Citation Nr: 1801106 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-09 184A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD) for the period prior to October 14, 2009, in excess of 50 percent for October 14, 2009 to February 15, 2011, and in excess of 70 percent for the period starting February 16, 2011. ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT For the entire appeal period, the Veteran's PTSD has been characterized by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. For the period prior to October 14, 2009, the criteria for an initial rating in excess of 30 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. For the period from October 14, 2009 to February 15, 2011, the criteria for a rating in excess of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2017). 3. For the period starting February 16, 2011, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable Law Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, staged ratings for the disability on appeal have already been assigned; accordingly, the Board will discuss the propriety of the ratings assigned at each stage. The Veteran's PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, a noncompensable rating is assigned for a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned 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 conversation normal), 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 assigned 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. A 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 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. Analysis The Veteran contends that he is entitled to an increased rating for his PTSD because the current assigned ratings do not adequately represent the severity of his condition. For the period prior to October 14, 2009, the evidence indicates that the Veteran's PTSD was characterized by occupational and social impairment with deficiencies in most areas. The Veteran underwent a VA examination in June 2009 and reported being in a bad mood; experiencing difficulty getting along with people; and getting into fights. He also reported persistent irritability or outbursts of anger; exaggerated startle response; hypervigilance; and difficulty concentrating. The Veteran noted persistent difficulty falling or staying asleep and frequent awakenings. The examiner indicated that the Veteran's affect and mood indicate an impaired impulse control with unprovoked irritability and periods of violence. However, the Veteran's orientation, appearance, hygiene, behavior, eye contact, communication, speech, thought processes, abstract thinking and memory were all normal or appropriate. The Veteran's VA treatment records indicate similar symptomatology to that reported at the June 2009 VA examination. In September 2004, the Veteran reported interrupted sleep, violent dreams, and mood swings that consist of unprovoked irritability, anger and past homicidal ideation. See October 2004 VA Treatment Records, p. 9. The Veteran did not appear significantly depressed during the interview, his affect was appropriate to topic, and his speech was normal. There was no present homicidal or suicidal ideation. In VA treatment notes dated from November 2004 through December 2007, the Veteran continued to report poor sleep, depressed mood, mood swings, hypervigilance, difficulty concentrating, and paranoia. See August 2005 VA Treatment Records, pp. 1, 9, 11; November 2007 VA Treatment Records, pp. 1-4, 6; June 2009 VA Treatment Records, pp. 3-4; October 2014 CAPRI, pp. 21-22; October 2014 CAPRI, pp. 2-3, 11, 13. The Veteran reported a close relationship with his sisters; engagement in family activities; and enjoyment from listening to music, television and exercising. See October 2014 CAPRI, p. 78. From February 2008 to August 2008, the Veteran's VA treatment records note the following additional symptoms: anger, irritability, exaggerated startle response, avoidance of crowds, and anxiousness. See August 2015 CAPRI, pp. 24-27, 30, 32-36, 38, 41. In February 2008, the Veteran reported seeing moving things or hearing noises that were not there. Id. at p. 41. The Veteran also reported a parasuicidal act in 2005 which he attributed to his divorce and feeling as though people did not appreciate the pressure he was under. See December 2010 CAPRI, p. 35. In light of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's disability picture more closely approximates the picture contemplated at the 70 percent rating for the period prior to October 14, 2009. The Board finds, however, that the Veteran's symptomatology has not approximated that required for a 100 percent disability rating. Specifically, although the Veteran's symptoms for the period were severe and no doubt presented significant challenges, the evidence did not demonstrate 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. The evidence demonstrates a persistent depressed mood; chronic sleep impairment; anxiety; disturbances of mood; social withdrawal and isolation; impaired impulse control with periods of violence and homicidal ideation; and, difficulty in adapting to stressful circumstances. The Board finds that the severity of the symptoms most closely approximate those contemplated by a 70 percent disability rating. Accordingly, the Board concludes that the weight of the evidence preponderates in favor of a finding of entitlement to a 70 percent rating, and no higher, for PTSD for the period prior to October 14, 2009. Similarly, for the period from October 14, 2009 to February 15, 2011, the Board finds that the evidence indicates that the Veteran's PTSD was characterized by occupational and social impairment with deficiencies in most areas. During the March 2010 VA examination, the Veteran reported no longer engaging in daily activities and stated that he had no social life and no desire to do anything. He reported near continuous anxiety and depression; impaired impulse control with unprovoked irritability and periods of violence; impaired attention and focus; panic attacks; suspicion; some impairment of thought processes; mild memory problems; difficulty getting along with people; social isolation; and, difficulty sleeping. However, the Veteran's orientation, appearance, behavior, eye contact, communication and speech were generally normal or appropriate. The Veteran's VA treatment records during this time period indicate similar symptomatology including increased irritability, social isolation, recurrent nightmares, sleep impairment, depressed mood, decreased concentration, anhedonia, thoughts of hurting others, and anxiety. See December 2010 CAPRI, pp. 4, 6, 14, 35, 38, 42; August 2015 CAPRI, pp. 5-6. The Veteran denied suicidal and homicidal ideation, and no acute emotional distress was observed during this time. The Board finds that the Veteran's disability picture more closely approximates the picture contemplated at the 70 percent rating for the period from October 14, 2009 to February 15, 2011. The evidence does not demonstrate total occupational and social impairment but instead shows occupational and social impairment with deficiencies in most areas. The Veteran's symptomatology during this stage included near continuous anxiety and depression; impaired impulse control with unprovoked irritability and periods of violence; impaired attention and focus; sleep impairment; difficulty getting along with people; and, thoughts of hurting others. Affording the Veteran the benefit of the doubt, the Board concludes that the preponderance of the evidence demonstrates that the severity of the symptoms most closely approximate those contemplated by the 70 percent rating. Thus, the Board finds that a rating of 70 percent, and no higher, for PTSD for the period from October 14, 2009 to February 15, 2011 is warranted. For the period starting February 16, 2011, the Board finds that the evidence preponderates against a finding of entitlement to a rating in excess of 70 percent. The Veteran underwent VA examinations in May 2011, February 2012, August 2015 and September 2016. During the May 2011 examination, the Veteran reported irritability, outbursts of anger, difficulty concentrating, and exaggerated startle response. His thought process and content were unremarkable and he denied suicidal and homicidal ideations as well as hallucinations. At the February 2012 examination, the Veteran's symptoms included a depressed mood, mild memory loss, recurrent nightmares, and social withdrawal. The Veteran denied suicidal ideation. His orientation, appearance, eye contact, speech, affect and short-term memory were all good or appropriate. The Veteran reported maintaining friendships and the examiner indicated that the Veteran's forgetfulness was consistent with his age. The examiner noted that the Veteran was generally functioning satisfactorily with normal routine behavior, self-care and conversation. In August 2015, the Veteran reported difficulty participating in family activities due to his PTSD symptoms. The examiner observed anxiety; mild memory loss; disturbances of mood and motivation; difficulty in establishing and maintaining effective work and social relationships; and, difficulty in adapting to stressful circumstances. The Veteran's thought process was logical, and he denied hallucinations, suicidal ideation and homicidal ideation. During the September 2016 examination, the Veteran's symptoms were consistent with the previous examinations. Notably, the Veteran reported suicidal ideation (but no recent attempts) which the examiner attributed to depressive disorder. The Veteran's VA treatment records largely echo his VA examinations. During this stage, the Veteran denied any current suicidal or homicidal ideation; did not report experiencing hallucinations; and, reported irritability, depressed mood, nightmares, and anger. See October 2014 CAPRI, pp. 7, 40, 47; August 2015 CAPRI, pp. 5, 21, 72, 138, 167, 176, 183. The Veteran's thought processes, appearance, eye contact, and speech were normal or appropriate; his insight and judgement were generally characterized as poor. The Board finds that there is insufficient evidence to warrant a rating in excess of 70 percent for PTSD for the period starting February 16, 2011. The Veteran does not demonstrate total occupational and social impairment due to symptoms of the severity of those contemplated by a 100 percent disability rating. Rather, the Veteran's depressed mood, nightmares, irritability, outbursts, anger, anxiety and suicidal ideation, most closely approximate the severity of the symptoms contemplated by a 70 percent disability rating. The Board concludes that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 70 percent for PTSD for the period starting February 16, 2011. ORDER An increased initial rating of 70 percent, and no higher, for PTSD for the period prior to October 14, 2009 is granted. An increased rating of 70 percent, and no higher, for PTSD for the period from October 14, 2009 to February 15, 2011 is granted. A rating in excess of 70 percent for PTSD for the period starting February 16, 2011 is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs