Citation Nr: 1802679	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  10-37 071	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to July 6, 2015. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran





ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran served on active duty from March 1989 to July 1989, December 1990 to August 1991, and December 1995 to August 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In September 2016, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge.  A transcript of the proceeding is of record. 

In March 2015, August 2016, and June 2017, the appeal was remanded to the RO for further development, which has been accomplished.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  It now returns to the Board for appellate review. 

In a November 2017 submission, the Veteran stated that she was not disagreeing with the 70 percent rating assigned, but with the effective date of July 6, 2015 for that rating.  She indicated that she desired the 70 percent rating back to the date of claim.  As the initial rating claim on appeal encompasses the period back to the date of claim, entitlement to a rating of 70 percent prior to July 6, 2015 is part of the adjudication of the claim for an initial rating in excess of 30 percent prior to that date.  Therefore, there is no separate effective date claim on appeal.  

However, the Board considers the November 2017 statement a withdrawal of the appeal for a rating in excess of 70 percent from July 6, 2015 to the present.  Accordingly, the Board has recharacterized the issue on the title page to reflect that change.  
FINDING OF FACT

Prior to July 6, 2015, the Veteran's PTSD was manifested by reduced reliability and productivity in work, social, and family relationships as a result of severe anxiety, severe depression,  deficiencies of long- and short-term memory and impulse control, obsessions, compulsions, hallucinations, paranoia, and sleep impairment, fear of losing control at work and at home, and absences from work.


CONCLUSION OF LAW

The criteria for a rating of 50 percent, but no greater, for PTSD prior to July 6, 2015, have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 

The record also reflects that all available pertinent treatment records have been obtained, to include the Veteran's service treatment records and post-service VA treatment records.  No other outstanding, existing evidence that could be obtained to substantiate the claim has been identified.  The Board is also unaware of any such evidence.  In addition, the Veteran was afforded the necessary VA examinations.  

 Accordingly, the Board will address the merits of the claim.  

II. Legal Criteria

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2017).

Each disability must be considered from the point of view of the Veteran working or seeking work.  See 38 C.F.R. § 4.2 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2017).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made.  See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The Veteran's PTSD was rated as 30 percent disabling under the General Rating Formula for Mental Disorders set forth in 38 C.F.R. § 4.130, Diagnostic Code 9411, prior to July 6, 2015.  Under the General Rating Formula, a 30 percent evaluation is warranted if there is 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, or mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. 
§ 4.130, Diagnostic Code 9411.

A 50 percent evaluation 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.  Id. 

The next higher evaluation of 70 percent 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 evaluation is warranted 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. Id.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  Further, simply because this Veteran has some symptoms that are contemplated at a higher rating level does not mean the impact of her PTSD overall rises to that level. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013).  The Board must look to the frequency, severity, and duration of the impairment.  Id.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R.
§§ 3.102, 4.3 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

III. Analysis

In this case, the Board has reviewed all of the evidence of record, 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  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 claim.

The Veteran was afforded a VA examination in October 2008.  The examiner observed the Veteran to be well-groomed, alert, verbal, and cooperative.  The Veteran was outspoken, but the examiner noted that the Veteran's eyes were watering throughout the interview.  Subjective symptoms included severe anxiety manifested by restlessness, irritability, muscle tension, fatigue, and fear of losing control.  Other symptoms were insomnia and severe depression manifested by hopelessness, worthlessness, loss of interest and motivation, and feelings of inferiority/guilt.  There were no suicidal thoughts, gestures, or attempts.  The Veteran endorsed not liking crowds, but also indicated that she does not like to be alone, especially at night.  

The examiner observed logical and linear thought with appropriate speech that was well-modulated.  The examiner noted delusions in the form of paranoia with the Veteran feeling like she was being watched.  The Veteran also endorsed auditory and visual hallucinations.  Long-term memory was fair and short-term memory was poor.  Obsessions and compulsions were present and pronounced with frequent checking of doors and looking around.  The Veteran was oriented to person, place, and time.  The examiner documented restricted affect, panic symptoms, depression, impulse control, sleep impairment and impairment of motivation and mood, fair insight and good judgment. 
  
The Veteran reported a history of problems with anger, and the examiner noted that the Veteran had mild impairment at work and was afraid of losing her temper with her work subordinates.  The examiner determined that the Veteran had moderate impairment at home and in social relationships, noting hatred of crowds and reliance on her five-year old daughter to feel safe and locate her belongings.  The Veteran exhibited little trust of siblings except a brother with whom she speaks regularly.  She indicated that she maintains a couple of military friendships and attended church monthly.  

The Veteran participated in VA outpatient mental health treatment during the appeal period, and the records of this treatment are in the claims file.  However, these treatment notes do not reflect permanent changes in symptomatology that are greater or more severe than those documented at VA examinations.  

In addition to PTSD, the Veteran has diagnoses of bipolar disorder, major depressive disorder, and personality disorder.  The symptoms of each of the diagnosed disabilities are overall not differentiated.  While there is some indication that the Veteran's personality disorder has paranoid and negativistic traits, the record is insufficient for the Board to attribute all of such symptoms to her nonservice-connected personality disorder.  Therefore, the Board determines that the totality of the Veteran's psychiatric disorder symptoms is a result of her service-connected disability.  See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102  requires that reasonable doubt on any issue be resolved in the Veteran's favor, and that such signs and symptoms be attributed to the service-connected condition).  

In consideration of the entirety of the record relevant to the period on appeal, the Board determines that the Veteran's symptoms more closely approximate a 50 percent rating prior to July 6, 2015.  During the appeal period, the Veteran exhibited severe anxiety, severe depression, deficiencies of long- and short-term memory and impulse control, obsessions, compulsions, hallucinations, paranoia, and sleep impairment.  She also did not go to work at times because she "did not feel like going" and feared losing control at work, as well as losing control at home with her daughter, on whom the Veteran relied.  The Board finds that these symptoms and their associated functional impact are more aligned with reduced reliability and productivity in both work and home environments than with an occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks.  
However, the Board concludes that a rating in excess of 50 percent is not warranted as the Veteran was able to maintain social, work, and family relationships, exhibited good judgment and ability to communicate, displayed linear thought processes, and was oriented to person, place, and time.  Thus, during the period on appeal, the Veteran did not present with deficiencies in most areas of occupational, social, and cognitive functioning such that a rating in excess of 50 percent is warranted prior to July 6, 2015. 

Accordingly, the Board finds that the evidence supports a rating of 50 percent for the entire appeal period prior to July 6, 2015 and that a preponderance of the evidence is against a rating in excess of 50 percent.  Therefore, a rating of 50 percent, but no greater, for the period prior to July 6, 2015, is granted, and a rating higher than 50 percent is denied.    


IV. Total Disability due to Individual Unemployability (TDIU) 

The Board has considered the impact of the PTSD on her employment.  The record reflects that the Veteran was gainfully employed throughout the appeal period, despite occasional periods of being unable to attend work.  Consequently, the issue of entitlement to TDIU is not raised by the record and need not be further discussed.  Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

Entitlement to an initial rating of 50 percent, but no greater, for PTSD for the period prior to July 6, 2015 is granted, subject to the law and regulations governing the payment of monetary benefits. 
 


______________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs