Citation Nr: 1804386 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 16-18 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to November 23, 2016. 2. Entitlement to an increased rating in excess of 70 percent for PTSD from November 23, 2016. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Board remanded the claim for further 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) (2012). FINDINGS OF FACT 1. Prior to November 23, 2016, the Veteran's PTSD did not result in more than occupational and social impairment with reduced reliability and productivity. 2. From November 23, 2016, the Veteran's PTSD did not result in manifestations that more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to November 23, 2016, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 5107, 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130 Diagnostic Code 9411 (2017). 2. From November 23, 2016, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veteran's Claim Assistance Act of 2000 (VCAA) VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not 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). II. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate diagnostic codes identify the various disabilities. 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide that a 30 percent evaluation is warranted 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). 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 effective work and social relationships. Id. A 70 percent evaluation 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. 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 remission. 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran contends that his disability is more severe than the 50 percent rating depicts. See VA 21-526EZ Application for Benefits entered in Caseflow Reader in December 2014. A. Rating in excess of 50 percent for PTSD prior to November 23, 2016. In June 2015, the Veteran was afforded a VA examination to determine the severity of his PTSD. The examiner reviewed the Veteran's e-folder and performed an in-person examination. The Veteran stated that he had lived with girlfriend for the past four years. She helped him track his appointments and comply with medication dosing. The Veteran had almost daily contact with his friends. He watched TV, read, and played cards with his neighbor. He did not help with chores due to physical problems; however, he went to the grocery store and restaurants one or two times a week. He showered and cleaned his teeth every day. He dressed daily unless his hip pain worsened. The Veteran stated that he could not watch CNN especially at night as it might increase his nightmares. When reminded of Vietnam, the Veteran denied any physical reactions. The Veteran avoided groups of veterans or soldiers because he did not want to hear about their experiences. He stated that he dreamt about Vietnam about three to four times a month. The Veteran denied homicidal and suicidal ideation, intent, or plan. The Veteran stated that about two times per week, his sleep was delayed about two hours; otherwise, he had a good onset. He stated that he woke up two to three times a night to use the bathroom or for no clear reason. About six to eight months prior to the exam, the Veteran stopped drinking alcohol. The examiner noted that the Veteran's grooming and hygiene were good. He was fully oriented times four. His eye contact was good, and he was pleasant and cooperative. His mood was "pretty good" and his affect was broad and congruent to speech content. On occasions, the Veteran used humor. His speech was at a normal pace, rhythm, and volume. His thought process was linear and logical. There was no sign of a thought disorder, delusions, or hallucination. Regarding his memory, the examiner stated that there were no obvious concerns about his memory, and he appeared to be an adequate historian. The Veteran's symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions, or recent events, and difficulty adapting to stressful circumstances, including worklike setting. The Veteran also experienced hypervigilence, exaggerated startled response, problems concentrating, and sleep disturbances. He had markedly diminished interest or participation in significant activities and felt detached or estranged from others. The Veteran avoided or made efforts to avoid distressing memories, thoughts or feelings and external reminders that remind him of the traumatic event. The Veteran had recurrent, involuntary, and intrusive distressing memories and dreams related to the traumatic event. The Veteran was capable of managing his financial affairs. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner confirmed the Veteran's PTSD diagnosis. The examiner noted that it did not appear that his PTSD had changed significantly since his last VA examination in August 2012. In January 2016, the Veteran was seen at the Ashville VAMC. The Veteran stated that he was experiencing sleep disruption, nightmares, night sweats, anxiety, and mood changes. See Capri entered in Caseflow Reader in August 2017, p. 167-68. The Board finds that the Veteran's overall disability picture more nearly approximates the criteria for a 50 percent rating. The Board notes that the Veteran had difficulty adapting to stressful circumstances, including work or worklike settings which correlates to a 70 percent rating. However, when considering the totality of his disability picture, the Board finds that the Veteran has not been shown to have occupational and social impairment with deficiencies in most areas as contemplated by the 70 percent criteria. The Veteran's speech was at a normal pace, rhythm, and volume. He did not report delusions or hallucinations and denied suicidal and homicidal ideations. There was no indication of obsessive rituals which interfered with the Veteran's routine activities. The Veteran experienced panic attacks; however, the attacks did not occur on a near-continuous basis but on a weekly or less often basis. The Veteran was oriented to time, place, person, and circumstance. The examiner noted mild memory loss such as forgetting names, directions or recent events but noted that there were no obvious concerns with the Veteran's memory and the Veteran was an adequate historian. The Board finds it significant that the Veteran had a significant other and almost daily contact with his friends. The Board finds that based on the foregoing, the Veteran's psychiatric symptoms do not result in more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas. In reaching the foregoing decision, the Board acknowledges the Veteran's statements and belief that he is entitled to a higher rating, but the Board finds that a rating in excess of 50 percent for PTSD is not warranted under the applicable rating criteria. See Fenderson, supra. In sum, a preponderance of the evidence is against the assignment of a rating in excess of 50 percent for PTSD prior to November 23, 2016. B. Rating in excess of 70 percent for PTSD from November 23, 2016. In November 2016, the Veteran was afforded a VA examination to determine the severity of his PTSD. The examiner reviewed the e-folder and CPRS and performed an in person examination. The Veteran stated that he lived with his girlfriend of five years. He described the relationship as "real good because she helps me a lot . . . ." The Veteran regularly interacted with his three children and grandchildren. The Veteran reported having friends but did not see them much as everyone had their own lives. The Veteran was taking medication to help keep him calm. The examiner noted that the Veteran arrived 15 minutes early for his appointment. He was neatly and casually dressed. He was cooperative with the interview process and made good eye contact. He was fully oriented. His speech was somewhat mumbled, but he could be understood. His mood was "pretty good" and his affect was broad and congruent with thought content. Sometimes, the Veteran was jovial. His thought process was logical and goal-directed. His thought content was relevant and with adequate detail. His gross concentration and memory were adequate. There was no evidence of thought disorder or hallucinations. The Veteran denied homicidal or suicidal ideation. The examiner noted hypervigilence, exaggerated startled response, problems concentrating, depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events and difficulty adapting to stressful circumstances, including a worklike setting. The Veteran experienced markedly diminished interest or participation in significant activities and felt detached or estranged from others. He avoided or made efforts to avoid intrusive distressing memories, dreams, thoughts or feelings and external reminders that remind him of the traumatic event. He also had dissociative reactions in which he felt or acted as if the traumatic event was still reoccurring. The Veteran was capable of managing his financial affairs. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner confirmed the PTSD diagnosis. In January 2017, the Veteran was seen at the Ashville VAMC: Addendum. See Capri entered in Caseflow Reader in August 2017, p. at 118. The Veteran's PTSD symptoms included increased night sweats and dreams. He was taking Venlafaxine 150 mg daily for PTSD. See id. at 119. When considering the totality of his disability picture, the Board finds that the Veteran has not been shown to have such impairment as contemplated by the 100 percent criteria. In this regard, there was no evidence of gross impairment of thought processes or communication. The Board notes that during the examination, the Veteran's speech was somewhat mumbled, but he could be understood. The Veteran did not report delusions or hallucinations, and he denied suicidal or homicidal ideations. There was no indication that the Veteran had expressed grossly inappropriate behavior. He was oriented to time, place, person, and circumstance. The Veteran's gross concentration and memory were adequate. The Board finds that based on the foregoing, the Veteran's psychiatric symptoms do not result in more severe manifestations that more nearly approximate total occupational and social impairment. In sum, a preponderance of the evidence is against the assignment of a rating in excess of 70 percent for PTSD from November 23, 2016. ORDER Entitlement to an increased rating in excess of 50 percent for PTSD prior to November 23, 2016 is denied. Entitlement to an increased rating in excess of 70 percent for PTSD from November 23, 2016 is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs