Citation Nr: 1800168 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-12 671 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating in excess of 50 percent since February 29, 2012, for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Marine Corps from July 1968 to January 1970. He served in the Republic of Vietnam and his military decorations include the Combat Action Ribbon, the Purple Heart, and the Bronze Star Medal with the Combat "V." This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2013 decision of the St. Louis, Missouri, Regional Office (RO). In a December 2015 decision, the Board denied a rating in excess of 50 percent. The Veteran subsequently appealed to the United States Court of Appeals for Veterans' Claims (Court). In October 2016, the Court granted the Parties' Joint Motion for Remand (JMR); vacated the December 2015 Board decision; and remanded the Veteran's appeal to the Board. In February 2017, the Board remanded the appeal. The issues of an increased rating for the Veteran's bilateral hearing loss and right shoulder shell fragment wound residuals with scar have been raised by the record in a July 2017 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran's PTSD caused suicidal and homicidal ideation; depressive disorder; alcohol use disorder; anger and irritability, including physical and verbal altercations with former colleagues and strangers, and caused him to verbally abuse his spouse; sleep disturbances and chronic sleep impairment; nightmares; intrusive thoughts and flashbacks; guilt; avoidance of distressing memories, thoughts, feelings, and external reminders of his in-service stressors; avoidance of crowds; feelings of detachment and estrangement from others; flattened affect; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; persistent inability to experience positive emotions; anxiety; panic attacks in large crowds and at social gatherings; tension; headaches when discussing in-service trauma; suspiciousness; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; impaired impulse control; lack of motivation to participate in activities; and reckless or self-destructive behavior. 2. The Veteran's PTSD did not cause total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent since February 29, 2012, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial rating of 100 percent since February 29, 2012, for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Where, as here, with the appeal for an initial compensable rating following the grant of service connection, the service connection claim is substantiated. No additional VCAA notice is required with respect to the downstream issue of the initial rating assigned to the now service-connected disability. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective dates); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). In addition, VA obtained all identified evidence and there is no indication that there is additional relevant evidence that is still outstanding. II. Analysis Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). A 50 percent evaluation for PTSD requires 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 evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, 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 an inability to establish and maintain effective relationships. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an 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, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 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. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where, as here, the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran has a non-service-connected psychiatric disorder, in addition to his service-connected PTSD. No competent medical professional has separated the effects of the non-service-connected disorder from those associated with the service-connected disorder. Therefore, all of the Veteran's psychiatric symptoms will be attributed to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that when claimant has both service-connected and non-service-connected disabilities, Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). In June 2013, the Veteran was afforded a VA examination. He reported that he and his spouse had been married for 40 years but that he was "verbally short" with her and would get agitated and yell at her sometimes. He reported being unable to sleep four nights per week, which resulted in him disturbing his spouse's sleep. He had a good relationship with his adult son and daughter and kept in occasional contact with a few friends. He reported a history of physical and verbal altercations at a former job. He then became an insurance agent where he had been working for 39 years. He reported being in management for nearly 11 years but had difficulty fitting into the company's corporate culture and requested a return to his former sales position. His daughter worked at his office a couple of days per week and he stated that he occasionally was verbally "short" with her. The examiner diagnosed PTSD and indicated symptoms of recurrent distressing dreams; intense psychological distress at exposure to cues that resembled his in-service traumatic events; avoidance of thoughts, feelings, conversations, activities, people, and places the caused him to recall in-service traumatic events; feelings of detachment and estrangement from others; flattened affect; sleep difficulties, including chronic sleep impairment; irritability or outbursts of anger; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; and difficulty establishing and maintaining effective work and social relationships. He reported suicidal ideation twice since returning from Vietnam, including one incident the year prior to the examination in which he had a plan and left notes for his daughter for what to do at the insurance business. He reported that he then heard God tell him to view a video online. After watching the video, he avoided an attempt to take his own life. A December 2016 VA treatment record indicates that the Veteran felt depressed, slept a maximum of five hours per night, had nightmares, felt worthless and guilty, had difficulty concentrating, had an irritable mood, was angry, avoided crowds, sat with a view of the door in restaurants, had flashbacks one time per month, and had a lack of motivation to participate in activities. He reported difficulty getting close to people and only having about four friends. He reported enjoying hunting, participating in a community organization, and attending hockey games. He reported no suicidal or homicidal ideation and was neatly groomed. Another December 2016 VA treatment record states that the Veteran had symptoms of recurrent, involuntary, and intrusive distressing memories of an in-service stressor; recurrent distressing dreams of the stressor; dissociative reactions, including flashbacks; intense or prolonged psychological distress at exposure to cues that resemble the traumatic event; avoidance of distressing memories, thoughts, feelings, and external reminders of the in-service stressor; persistent and exaggerated negative beliefs or expectations about himself, others, or the world; persistent, distorted cognitions about the cause of the in-service stressor which led him to blame himself; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outbursts; reckless or self-destructive behavior; hypervigilance; exaggerated startle response; difficulty concentrating; and sleep disturbance. He denied current plans or intent for suicide or homicide. Another December 2016 VA treatment record states that the Veteran had nightmares and flashbacks of in-service trauma. He reported being hypervigilant and always sitting with his back to the wall, anxiety, road rage, and guilt over the death of a fellow soldier in Vietnam. He stated that the symptoms caused marital tension. He reported no suicidal ideation in the previous few years. A January 2017 statement from the Veteran's spouse stated that loud noises (such as fireworks or balloons popping) caused the Veteran to "hit[] the ground." She also reported that he had to sit in particular locations in restaurants, was irritable at other drivers even when he was a passenger, and got angry with her over small things. She reported that he talked about suicide and had guilt because he survived Vietnam and others did not. She stated that he had panic attacks in large crowds and social gatherings, which was problematic because they were a regular requirement of his job. A January 2017 statement from the Veteran's friend and fellow Veteran states that the Veteran "is never far from Vietnam." He reported that the Veteran was hypervigilant and always sat facing the door and the crowd when he was in a group of people. He stated that the Veteran had difficulty sleeping and slept very lightly. In a January 2017 statement, the Veteran wrote that he had flashbacks, had difficulty sleeping, was irritable, and was both suicidal and homicidal. He reported a history of verbally abusing his spouse. A February 2017 VA treatment record indicates that the Veteran was tense and reported continued difficulty with tension and irritability. He also reported that his sleep was disturbed every night, that he was uncomfortable in crowds, and that he had frequent nightmares of in-service stressors. A March 2017 VA treatment record indicates that the Veteran was tense. He had recently retired from his job, but while he was working had irritation and anger at one of his former managers. He had nightmares of his in-service trauma four to five times per week and had a depressed mood. He denied suicidal or homicidal ideation. A May 2017 VA treatment record indicates that the Veteran was tense but cooperative, was properly oriented and there was no evidence of a thought disorder, was having frequent trauma thoughts and had been getting headaches when he tried to talk about trauma, and had frequent nightmares and woke up often during the night. He denied suicidal and homicidal ideation. In May 2017, the Veteran was afforded a VA examination. He was diagnosed with PTSD, unspecified depressive disorder, and moderate alcohol use disorder. The examiner stated that the depression and alcohol use disorders were likely a reaction to his PTSD symptoms. He reported continuing to sometimes yell at and argue with his spouse, straining their relationship. He said that he felt sad after arguments with her. He also stated that they do spend time together, going out to eat or at home. He saw his adult children regularly, was occasionally in touch with his niece and nephew, and kept in contact with a cousin and some friends. He reported not arguing with family members other than his spouse. He enjoyed hunting, but occasionally had flashbacks because one of his friends would start talking about Vietnam. He had a leadership role at a community organization, but he sometimes got angry at other members of the group because "they don't do [things] the right way." He had retired a few months earlier because "it was a typical corporation . . . get rid of the old guys because they make too much money." He avoided crowds, in public would sit where he could see the door and other people, was watchful at home, and was easily startled by loud noises. He reported having a fight with his gas company because the meter reader climbed the fence. He told them that "if I saw them do it then I would have shot him." He reported other incidences of irritability and anger at employees and other shoppers at a department store and the grocery store. He reported waking up most nights and being unable to go back to sleep for a few hours and that he had nightmares two to three times per week. He said that he drank three or four days each week and had six or seven beers each day; on the weekends he would sometimes drink more than that. The examiner indicated symptoms of recurrent, involuntary, and intrusive distressing memories and dreams of his in-service stressors; intense or prolonged psychological distress at exposure to cues that resemble the stressors; avoidance of distressing memories, thoughts, feelings, and external reminders of the stressors; persistent and exaggerated negative beliefs or expectations about himself, others, or the world; persistent negative emotional state; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; sleep disturbances, including chronic sleep impairment; depressed mood; anxiety; suspiciousness; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and impaired impulse control. The examiner stated that the Veteran had no immediate suicidal or homicidal ideation, had no reported history of hallucinations or delusions and none were indicated by the examination, and no mention of any history of psychotic symptoms in his treatment records. In a July 2017 statement, the Veteran wrote that he had a history of being fired from one job and quitting another before he could be fired after hostility toward his supervisors. He then became an independent contractor so he could be his own boss and was able to work for 40 years in the insurance industry. He reported difficulty getting close to people and having only two friends, with whom he reported arguing. The Veteran's PTSD caused suicidal and homicidal ideation; depressive disorder; alcohol use disorder; anger and irritability, including physical and verbal altercations with former colleagues and strangers, and verbal abuse of his spouse; sleep disturbances and chronic sleep impairment; nightmares; intrusive thoughts and flashbacks; guilt; avoidance of distressing memories, thoughts, feelings, and external reminders of his in-service stressors; avoidance of crowds; feelings of detachment and estrangement from others; flattened affect; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; persistent inability to experience positive emotions; anxiety; panic attacks in large crowds and at social gatherings; tension; headaches when discussing in-service trauma; suspiciousness; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; impaired impulse control; lack of motivation to participate in activities and reckless or self-destructive behavior. A 70 percent rating most closely approximates the Veteran's symptoms. See 38 C.F.R. § 4.7. A 100 percent rating is not warranted as the Veteran was not totally socially and occupationally impaired. He was neatly groomed, participated in hunting, held a leadership role in a community organization, ran his own business for 40 years until retiring, had been married to his spouse for over 40 years, had a good relationship with his adult children, and had some friends. In the JMR, the Court questioned whether the Veteran's report of hearing God's voice while contemplating a suicide attempt was evidence of delusions or hallucinations entitling him to a 100 percent rating. The Board finds that that this one report of hearing God's voice is not sufficient to entitle the Veteran to a 100 percent rating. The rating code specifically contemplates "[t]otal occupational and social impairment due to symptoms such as . . . persistent delusions or hallucinations" for a 100 percent rating. The Veteran reported no other delusions or hallucinations in any VA treatment records, VA examination reports, or in his direct correspondence with VA. The January 2017 statements from the Veteran's spouse and friend also did not mention any hallucinations or delusions. The VA examiner who performed the May 2017 examination was asked to expressly comment on symptoms of delusions or hallucinations. The examiner wrote, "There is no reported history of hallucinations or delusions, and there is no mention of any history of psychotic symptoms in his medical records." Likewise, a May 2017 VA treatment record indicates that he was properly oriented and there was no evidence of a thought disorder. Given the lack of evidence of persistent delusions or hallucinations, or any other symptoms indicating total occupational and social impairment, the Board finds that one report of hearing God's voice is insufficient to entitle the Veteran to a 100 percent rating. ORDER An initial rating of 70 percent since February 29, 2012, for PTSD is granted. An initial rating of 100 percent since February 29, 2012, for PTSD is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs