veteran's PTSD was 70 percent disabling, but no higher, for the period since November 15, 2016. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Additional Considerations The Board has considered the Veteran's statements of record during each period of the appeal that a higher disability rating is warranted for his psychiatric disability. The Veteran is competent to report symptomatology relating to his PTSD because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Board finds that the question of the severity of his PTSD is medically complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). To the extent that the Veteran alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the aforementioned examiners' findings that were made during each staged rating period of the appeal. Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners during each period of the appeal and provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 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). ORDER Entitlement to a rating in excess of 30 percent prior to November 15, 2016 for service-connected PTSD is denied. Entitlement to a rating in excess of 70 percent since November 15, 2016 for service-connected PTSD is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs