Citation Nr: 1802988 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 15-14 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1944 to January 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for PTSD, rated 30 percent. In September 2017, the Board remanded the matter for additional development. 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) (West 2012). FINDING OF FACT At no time under consideration is the Veteran's PTSD shown to have been manifested by symptoms productive of impairment greater than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; symptoms productive of occupational and social impairment with reduced reliability and productivity are not shown. CONCLUSION OF LAW A rating in excess of 30 percent for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code (Code) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An April 2015 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating, and a December 2017 supplemental SOC readjudicated the matter after the Veteran responded and further development was completed. 38 U.S.C. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Neither the Veteran nor his representative has raised any issues regarding VA's duties to notify and assist the claimant. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ( "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). The Board finds there has been substantial compliance with its September 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Legal Criteria, Factual Background, and Analysis 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.A. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. PTSD is rated under the General Rating Formula for Mental Disorders. A 30 percent evaluation is warranted when the evidence demonstrates 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, and mild memory loss (such as forgetting names, directions, recent events. A 50 percent rating is warranted when there is 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 warranted when there is 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 evaluation is warranted when there is 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. 38 C.F.R. § 4.130, Code 9411. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of this regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "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, 116-17 (Fed. Cir. 2013). "[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Therefore, although the veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. In an April 2014 statement, the Veteran stated that he has nightmares and wakes up fighting during the night (and has hit his wife several times), and that he sometimes screams and wakes up sweating. He stated that he cannot stand to be in crowds and prefers to be alone. On June 2014 VA examination, the Veteran reported that he has been married for 70 years, has some friends, and mostly stays at home. He reported that he worked at an ammunition plant for 25 years after World War II and was a cattle rancher for many years; he retired from ranching 2 years earlier but still "piddled" on his remaining 41 acres. He had not received any psychiatric treatment. He reported symptoms including anxiety, chronic sleep impairment, recurrent intrusive distressing memories and dreams, avoidance of distressing memories, avoidance of external reminders, inability to remember an important aspect of the traumatic events, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response, and sleep disturbance. The diagnosis was chronic PTSD. The examiner opined that the Veteran's PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner opined that, based on the examination, the Veteran did not need to seek any follow up treatment and did not appear to pose any threat of danger or injury to himself or others. Based on this evidence, the June 2014 rating decision on appeal granted service connection for PTSD, rated 30 percent. On October 2017 VA examination (pursuant to the Board's remand), the Veteran reported that he purposely does not talk about his time in service because it depresses him . The examiner noted that there was no change in the Veteran's relevant social, marital, or family history since the previous examination. The Veteran reported having a good marriage with his wife of 74 years. He reported talking to friends several times per week. He reported having many nephews and nieces who live near him, and that he has very close relationships with family. He saw a neighbor friend about once a week. He related that he ran cattle until he was 90 years old; he then leased out all of his land but he still lives on the land. Regarding relevant mental history, he reported that it was "good" and not much had changed. He reported continued problems controlling his worry, especially about current political events and some thoughts that people are not safe. He continued to have nightmares on a regular basis and was not satisfied with his sleep due to needing to use the bathroom almost every hour, but was able to go back to sleep. He reported that his symptoms of PTSD are about the same as in 2015. He reported watching a lot of war movies because he likes history although they make him sad and somewhat anxious. He was not on any mental health medication. He reported symptoms including anxiety, chronic sleep impairment, recurrent intrusive distressing memories and dreams, dissociative reactions, intense or prolonged psychological distress and marked physiological reactions at exposure to cues of the traumatic event, avoidance of distressing memories, avoidance of external reminders, inability to remember an important aspect of the traumatic events, persistent and exaggerated negative beliefs or expectations about himself or the world, exaggerated startle response, and problems with concentration. On mental status examination, the Veteran was described as well groomed; his right arm shook uncontrollably. He became tearful as he spoke about his time in service, especially the Battle of the Bulge. Test results indicated minimal anxiety and depression in the previous 2 weeks and subthreshold insomnia. The diagnosis was PTSD. The examiner opined that the Veteran's PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Additional VA treatment records through 2017 reflect symptomatology largely similar to that shown on the examinations described above. Taken as a whole, the medical evidence shows that the impairment from the Veteran's PTSD more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, contemplated by a 30 percent rating, rather than the reduced reliability and productivity required for the next higher (50 percent) evaluation. He is retired, and does not report substantial impairment of daily activity functioning. In fact, his familial and social functioning and his ability to tend to activities of daily living appear to throughout have been quite satisfactory. On June 2014 VA examination, he reported that he had been married for 70 years, and had some friends. He had worked for many years (first in an ammunition factory, then operating a cattle ranch) before retiring only 2 years earlier, and did not indicate that the state of his mental health was a factor in his decision to retire. He had not received any psychiatric treatment, and the examiner specifically opined that he did not need to seek mental health treatment. On October 2017 VA examination, the Veteran reported that he has a good marriage, talks to friends several times per week (i.e., maintains social contacts), has very close relationships with his many relatives who live nearby, and sees a neighbor friend regularly. He continued to not require mental health medication; testing revealed minimal anxiety and depression and subthreshold insomnia. He has not displayed symptoms of a nature and severity consistent with the criteria for scheduler ratings of 50 percent and above. The Board finds that the evidence reflects that the Veteran's PTSD results in occupational and social impairment no greater than that contemplated by the 30 percent rating currently assigned. The next higher, 50 percent, rating requires occupational and social impairment with reduced reliability and productivity. Here, reduced reliability and productivity simply are not shown. Instead, his PTSD disability picture is one more consistent 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 normal conversation). The lay statements the Veteran has submitted in support of this claim describe the types of problems that result from his PTSD symptoms. The functional impairment he describes is encompassed by the criteria for the 30 percent rating assigned, and does not support the assignment of a higher schedular rating for any period of time under consideration. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 30 percent for PTSD is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs