Citation Nr: 1800074 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-11 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that denied a disability rating in excess of 50 percent for PTSD. FINDING OF FACT The Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity, but has not caused either occupational and social impairment with deficiencies in most areas or total social and occupational impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155 , 5103A , 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. The Veteran chose not to present testimony at a Board hearing. The Veteran was afforded a VA examination in connection with his claim and neither the Veteran, nor his representative objected to the adequacy of the examination. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Increased Rating The Veteran filed a claim seeking an increased disability rating in August 2011. In support of this claim, the Veteran asserted that his PTSD symptoms were worse. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.S. § 1155; 38 C.F.R. Part 4. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the several grades of the disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. PTSD is evaluated under either the General Rating Formula for Mental Disorders. 38 C.F.R § 4.130, Diagnostic Codes 9201-9440 (2016). Pertinent to this appeal, the General Rating Formula for Mental Disorders rates PTSD as follows: 50 percent: 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 70 percent: 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. 100 percent: 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; and memory loss for names of close relatives, for the veteran's own occupation, or own name. 38 C.F.R § 4.130, Diagnostic Code 9411 General Rating Formula for Mental Disorders. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Prior to January 2012, the Veteran was not receiving mental health treatment for approximately one and a half years. During that period of time, he received psychiatric medications through his primary care physician, who encouraged him to return to treatment due to increased sleep disturbance. The Veteran was afforded a VA examination in February 2012. The Veteran was noted to have problems with his primary support system and problems related to the social environment. The Veteran was found to experience occupational and social impairment with reduced liability and productivity. The examiner's clinical findings note good family relationships with a tendency to "stay pretty close to home," and a desire to avoid being around a lot of people. Additionally, the examiner notes the Veteran has received mental health treatment "on and off" for many years with some benefit from medication. The Veteran was also noted to have a long history of alcohol use and overuse for self-medication purpose, reportedly slowing down in the prior two years. The Veteran's PTSD symptoms included anxiety, chronic sleep impairment, obsessional rituals which interfere with routine activities, hypervigilance, poor concentration, flashbacks when hearing sudden loud noises, such as fireworks or thunder storms, isolating from others, avoiding large crowds and reminders of Vietnam, and reduced enjoyment of social activities. 2012 treatment records indicate the Veteran was experiencing nightmares, a desire to spend more of his time at home, and sleep disturbance with episodes of awaking in sweats and talking in his sleep about in-service events. The Veteran had no recollection of such, but his spouse reported the incidents. The Veteran reported no auditory hallucinations, no suicidal or homicidal ideations, no racing thoughts, no pressured speech, and no flashbacks or nightmares. His judgment and insight were adequate and his thought process was logical and goal-directed. Toward late 2012, the Veteran reported possible visual hallucinations, sometimes "feeling like he is seeing people or has a vision of someone talking to him." These were associated with four to five hours of sleep and waking with the vision, which may or may not have been part of a dream. The Veteran was also noted to be mildly anxious with a mostly euthymic mood in no acute distress. His insight was noted as limited and he did have a tendency to isolate himself. The Veteran was given new medication in December 2012. 2013 treatment records indicate the Veteran had some difficulty sleeping with some days better than others. His medications helped with irritability and bad dreams. He reported no suicidal or homicidal ideations, no auditory or visual hallucinations, no racing thoughts, no pressured speech, and no flashbacks or nightmares. His judgment and insight were adequate and his thought process was logical and goal-directed. 2014 treatment records indicate that the Veteran was sleeping better. He preferred spending time at home and without many people, but was rarely alone as his wife or a neighbor was most often with him. By late 2014 treatment notes indicate that the Veteran was feeling better, was experiencing increased energy, and had been more active outside. Throughout 2014, suicidal and homicidal ideations were negative. His sleep averaged six to seven hours. The Veteran was noted to have a bright, euthymic affect. He reported no auditory or visual hallucinations, no racing thoughts, no pressured speech, and no flashbacks or nightmares. His judgment and insight were adequate and his thought process was logical and goal-directed. During this period, the Veteran was receiving treatment for vocal cord cancer. His medication dosage was also increased during this time. VA treatment records from 2015 indicate the Veteran spent a lot of time at home by himself and was not interested in leisure activities. The Veteran experienced disturbed sleep, which his spouse described as restless and included some talking. At times, he would awake sweating. There was no report of racing thoughts, pressured speech, auditory hallucinations, suicidal or homicidal ideations, flashbacks, or nightmares. The Veteran did note that he refrains from watching the news, but began drinking again in early 2015, which caused some tension in his family. In late 2015, the Veteran reported a visual hallucination that involved seeing a small child. 2016 treatment records indicate the Veteran was spending most of his time at home and had no interest in leisure activities. He reported occasional nightmares early in 2016, but mid-way through the year he did not experience such. There was no report of racing thoughts, pressured speech, auditory or visual hallucinations, suicidal or homicidal ideations, or flashbacks. His judgment and insight were adequate and his thought process was logical and goal-directed. In 2017, the Veteran was noted to have occasional nightmares. He demonstrated a full range of affect-smiling, laughing, and tearful, though he would not speak about what was upsetting. This upsetting moment was later revealed as related to concerns about somatic medical problems. Treatment notes indicate the Veteran experienced no racing thoughts, pressured speech, auditory or visual hallucinations, suicidal or homicidal ideations, nightmares, or flashbacks. His judgment and insight were adequate and his thought process was logical and goal-directed. Records also indicate the Veteran tends to sit outside of the home, which helps him relax, and that family members visit him consistently. After reviewing the medical evidence of record, the Board finds a disability rating in excess of 50 percent is not warranted. The Veteran's treatment records do not document occupational and social deficiencies in most areas. Rather, the treatment records indicate the Veteran's most significant deficiency was a tendency and desire to remain at his home. There is some indication that the Veteran isolated from his friends and family, but also indication that the Veteran spent time with friends and family on an individual basis. Additionally, there is no indication that the Veteran has an inability to establish or maintain relationships. The most significant relationship difficulty arose when the Veteran returned to drinking in 2015. Further, the records do not indicate depression affecting an ability to function, or neglect of personal appearance or hygiene. Additionally, the Veteran is consistently evaluated with no deficiencies in judgment or thinking, and there is no indication of suicidal ideations or behaviors. The Veteran did reported experiencing occasional episodes of visual hallucinations, nightmares, and flashbacks, however, these seemed to diminish with medication adjustment and no significant impact on the Veteran's functioning was noted. The Veteran's spouse submitted a 2012 statement indicating that he suffers from nightmares and significant stress. The Veteran's spouse also stated that the Veteran does not want to leave the house or be in a crowd of people. If he needs to go anywhere, the Veteran's spouse drives as he is nervous in a vehicle with others. Additionally, the Veteran experiences flashbacks when he hears excessive loud noises, such as a firecracker, talks in his sleep and wakes during the night reliving the war, and only sleeps for a few hours at a time. The Veteran's spouse also noted that the Veteran suffers from physical medical conditions and limitations, which add to his stress and depressive feelings. The Board finds the Veteran's spouse is competent to report what comes to her through her senses and has credibly done so. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran's medical records from 2012 certainly indicate sleep disturbance, visual hallucinations, isolation, and anxiety. However, these symptoms did not rise to the level of impairment in most areas of social and occupational functioning. The Veteran was noted to be only mildly anxious, and, on other encounters, was noted to have an euthymic affect. Notably, the Veteran received a VA examination in 2012 and the examiner found that the Veteran demonstrated reduced liability and productivity in the areas of social and occupational impairment. Further, treatment records from December 2012 indicate that the Veteran's medication was adjusted and by 2013 he began to experience improvement in his symptoms, particularly related to his sleep and nightmares. The statement of the Veteran's spouse alone is not sufficient to warrant a disability evaluation in excess of 50 percent. Additionally, the Veteran has consistently been assigned global assessment of functioning (GAF) scores in the mid-50s which is indicative of the mental health professionals assessing the Veteran's psychiatric symptomatology as moderate. A 55 was assigned following the Veteran's VA examination and 55 were also recorded in multiple VA treatment records. Accordingly, a disability evaluation in excess of 50 percent for PTSD is denied. ORDER A disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs