Citation Nr: 1804537 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-09 195A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period from July 19, 2012 to October 19, 2014, and in excess of 50 percent for the period from October 20, 2014 to June 7, 2016. REPRESENTATION Veteran represented by: Joseph J. Kundrat, Jr., Agent ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1964 to June 1967. During his period of service, the Veteran earned the Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Marksman Badge (Rifle M-14). This matter comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware, which, in pertinent part, granted entitlement to service-connection for PTSD, evaluated as 30 percent disabling, effective July 19, 2012. The Veteran was granted a 70 percent rating, June 8, 2016, by a December 2016 rating decision. The Veteran agrees with the most recent rating decision of 70 percent; however, he disagrees with the ratings assigned outside of the periods of 70 percent ratings, specifically the 30 percent rating assigned prior to October 20, 2014, and the 50 percent rating assigned from October 20, 2014 to June 7, 2016. Accordingly, the following discussion focuses solely on the aforementioned periods at issue. FINDING OF FACT Throughout the appellate period, the Veteran's service-connected PTSD was manifested by occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, throughout the appellate period, the criteria for a 70 percent initial evaluation for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, 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. 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 worklike setting); inability to establish and maintain effective relationships. 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. 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 the 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 his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), 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." It was further noted that "§ 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." The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that he is entitled to a rating in excess of 30 percent for the rating period prior to October 20, 2014, and in excess of 50 percent for the period from October 20, 2014 to June 7, 2016 for his service-connected PTSD. In September 2012, the Veteran submitted a private examination report from L. H., of Harper and Associates. The Veteran reported difficulties staying asleep, nightmares, and hyper-vigilance. He also reported that he would often get up during the night to check the windows and slept with a firearm. He reported having flashbacks in the evenings. He had difficulties with driving, as he had panic attacks or found himself extremely angry. The Veteran had few friends and acquaintances through his connection to the biker community in his city; however, he lived alone and had limited support systems. The Veteran reported for a VA PTSD examination in December 2012. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner noted that the Veteran experienced recurrent distressing dreams, avoidance, feelings of detachment or estrangement from others, restricted range of affect, and hypervigilance. The Veteran also displayed symptoms such as depressed mood, anxiety, and chronic sleep impairment. In March 2013, the Veteran submitted a private examination report from L. H., of Harper and Associates. The Veteran reported difficulties with chronic pain, nightmares, low mood, nighttime hypervigilance, panic attacks in traffic, and general irritability. The examiner noted that the Veteran had lost his capacity plan and did not see much of a future for himself. The examiner also observed compliance difficulties as it related to the Veteran's medications. The Veteran reported that he had become more socially isolated due to his inability to work outside of the home, as well as inability to assist others in the neighborhood. This resulted in him feeling very isolated and bitter. Additionally, the Veteran submitted a private review PTSD disability benefits questionnaire (DBQ) executed by L. H. in March 2013. L. H. diagnosed both PTSD with depression and panic disorder. The examiner noted that the Veteran experienced symptoms of depression; isolation from others; inability to sleep; fear of rage; and near constant panic or depression affecting his ability to function independently, appropriately, and effectively. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted that the Veteran experienced recurrent distressing recollections and dreams, avoidance, emotional and physical reactions when recalling his experiences in Vietnam, feelings of detachment or estrangement from others, restricted range of affection, sense of foreshortened future, marked or diminished interest or participation in significant activities, irritability, outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The Veteran also displayed symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals; impaired impulse control; spatial disorientation; and neglect of personal appearance and hygiene. The Veteran reported for a VA PTSD examination in January 2014. The examiner opined that the Veteran had 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 noted that the Veteran experienced recurrent distressing dreams, avoidance, feelings of detachment or estrangement from others, marked or diminished interest or participation in significant activities, hypervigilance, and exaggerated startle response. The Veteran also displayed symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. Dr. T. H. of Vitality Health Associates provided a private opinion in February 2014. The examiner noted that the Veteran relived his service through nightmares, severe flashbacks, road rage; agoraphobia, and panic attacks. The Veteran displayed symptoms such as flashbacks and nightmares of his combat experience in Vietnam, greatly exaggerated startle response, hypervigilance, paranoia, panic attacks, sleep disturbance, outbursts of anger and aggression, and depression. The Veteran also experienced waves of panic, crying, and depression. The examiner stated that the Veteran experienced these symptoms on a daily basis and they had become chronic, persistent, and ever present. As a result, the Veteran had poor social functioning at home and work. The Veteran reported for a VA PTSD examination in October 2014. The examiner opined that the Veteran had 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 noted that the Veteran experienced recurrent distressing recollections and dreams, avoidance, feelings of detachment or estrangement from others, marked or diminished interest or participation in significant activities, hypervigilance, sleep disturbances, and exaggerated startle response. The Veteran also displayed symptoms such as depressed mood, anxiety, suicidal ideation, disturbances in mood and motivation, and chronic sleep impairment. The Veteran reported for a VA PTSD examination in June 2016. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran experienced recurrent distressing recollections and dreams, emotional and physical reactions when recalling his experiences in Vietnam, flashbacks, avoidance, feelings of detachment or estrangement from others, marked or diminished interest or participation in significant activities, irritability, outburst of anger, persistent inability to experience positive emotions, hypervigilance, difficulty concentrating, and exaggerated startle response. The Veteran also displayed symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances in mood and motivation; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; and inability to establish and maintain effective relationships. The examiner also noted that the Veteran had "low energy" during the examination and wondered if he should keep "trying," although he denied suicidal ideations. The Veteran would get upset easily and was not able to handle much stress. He had angry outbursts, avoided people and did not want to socialize. In addition to the medical evidence, the Veteran has provided written statements regarding his PTSD symptoms. This lay evidence is also consistent with the private and VA examination reports. In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board concludes that the Veteran is entitled to a 70 percent evaluation for his service-connected PTSD throughout the appeal period. The medical and lay evidence supports a finding of occupational and social impairment with deficiencies in most areas. The VA and private examiners found the Veteran had roughly consistent symptomatology. The Veteran has consistently reported symptoms that include nightmares, anxiety, suspiciousness, suicidal ideation, obsessional rituals, mild memory loss, depression, social isolation, irritability, outbursts of anger, difficulty concentrating, and difficulty being around people. The effect of these symptoms is occupational and social impairment deficiencies in most areas. Thus, the Board will afford the Veteran the full benefit-of-the-doubt and find that the totality of the evidence favors the assignment of an initial 70 percent rating. Although an increased rating of 70 percent is warranted, the evidence of record does not reflect symptoms that would meet the criteria for a 100 percent rating for any period of time during the pendency of the claim. Although the presence or absence of certain symptoms is not dispositive to the issue of the proper disability rating, the presence or absence of symptoms is useful in determining the severity of the condition. There is no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or, memory loss for names of close relatives, own occupation, or own name. Although the March 2013 DBQ notes that the Veteran has displayed neglect of personal appearance and hygiene, the evidence does not establish an intermittent inability to perform activities of daily living. The treatment records and multiple VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 100 percent. Rather, while the evidence of record demonstrates significant impairment in occupational and social functioning, it does not show total occupational and social impairment to warrant an increased rating of 100 percent. While the Veteran has expressed that he has few friends, the evidence of record shows that he has acquaintances through his connection to the biker community in his city. Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 70 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Hart, supra. Based on the foregoing, the Board finds that the Veteran's symptoms do not more nearly approximate both total social and total occupational impairment as required to warrant a 100 percent rating for the appellate period. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 100 percent have not been met or approximated during this period on appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9411. For all the foregoing reasons, the Board finds that a 70 percent initial rating, but no higher, is appropriate for the entire period on appeal. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating of 70 percent for PTSD is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs