Citation Nr: 1804139	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  13-22 749	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an increased rating for posttraumatic stress disorder (PTSD) rated as 30 percent disabling.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

C. Taylor, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1968 to December 1970. The Veteran served in the Republic of Vietnam from July 1968 to July 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A Notice of Disagreement (NOD) was filed in October 2011. A Statement of the Case (SOC) was issued in May 2013. A substantive appeal (VA Form-9) was filed in June 2013. A Supplemental Statement of the Case (SSOC) was issued in February 2016.

In April 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. 

The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development in July 2015. The appeal is now before the Board for further appellate action.  

When an appeal is certified to the Board for appellate review and the record is transferred to the Board, the Veteran and his or her representative, if any, will be notified in writing of the certification, transfer, and 90-day time limit, or until the date the appellate decision has been promulgated, whichever comes first, in which a request for a change in representation, a request for a personal hearing, and submission of additional evidence can occur. 38 C.F.R. §§ 19.36, 20.1304(a) (2017). In a March 2016 letter, the Veteran was notified that his appeal was transferred to the Board for appellate review and that he had 90 days to request a change in representation. The Veteran did not submit a timely request for a change in representation and has since filed an increased rating claim for ischemic heart disease in August 2017 using a new representative for which he was awarded a 100 percent rating.  The Disabled American Veterans (DAV) is the representative of record associated with the instant appeal.  An Informal Hearing Presentation was prepared by DAV on behalf of the Veteran in August 2017.  As such, the Board rejects any change in the representative with respect to the instant appeal by reason of failure to provide good cause for the delay as required by 38 C.F.R. § 20.1304 (b) for any change in representation after the 90-day period has expired. 

The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. 


FINDING OF FACT

The Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency, although generally functioning satisfactorily with routine behavior, self-care, and symptoms such as depressed mood, anxiety, and chronic sleep impairment of which the severity, frequency, and duration most nearly approximates symptoms contemplated by a 30 percent disability rating.


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1114, 5103, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

In an August 2011 letter, VA notified the Veteran of the evidence required to substantiate his claim. The Veteran was informed of the evidence VA would attempt to obtain and of the evidence that the Veteran was responsible for providing. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5103, 5103A; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See 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). The Board finds that the VCAA requirements to notify and assist have been satisfied in this appeal.

II. Increased Rating 

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; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 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. 

The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a) (2017). In addition, the evaluation must be 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.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). 

The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013).  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 or circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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; and difficulty 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 work-like setting); and inability to establish and maintain effective relationships.

A 100 percent rating 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; and memory loss for names of close relatives, own occupation, or own name.

Throughout the rating period on appeal, the Veteran's PTSD has been evaluated as 30 percent disabling. The pertinent evidence of record during the rating period includes VA and private treatment records and August 2011 and September 2015 VA PTSD examination reports. 

The August 2011 VA PTSD examination confirmed the Veteran's PTSD diagnosis and diagnosed the Veteran with alcohol dependence.  The Veteran reported drinking 2 to 8 beers daily to calm himself down and to avoid thinking about his past military experiences and anger about current political issues.  The Veteran's PTSD symptoms account for nightmares, intrusive memories, and avoiding talking/thinking about his military experiences. The Veteran reported a depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran described his relationship with his wife as "iffy" and reported getting along well with his two sons. The Veteran also reported spending time with his two friends and that his hobbies included yardwork and deer hunting. The Veteran's occupational and social impairment manifested as 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. According to the VA psychologist, the combination of PTSD and alcohol dependence both likely affected the Veteran's sleep, depressed mood, and irritability.

In an August 2011 Statement in Support the Claim, the Veteran reported that his Lexapro anti-depressant medication dosage was increased from 10 mg to 20 mg. In a separate statement, the Veteran's wife described the Veteran as very moody and easily angered. The Veteran's wife asserted that the Veteran would get upset discussing the "war" or the government. She also claimed that the Veteran's sex drive was very low since he began taking Lexapro. 

A June 2013 private treatment note indicated that upon objective psychiatric evaluation, the Veteran was alert, oriented, lucid, and appropriate. The private clinician described the Veteran's thought, speech, and memory as intact.

During the April 2015 hearing, the Veteran testified that he gets depressed after reading the news. He stated that he experienced chronic sleep impairment and that he isolates socially, preferring minimal social engagement. The Veteran testified that he had recurring nightmares, impaired judgement, and difficulty "doing everyday things." The Veteran also testified that he retired due to an injury and his PTSD and he believed that he could not secure employment. The Veteran's wife also testified at the hearing and asserted that the Veteran displayed unprovoked irritability; however, he was not suicidal or homicidal. The wife asserted that the Veteran's ability to perform activities of daily living (ADL) were impaired. 

In August 2015, the Veteran was afforded a VA PTSD examination. The Veteran reported depressed mood, anxiety, and chronic sleep impairment. The Veteran remained married to his wife of 29 years; but, reported that he argued with his wife more. The Veteran reported a "fine" relationship with his two sons and that he enjoyed "hunting and drinking beer" with friends. The Veteran presented well groomed, his mood/affect was mildly irritable, but he did not appear unusually anxious. The Veteran's speech was normal and easily understood. His thought processes were logical and goal-oriented. There were no signs of psychosis or unusual behavior.  The Veteran's occupational and social impairment manifested as 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. According to the VA psychologist, the Veteran's PTSD symptomatology was fairly consistent with his previous August 2011 PTSD examination. The psychologist opined that the Veteran's mild PTSD with a predominant symptom of irritability would only result in occasional occupational difficulties in working in a high-stress, noisy, public setting. The Veteran's mental health symptoms alone did not appear to result in severe functional or occupational impairment. The Veteran was able to communicate effectively, follow at least simple instructions, interact appropriately with others, care for himself in respect to all personal and domestic ADLs, and make adequate decisions.  

In a March 2016 statement, the Veteran contended that he had difficulty focusing and sleeping without medication.

After carefully reviewing the evidence of record, the Board finds that the Veteran's PTSD has not more nearly approximated the criteria for a higher rating of 50 percent under DC 9411. The probative medical evidence shows that the impairment from the Veteran's PTSD more nearly approximates occupational and social impairment contemplated by a 30 percent rating, rather than 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 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; difficulty establishing and maintaining effective work and social relationships, or symptoms contemplated by a 50 percent rating.

In so finding, the Board observes the VA PTSD examination reports, which consistently indicated that the Veteran's service-connected PTSD manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks with symptoms such as depressed mood; anxiety; irritability; and chronic sleep impairment, the type, frequency, severity, and duration of which more nearly approximates symptoms which are contemplated by a 30 percent evaluation. The Veteran's symptoms, as found in his private and VA treatment records, in combination with the results of his VA PTSD examinations, indicated that the Veteran is generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran does not exhibit reduced reliability and productivity, he is not deficient in several areas, including work, social and family settings, and he is not totally impaired, all of which are symptoms contemplated by higher disability ratings.  While the VA examiner in August 2011 noted that the Veteran complained of disturbances of motivation and mood, ultimately, the VA examiner described the overall disability picture as more productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform certain tasks.  

Additionally, the September 2015 PTSD examination indicated that the Veteran's thought processes were logical and goal-oriented. According to the VA psychologist, who examined the Veteran in August 2011 and in September 2015, the Veteran's PTSD is mild with a predominant symptom of irritability, which is not accompanied by periods of violence.  The psychologist determined that the Veteran's mental health symptoms alone do not result in severe functional or occupational impairment. Most critically, the psychologist rendered the clinical assessment that the Veteran is in fact able to communicate effectively, follow instructions, has logical thought processes, possesses adequate decision making skills, and can care for himself in all aspects of ADLs notwithstanding the Veteran self-diagnosing himself as suffering from impaired judgement and the Veteran's wife noting that the Veteran's ability to perform ADLs was impaired.  The Veteran has also maintained effective social relationships. The Veteran remains married to his wife of more than 25 years, gets along well with his two sons, and enjoys hunting with friends. There is no objective evidence that the Veteran exhibited flattened affect, speech difficulty, memory impairment, or impaired judgment/thinking as contemplated by a 50 percent rating. 

Although the Veteran's contentions are, but not limited to, that he has depressed moods, anxiety, irritability, chronic sleep impairment, decreased social interactions, the type, frequency, severity, and duration of his symptoms more nearly approximate that which are contemplated by a 30 percent evaluation.  With regards to the Veteran's assertions, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  The Veteran is competent to describe current symptoms, such as depression, anxiety, irritability, decreased social interactions, etc.  However, as to the severity of the Veteran's PTSD the Board finds such subject matter to be complex in nature and beyond the competence of a lay person.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition, the claimant is not competent to provide evidence as to more complex medical questions).  Thus, the greatest weight is placed on the August 2011 and September 2015 PTSD examination findings in regard to the type and degree of the Veteran's impairment.

Lastly, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  During the course of the appeal seeking an increased rating for PTSD, the Veteran claimed that he retired, in part, due to his service-connected PTSD.  As noted above, the VA psychologist opined that the Veteran's mild PTSD with a predominant symptom of irritability would only result in occasional occupational difficulties in working in a high-stress, noisy, public setting.  The Board finds that there is no credible persuasive evidence that suggests that the Veteran's PTSD alone renders him unemployable.  Therefore, the Board finds that no further action on this issue is necessary.

As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

 
ORDER

Entitlement to an increased rating for PTSD, rated as 30 percent disabling, is denied. 



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs