Citation Nr: 1800657 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-12 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to include an unspecified neurocognitive disorder and an unspecified depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 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) ( 2012). FINDING OF FACT Throughout the appeal period, the Veteran's PTSD, to include an unspecified neurocognitive disorder and an unspecified depressive disorder, has been manifested by symptoms no worse than those resulting in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for PTSD, to include an unspecified neurocognitive disorder and an unspecified depressive disorder, have not been met at any time during the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411, General Rating Formula for Mental Disorders (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The record also shows that VA has fulfilled its obligation to notify and to assist the Veteran in developing this claim on appeal. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); 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 A. Legal Principles Disability ratings are determined by applying the criteria set forth in 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. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability ratings 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 (2017). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2017). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2017). The Veteran's PTSD was evaluated under 38 C.F.R. § 4.130, DC 9411 (2017). Under the General Rating Formula for Mental Disorders, 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 per 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. Id. 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. A 100 percent rating requires 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 symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that ?any suggestion that the Board was required . . . to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation"). However, ?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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). ?The regulation's plain language highlights its symptom-driven nature" and ?symptomatology should be... the primary focus when deciding entitlement to a given disability rating." Id. at 116-17. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria; rather than solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a). In evaluating psychiatric disorders, VA also considers a claimant's Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the DSM-IV reflecting the ?psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. According to DSM-IV, a score of 61-70 indicates ?[s]ome mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." A score of 51-60 indicates ?[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. A score of 41-50 indicates ?[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 31-40 indicates ?[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work)." Id. A GAF score thus may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 (observing that a GAF score of 50 indicates serious impairment); accord Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001). B. Factual Background and Analysis The Veteran contends that he is entitled to a disability rating in excess of 50 percent. In this regard, the Board notes that post-service VA treatment records reflect the Veteran's reports of depression, anxiety, nightmares, some anger issues, as well as difficulty being around crowds. In 2014 and 2015, the Veteran reported frustration regarding his memory loss. VA treatment records are silent for reports of suicidal or homicidal ideation, paranoia, or delusions. The Veteran underwent a VA examination for evaluation of his PTSD in November 2013. The Veteran reported symptoms of depression, anxiety, recurrent distressing dreams, general avoidance of people, diminished interest in activities, feelings of detachment from others, irritability, and problems with concentration, due to his recent diagnosis of dementia. The Veteran denied suicidal or homicidal ideations. He indicated that he gets along well with immediate family members. The examiner diagnosed the Veteran with chronic PTSD, unspecified depressive disorder, and unspecified neurocognitive disorder, which was previously diagnosed as dementia in November 2013. For the Veteran's symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty establishing and maintaining relationships, the examiner stated that he could not differentiate which symptoms are attributable to each diagnosis rendered, as the symptoms of each disorder overlapped and could not be distinguished without speculation. The examiner found the Veteran's PTSD symptoms more nearly approximated those associated with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform with normal routine behavior, self-care, and conversation. In his January 2015 notice of disagreement with the January 2014 rating decision that increased the evaluation for his PTSD from 30 percent to 50 percent, effective September 11, 2013, the Veteran's wife included a lay statement indicating that the Veteran angers easily and feels that everyone is against him. She stated that he continued to experience frequent nightmares and could not control his thoughts. The Veteran was afforded an additional VA examination to evaluate his PTSD in May 2015. The Veteran was diagnosed with chronic PTSD and unspecified neurocognitive disorder. His overall symptoms included depressed mood, chronic sleep impairment, impairment of short and long-term memory, intermittently illogical or obscure speech, difficulty understanding complex commands, and impaired abstract thinking. The examiner attributed symptoms of traumatic dreams, psychological distress in response to trauma-related cues, avoidance of trauma-related cues, and feelings of inappropriate guild to the Veteran's diagnosis of PTSD. The examiner attributed symptoms of language and memory deficits, speech and language deficits, processing speed deficits, and executive function deficits to the Veteran's diagnosis of unspecified neurocognitive disorder. The examiner could not attribute symptoms of sleep disturbance, difficulty concentrating, depressed mood, and irritability to either the Veteran's PTSD or his unspecified neurocognitive disorder. The Veteran denied suicidal and homicidal ideations. He indicated that he gets along well with his family members. The examiner found the Veteran's PTSD symptoms more nearly approximated those associated with occupational and social impairment with reduced reliability and productivity. While the examiner stated that it was not possible to differentiate which portion of impairment is caused by each mental disorder because of some symptom overlap, the majority of impairment appeared to be associated with dementia, and the Veteran's PTSD symptoms appeared to be of mild severity. Additionally, the examiner clarified that the Veteran's unspecified neurocognitive disorder is not secondary to his PTSD, but is rather an independent diagnosis. With regard to the Veteran's symptoms of PTSD only, the examiner found that the Veteran would likely be capable of understanding, remembering, and carrying out instructions. The examiner stated that the Veteran's difficulty with concentration is more heavily influenced by his diagnosis of unspecified neurocognitive disorder rather than his PTSD. In a December 2015 Disability Benefits Questionnaire (DBQ), the examiner opined that it is less likely than not that the Veteran's unspecified neurocognitive disorder is aggravated by his PTSD. The examiner stated that the Veteran's dementia, diagnosed as unspecified neurocognitive disorder, is progressive by its very nature and would not be aggravated by a mental health disorder such as PTSD. The examiner stated that the Veteran's neurology notes in his VA treatment records indicated a CT scan that revealed ?small meningioma, right frontal," which the examiner explained is ?totally unrelated to PTSD." In his March 2016 substantive appeal, the Veteran's daughter included a lay statement indicating that she believed the Veteran's memory loss is a symptom that is related to his PTSD, rather than solely attributable to his diagnosis of unspecified neurocognitive disorder. Upon review of the record, the Board finds that a disability rating in excess of 50 percent for the Veteran's service-connected PTSD is not warranted at any time during the current appeal period. The evidence from the Veteran's VA treatment records and VA examinations reflect that his PTSD more nearly approximates a 50 percent rating for occupational and social impairment with reduced reliability and productivity, the Veteran's currently-assigned disability rating. The Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disorder, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181, 182 (1998). The November 2013 VA examiner was unable to differentiate which of the Veteran's symptoms, to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty establishing and maintaining effective relationships, were attributable to his PTSD and his unspecified neurocognitive disorder, therefore, all of the Veteran's reported symptoms were attributed to his service-connected PTSD. The January 2014 rating decision assigned a disability rating of 50 percent from September 11, 2013, the date of the Veteran's claim, accounting for the Veteran's symptom of mild memory loss noted in his November 2013 VA examination report. At the May 2015 VA examination, however, the examiner was able to differentiate between the Veteran's PTSD and unspecified neurocognitive disorder symptoms, with the exception of four symptoms. The examiner found that symptoms attributable to the Veteran's PTSD include traumatic dreams, avoidance, feelings of inappropriate guilt, and psychological distress in response to trauma-related cues. Symptoms attributable to the Veteran's unspecified neurocognitive disorder include deficits in learning and memory, deficits in speech and language, executive function deficits, and processing speed deficits. The examiner found that the Veteran's symptoms of sleep disturbance, difficulty concentrating, depressed mood, and irritability could not be attributed to either the Veteran's PTSD or his unspecified neurocognitive disorder and that, therefore, under Mittleider v. West, these four symptoms must be attributed to the Veteran's service-connected PTSD when considering whether an evaluation higher than 50 percent is warranted. The criteria necessary for a 70 percent disability rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, 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 attacks or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The evidence of record reflects that the Veteran's PTSD has manifested in the following symptoms: depressed mood; anxiety; suspiciousness; irritability; avoidance; feelings of inappropriate guilt; psychological distress in response to trauma-related cues; difficulty concentrating; mild memory loss; chronic sleep impairment; traumatic dreams; and difficulty establishing and maintaining relationships. The Veteran's symptoms and overall impairment, however, do not more nearly approximate the criteria for a higher disability rating of 70 percent. Throughout his post-service VA treatment records and VA examinations, the Veteran has not demonstrated suicidal ideation, obsessional rituals which interfere with routine activities, near-continuous panic attacks or depression, episodes of violence, spatial disorientation, and neglect of personal appearance and hygiene. Specifically, the Veteran has denied suicidal and homicidal ideations, and while he has reported periods of anger and irritability, these periods have not resulted in physical violence, as the Veteran indicated in his May 2015 VA examination that such bouts of verbal acting out are occasional and that he attempts to excuse himself and leave a situation before he behaves inappropriately. The Veteran's appearance is consistently well-groomed and appropriate during his VA examinations, as well as during VA treatment sessions. While he has reported symptoms of anxiety, the Veteran indicated in his May 2015 VA examination that he does not generally experience persistent or near-continuous anxiety. He has consistently reported having a close relationship with his immediate family. While the Veteran has reported symptoms of depression throughout the appeals period, during his May 2015 VA examination, he indicated that he ?gets depressed a little bit." For these reasons, the Board finds that the Veteran's PTSD does not warrant a 70 percent disability rating from September 11, 2013. Although the Veteran experiences symptoms of memory and speech impairment , the May 2015 VA examiner found these symptoms to be attributable to the Veteran's unspecified neurocognitive disorder, for which is he is not service-connected. The May 2015 examiner opined that the Veteran's PTSD and unspecified neurocognitive disorder are two independent diagnoses, and that his unspecified neurocognitive disorder is not secondary to his PTSD. With regard to the Veteran's PTSD, the examiner stated that, while the Veteran may experience mild difficulty responding effectively to supervision and relating effectively to co-workers, the Veteran would likely be capable of understanding, remembering, and carrying out instructions. The examiner indicated that the Veteran's reports of significant difficulty concentrating and sustaining attention are more heavily influenced by his diagnosis of unspecified neurocognitive disorder rather than by his PTSD. Additionally, in the December 2015 DBQ, the May 2015 VA examiner was asked to opine as to whether the Veteran's unspecified neurocognitive disorder is aggravated beyond its natural progression by the Veteran's service-connected PTSD. The examiner opined that it is less likely than not that the Veteran's unspecified neurocognitive disorder is aggravated by the Veteran's PTSD. The examiner indicated that the Veteran's dementia, diagnosed as unspecified neurocognitive disorder, is progressive in nature and would not be aggravated by a mental health disorder such as PTSD. While neurology notes in the Veteran's post-service treatment records indicated that a CT scan revealed ?small meningioma, right frontal," the examiner indicated that his would be totally unrelated to PTSD. Excluding the Veteran's neurocognitive symptoms, for which he is not service-connected, the Board finds that the frequency, severity, and duration of the Veteran's PTSD symptoms described in the November 2013, May 2015, and December 2015 opinions more closely demonstrate occupational and social impairment with reduced reliability and productivity and, therefore, the 70 percent criteria are not met. The Board has considered statements by the Veteran's wife and daughter that his symptoms of memory impairment are related to his PTSD, rather than solely due to his diagnosis of unspecified neurocognitive disorder. The Veteran's wife and daughter are clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In this case, the current severity of the Veteran's service-connected PTSD is a matter suited to the realm of medical expertise. As such, to the extent the Veteran's wife and daughter are addressing questions of the medical nature and severity of the Veteran's disability, the Board finds their statements are not competent lay evidence. Notwithstanding, the probative medical evidence outweighs the lay statements. In sum, the Board concludes that, throughout the entirety of the appeal period, the Veteran's symptoms of PTSD, to include an unspecified neurocognitive disorder and an unspecified depressive disorder, are more characteristic of a disability picture that is contemplated by a 50 percent rating. Accordingly, the claim for a disability rating in excess of 50 percent for this disability is denied. ORDER Entitlement to a disability rating in excess of 50 percent for PTSD, to include an unspecified neurocognitive disorder and an unspecified depressive disorder, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs