Citation Nr: 1803422 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-05 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 60 percent for ischemic heart disease (IHD). ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1966 to May 1969, including service in Vietnam. His awards and decorations include the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In August 2016, the Board remanded the case for additional development, which has been completed. In August 2017, the RO granted a 100 percent rating for IHD, effective November 15, 2016, and the issue of entitlement to an increased rating for the Veteran's IHD on or after this date is no longer before the Board. The RO also awarded TDIU, effective April 22, 2011, constituting a full grant of the benefit sought on appeal. The matters have since been returned to the Board for appellate review. The Board notes that in August 2016, the Veteran's attorney submitted a motion to withdraw from representation more than 90 days after certification of the appeal to the Board. In November 2017, the undersigned Veterans Law Judge granted the motion to withdraw for good cause pursuant to 38 C.F.R. § 20.608 (b)(2) (2017). Accordingly, the Veteran is considered as pro se. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's PTSD has been productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as impairment of short- and long-term memory and difficulty in establishing and maintaining effective work and social relationships. 2. For the initial rating period, the Veteran's ischemic heart disease was manifested by a workload of greater than 3 METs but not greater than 5 METs that resulted in dyspnea, fatigue, angina, and dizziness. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial rating in excess of 60 percent for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2017). Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct times where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD The Veteran's PTSD was assigned a rating of 50 percent, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent rating is warranted where 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. Id. A 70 percent rating is warranted where 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where 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. Id. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. 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. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that "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." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment." Id. In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Again, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). In 2011, the Veteran reported that he was married with two adult daughters and two grandchildren. His father died but his mother was still living. He also had one older sister. He related that he had a '"great"' and close relationship with his family members and that he spoke to his sister daily by phone. However, he also reported that his family relationships had been severely dysfunctional for a period of time in which he was an abusive drinker. Although he loved his wife, he acknowledged excessive anger, a short-temper, yelling, frequent irritability, and emotional abuse towards his wife. However, he was never physically abusive. For weekend entertainment, he ate out or shopped with his wife. He also spent time with his daughters and grandchildren. He played golf by himself. He could not be in an arena/stadium, or in any dark, crowded places. Additionally, when he was out in public, he had to sit with his back to the wall with the door and windows in sight or he had to stand near an exit. He stated that he could not '"get close to anybody"' and did not '"hang around'" with anyone. Yet, he had maintained some distant friendships and he had two or three friends from work with whom he did not socialize outside of work. He related that he had been demoted from a truck driver and was given custodial duties at a significantly reduced pay rate due to his heart condition. Although he was physically unable to continue a workaholic lifestyle, which had helped him avoid thoughts of traumatic events, emotionally he was unable to handle the down time, which his decreased work schedule had created. At a January 2011private psychological evaluation, the Veteran appeared casually dressed and well groomed. He was cooperative and attempted to answer all questions. Upon recounting his military history, he became emotionally distressed, his eyes would well up and he would give somewhat abbreviated answers to painful questions. He recalled that before his discharge, he coped with emotional symptoms of irritability, rage, insomnia, avoidance, nightmares, and flashbacks, in exactly the way the military taught him to cope - with alcohol and cigarettes. His sleep was very disturbed and he had not slept for eight hours in a night since he quit drinking and smoking to unconsciousness. He had frequent nightmares about shooting people. The sight of palm trees and certain smells triggered flashbacks. In the past, when he would have flashbacks, he would go directly into a bar and drink until it passed. He used to smoke cigarettes to calm his nerves. However, he found that his prior coping techniques, such as drinking and smoking, were no longer survivable options. He endorsed feeling fearful; feeling that most people could not be trusted; temper outburst that he could not control; feeling that people were friendly or disliked him; having to do things very slowly to ensure correctness; feeling inferior to others; having to check and double-check what he did; having to avoid certain things, places, or activities because they frightened him; his mind going blank; feeling tense or keyed up; feeling uneasy when people were watching or talking about him; feeling very self-conscious with others; feeling so restless he could not sit; feeling that people would take advantage of him if he let them; and ideas that he should be punished for his sins. He was diagnosed with PTSD and alcoholism in sustained full remission. He was assigned a GAF score of 45 and had a higher GAF score of 50 in the past year. In April 2011, the Veteran was afforded a VA PTSD examination. He was oriented to person, place and time. He was depressed, socially withdrawn and reported that he spent weeks not doing anything, and feeling like '"what's the use."' He had anxiety and moderate hyperstartle reflex (e.g. "'the grandchildren [knew] not to scare [him]"'). He complained of severe sleep impairment and profound sleep disturbance. He had flashbacks of Vietnam from triggers such as buzzing of mosquitoes, sound of helicopters, and being surprised which caused him to restrict lifestyle. His speech was normal. He did not have impairment of memory, thought process, or communication. He did not have delusions, hallucinations, or inappropriate behavior. However, he had obsessive or ritualistic behavior such as a counter - needing to do things to a certain '"safe"' number and frequently checking windows and doors. This behavior interfered with his routine activities but was not intrusive and had a mild, limited affect on his employment and social functioning. He did not have panic attacks but he avoided numerous activities so that he would not become anxious or panicked. He did not have impaired impulse control. He did not have any history of or current suicidal or homicidal thoughts or intent. He was able to maintain minimal personal hygiene and other basic activities of daily living. The examiner determined that there was occasional decrease in work efficiency or there were intermittent periods of inability to perform occupational tasks due to his PTSD, but generally satisfactory functioning (routine behavior, self-care, and conversation normal). In support of this conclusion, the examiner outlined the Veteran's long-term satisfactory marriage, close relationship to adult daughters and grandchildren, continued employment, well-groomed appearance, and personable behavior. He was diagnosed with PTSD and alcohol dependence, in remission. However, his PTSD symptoms were not severe enough to require continuous medication. He was assigned a GAF score of 55. By comparison, in an April 2011 lay statement, the Veteran asserted that he had "over 30 different jobs since leaving Vietnam because [he] could no longer be at peace with...any authority figure." He tried to block past memories. He did not keep anything of value for long. He did not build relationships with anyone except his wife because she was "patient, understanding and loving." A July 2013 Disability Benefits PTSD Questionnaire (DBQ) documented a GAF score of 50 because the psychologist believed that the Veteran's PTSD and social impairment were physically and emotionally debilitating. The psychologist determined that the Veteran had total occupational and social impairment because DSM stated individuals within this GAF score range typically had suicidal ideation, few friends, and inability to keep a job. Additionally, the psychologist noted that the GAF score could be noted as a lower score based on the Veteran's inability to maintain and form positive relationships, active hallucinations, and inability to sustain the stress from a competitive work environment. Specifically, the psychologist stated that the Veteran may indeed be a candidate for a 100 percent rating due to near continuous depression and anxiety, suspiciousness of others, lack of personal hygiene, and difficulty in adapting to stressful circumstances. The psychologist noted that the Veteran has been married to his wife for 43 years and that she was his sole support system. She added that the Veteran did not socialize outside of his family, did not trust others, and was suspicious of others. Due to his physical and emotional issues, the Veteran was unable to perform basic activities of daily living. In fact, his wife did the food shopping, meal preparation and managed all household chores. The Veteran was also unable to manage the finances and his wife handled all financial decisions. He struggled with hygiene and his wife had to remind him to perform his personal grooming. By contrast, the psychologist noted, "the Veteran had a limited support system." The Veteran reported a history of verbal and physical aggression. He endorsed PTSD symptoms such as depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; persistent delusions or hallucinations; persistent danger of hurting self or others; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran was provided an additional VA PTSD examination in March 2014. The Veteran reported that his marriage was superior and that his relationship with his spouse as "very good." He related that he had an excellent and close relationship with his daughters and grandsons. He reported having multiple close friends. His post-service work relationships with his co-workers and supervisors ranged from neutral to good. Additionally, the examiner noted that the Veteran's PTSD diagnosis did not appear to have had a significant impact on his marriage, social support system, or work relationships. On examination, the Veteran was observed to have good eye contact, grooming, and hygiene. He was oriented to person, place, and time. His speech was normal. His mood and affect were euthymic. His thought process was goal-directed and thought content was normal. His judgment, insight and memory were intact. His psychomotor activity was unremarkable. The examiner noted that the Veteran's initial PTSD examination included no diagnostic testing and that his test results include a fair amount of inconsistency both with the Veteran's self-reported symptoms during the clinical interview as well as across instruments and dates of assessment. For example, the examiner pointed out that during the current March 2014 VA examination the Veteran reported a variety of PTSD-related symptoms including exaggerated startle response, dreams about his experiences in Vietnam and hypervigilance. However, on November 23, 2011, the Veteran completed a PTSD screen with negative results and specifically denied being constantly on guard, watchful or easily startled, and having nightmares or disturbing dreams. The examiner stated that when taken as a whole, the Veteran's test results were too inconsistent to provide a clear indicator of the severity of his PTSD symptoms. On face-valid measures, such as the PCL-M, the MISS, the BDI-2, the Veteran reported significant symptoms congruent with a diagnosis of PTSD. On measures that were not face-valid but had well established construct and convergent validity, his profile of scores suggested that he currently did not have clinically elevated symptoms of PTSD. Consequently, a review of the Veteran's real life data is likely to provide the most accurate picture of the nature, frequency and severity of his PTSD symptoms. Accordingly, the Veteran had been successfully employed as a truck driver for 44 years and he denied a history of problems with absenteeism and conflicts with co-workers or supervisors. Furthermore, the Veteran had been successful at maintaining interpersonal relationships as evidenced by his positive and healthy relationships with his wife of over 44 years, his two adult daughters, two grandsons and multiple friends outside of the family unit. Additionally, he had multiple leisure activities. In summary, the examiner determined that his personal history suggested that his current PTSD symptoms were relatively mild and did not present a significant impediment to his ability to be successfully engaged. The examiner determined that the Veteran had 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 medication. At his November 2016 VA PTSD examination, the examiner noted that there did not appear to be much in the way of change in regards to the Veteran's social and occupational functioning since the March 2014 VA PTSD examination. Therefore, the Board incorporates the March 2014 VA PTSD examination results here. Additionally, the Veteran related that he continued to become nervous, watch other individuals, and be vigilant of his exits. He continued to report sleep difficulties, nightmares, anxiety and worry, and distressing memories. In addition, he noted that certain smells, music, and places brought back distressing memories. Objective personality testing was suggestive of possible over-reporting of affective symptoms, his reported ability to cope with and adjust to stressors, and, most notably, of somatic and cognitive complaints. Nevertheless, limited interpretation of the assessment was indicative of excessive anxiety and worry, a report of various negative emotional experiences including anger, fear, feelings of helplessness and self-doubt, anger proneness, and fears that significantly restrict normal activity in and outside the home. Additionally, he endorsed a mild level of current depression. On examination, the Veteran was observed to have good grooming and hygiene. He was polite and cooperative. He was oriented to person and place. His affect was noted to be mildly flat but congruent with content. His speech was logical and coherent without evidence of thought disorder or delusions. He denied any hallucinations. He did not have any significant anxiety, paranoia, anger, or irritability. He denied any current or past suicidal and homicidal ideations. The aforementioned evidence reflects that the Veteran's PTSD was manifested by depression, difficulty sleeping, nightmares, flashbacks, irritability, anger, anxiety, fear, and avoidant behaviors. The Board finds that the frequency, severity and duration of these symptoms are consistent with the assigned 50 percent rating, which contemplates occupational and social impairment with reduced reliability and productivity. In so finding, the Board notes that while the evidence has varied, the March 2014 and November 2016 VA PTSD examiners reviewed the Veteran's initial VA PTSD examination as well as other psychiatric diagnostic tests and determined that the Veteran had 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. The examiners noted inconsistent results across the diagnostic instruments and dates of assessment. While not all of the symptoms supportive of a 50 percent rating have been documented, resolving any reasonable doubt in the Veteran's favor, the Board finds that the medical and lay evidence of record supports a finding of reduced reliability and productivity. However, at no point during the period of the appeal, has the Veteran's service-connected PTSD been shown to have met the criteria for the higher rating of 70 percent. The evidence does not show that the Veteran has had occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Although the July 2013 psychologist found that the Veteran had total social and occupational impairment, the March 2014 and November 2016 VA PTSD examiners noted that he had a long and successful employment history, maintained effective family, social, and work relationships, and engaged in multiple leisure activities. Additionally, VA PTSD examination reports noted that the Veteran's appearance was appropriate, he was oriented to person, place, and time, and he exhibited no delusions, hallucinations or suicidal ideations. Taken together with the other evidence noted above indicating at most moderate PTSD, with few, if any, of the symptoms described under the 70 percent rating, the Board finds that a higher rating is not warranted. Accordingly, the Board finds that an increased rating in excess of 50 percent for PTSD is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board has considered the Veteran's claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). IHD The Veteran's service-connected ischemic heart disease is rated as 60 percent pursuant to the criteria of 38 C.F.R. § 4.104, Diagnostic Code 7005. Under Diagnostic Code 7005, a 60 percent rating for ischemic heart disease is warranted for more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104. A 100 percent rating for ischemic heart disease is warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. Generally, VA treatment records, from June 2009 to May 2017, showed the Veteran had a normal heart with no murmurs, clicks, rubs or gallops. However, in March 2010, the Veteran reported shortness of breath and dizziness during times that he bent over in the last week. In January 2011, the Veteran underwent a VA examination and Cardiology Stress Test. He reported that he could walk a mile and go up one flight of steps, but he did experience some shortness of breath with exertion. However, he denied any chest pain, dizziness, palpitations, or headaches. He performed yard work and gardening, and went golfing. His METS were between 8 and 9, and he was asymptomatic. His heart was normal and no murmurs were present. His ECG and chest X-ray were within normal limits and his August 2010 lab results revealed no significant abnormalities. He was diagnosed with coronary artery disease. During the cardiac stress test, the Veteran developed fatigue and dyspnea resolving with rest. He achieved a workload of 7 METS at a heart rate of 102. His left ventricular ejection fraction (LVEF) was normal at 63 percent. An April 2011 private medical record documented a LVEF between 55 to 60 percent. In 2012, the Veteran complained of fatigue, dyspnea, and chest heaviness and pain. Additionally, he felt dizzy with higher doses of his prescription medication. VA treatment records revealed a LVEF of 65 percent in January and it was estimated between 55 to 60 percent in September. In October, his LVEF was not equal to or less than 40 percent. Similarly, in early 2013, the Veteran reported symptoms of angina, fatigue, and dyspnea. However, his symptoms had periods of improvement. He could walk approximately two miles per day without stopping. See January and February 2013 VA treatment notes. At a March 2013 VA examination, the Veteran reported shortness of breath, fatigue and angina with exertion (METS 3 to 5). He had a normal LVEF. He did not have congestive heart failure, cardiac hypertrophy or dilatation. He took daily nitrate for angina and as needed sublingual NTG. His ischemic heart disease (IHD) impacted his ability to work. The examiner noted that the objective ejection fraction was a more accurate reflection of the Veteran's cardiac condition because it was not subjectively influenced by other non-cardiac factors such as age and lifestyle. In September 2013, the Veteran was moderately active. He had dyspnea and reported he only got a little chest pain in the morning but not during the day after taking his medication. The Veteran's March 2014 VA examination results were similar to the March 2013 VA examination. For the initial rating period, the aforementioned evidence reflects that the Veteran's IHD was productive of normal LVEF and a workload of 3 to 5 METs resulting in dyspnea, fatigue, angina, and dizziness. The Board has considered the lay testimony and statements regarding the severity of the Veteran's symptoms. See April 2011 Correspondence; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the lay evidence does not establish a greater degree of functional impairment. For the foregoing reasons, the Board concludes that an initial rating in excess of 60 percent is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert supra. The Board has considered the Veteran's claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette, 28 Vet. App. at 369-70. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 50 percent for PTSD is denied. An initial rating in excess of 60 percent for ischemic heart disease is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs