Citation Nr: 1805818 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-35 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to and a higher rating for PTSD, rated as 70 percent disabling during the period on appeal. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD E. Alexander Neff, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from March 1969 to October 1970. His awards and decorations included: an Army Commendation Medal with a "V" device and one Bronze Oak Leaf Cluster; a Vietnam Service Medal with two Bronze Service Stars; a Vietnam Campaign Medal; a Combat Medical Badge; a Bronze Star Medal with a "V" device; and a Purple Heart. The Board sincerely thanks him for his service to his country. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado In his December 2013 VA Form 9, the Veteran requested to attend a Video Conference before the Board. However, in November 2017 the Veteran withdrew his request for a Board hearing. As such, this request is withdrawn. FINDING OF FACT During the period on appeal, the Veteran was not shown to have total occupational and social impairment due to his service-connected PTSD. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. PTSD A. Higher Evaluation The present appeal involves the Veteran's claim that the severity of his service-connected PTSD warrants a higher disability rating. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. A disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id at § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the record, 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 of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided. B. Pertinent Rating Criteria During the period on appeal, the Veteran's PTSD has been rated as 70 percent disabling pursuant to Diagnostic Code 9411. PTSD is rated under the General Rating Formula for Mental Disorders. 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "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 (Fed. Cir. 2013). Furthermore, 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. C. Factual Background and Analysis Historically, the Veteran's claim for entitlement to service connection for PTSD was granted in January 2011. His PTSD was assessed as 30 percent disabling, effective July 9, 2010. The Veteran did not appeal this decision within one year, and as such it became final. In February 2012, the Veteran filed a claim for an increased rating for PTSD. In October 2012, the Veteran's PTSD was assessed as 70 percent disabling effective February 8, 2012, the date of claim. As an initial matter, the Board notes that the relevant medical evidence presented is mostly inclusive of the VA medical examinations that the Veteran attended in July 2012 and September 2014. The Board notes that the record contains additional medical records in reference to the Veteran's mental health, including reports from group therapy sessions associated with the Veteran's treatment at times. However, the additional evidence of record does not present findings regarding the Veteran's PTSD that significantly expands upon, revises, or contradicts the findings of these two examinations. In the July 2012 VA examination, the Veteran reported that he had difficulty inhibiting his anger, and he would frequently become angry due to "little things." He had verbal outbursts at movie theaters and large stores, and thus no longer went to such places. He had difficulty with irritability, and had outbursts several times a week towards his wife and strangers. He denied having physical outbursts. He had "a great deal of difficulty" with stressful situations." He was very hypervigilant as to his surroundings; however, he and his wife were able to take trips. He found that dealing with airport security was difficult, and he "exploded" at other plane passengers. He could not go on tour buses with others. He experienced sleep difficulties where he would wake up every hour. He would typically wake up anxious from his nightmares, which occurred three times a week. He was observed to have cried intermittently throughout the examination in the context of a recent movie theater shooting. The Veteran reported that he belonged to a group that enjoyed going to car shows, and he would attend these. If he went to a store he would go in and out as quickly as possible. He had two close friends, including his neighbor whom he saw often. His irritability significantly impacted his marriage; however, he was close to his daughter and wife. He lived on an acre plot which kept him busy, preventing him from obsessively thinking about Vietnam, and provided solitude. He typically spent his days working outside. The Veteran was observed to report symptoms associated with depression which occurred after he was triggered by a PTSD-related memory. He reported that he could work through his depression, and that it was not persistent. The Veteran denied manic and psychotic symptoms. However, he did report that he sometimes thought he heard people fleetingly call his name, and he saw shadows in his peripheral vision. He denied generalized anxiety or panic attacks, obsessive or ritualistic behavior, or any inappropriate behavior. Objectively, the Veteran was noted to persistently re-experience traumatic events, and he avoided stimuli associated with trauma. He had persistent symptoms of: increased arousal, to include irritability or outbursts of anger hypervigilance; difficulty concentrating; and an exaggerated startle response. He was found to have symptoms of: anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; and difficultly in adapting to stressful circumstances, including work or a worklike setting. It was noted that the Veteran's auditory and visual disturbances were related to his PTSD; however, there was no formal diagnosis of auditory hallucinations. The Veteran was capable of managing his own finances. It was noted that the severity of the Veteran's PTSD had worsened due to his retirement, as he now had less structure and more time to think about Vietnam. The examiner opined that the Veteran's level of impairment was occupational and social impairment with reduced reliability and productivity. He was observed as fully oriented. There was no impairment of thought processes, and there were no delusions or hallucinations. His behavior was appropriate throughout the examination. His mood and affect were within the normal range of function; however, it was noted that he did cry in the context of discussing the movie theater shooting. He had no suicidal or homicidal ideation, intent, or plan. Likewise, there was no history of suicidality or homicidally. He was able to maintain minimal personal hygiene and other basic activities of daily living. His capacity for insight was within the normal range. In the December 2013 VA Form 9, the Veteran argued that his PTSD should have been rated as 100 percent disabling because his occupational impairment was total and permanent. He stated the severity of his PTSD precluded substantial employment, and he had not worked for the last three years due to his PTSD. He believed that his "occupational inability to continue working" should be rated as 100 percent disabling. He disagreed with the July 2012 examiner's findings regarding the severity of his symptoms of anxiety, suspiciousness, and chronic sleep impairment. He argued that his symptoms were worse than assessed. The Veteran also argued that the duration of the examination, 30 minutes, was inadequate. In a December 2013 employment information form, the Veteran reported that he last worked as a firefighter in January 31, 2010. He noted that he had retired from this position. He reported that he had lost 480 hours of time in the last 12 months of his employment due to disability. In an application for increased compensation based on unemployability, the Veteran noted that he left this position due to his disability. He had not tried to obtain employment since he became too disabled to work. He reported that he was awarded a Bachelor's of Science in automotive service technologies in June 1974. He did not have any education or training since he became too disabled to work. In a March 2014 medical record, the Veteran expressed occasional homicidal ideation, often due to road rage. In an April 2014 medical record, the clinician noted that the Veteran appeared to have significant social, occupational, and familial difficulties. In another medical record from this time, the Veteran reported that he had retired four years prior, and since then has had an increase in PTSD symptoms. He could no longer watch the news, and he was intolerant of inconsiderate people. He decided to seek treatment due to his increasing inability to tolerate irritation in his life. In a July 2014 medical record, it was noted that the Veteran would check the perimeter of his house. The following August, the Veteran was noted with a moderately high level of anxiety, and complained of his stress level. In a September 2014 statement, received in October 2014, J. S. reported that he was the Veteran's subordinate at the fire station for five years. He observed the Veteran have numerous outbursts at work, and some were related to "very minor issues." Most "tirades" were directed at non-fire department personnel, and sometimes towards members of his shift, or other firefighters. Most of his outbursts were verbal, and none where physical. It was noted that "no one was immune to his outbursts," including his family members. In another statement from this time, B. W. reported that he had worked with the Veteran and that he "demonstrated many instances of high emotion out-breaks that were very unprofessional." Such outbursts were directed at his crew and clients. The Veteran was unable to handle stressful situations. The people assigned to work under him wanted to leave at the first chance, and nobody wanted to be around him. In a September 2014 statement, received in October 2014, the Veteran's wife reported that the Veteran would be "set off" by the smallest things, but "some of the bigger things seemed to go unnoticed." He also could be angry one minute, and then act as if nothing had happened a very short time later. It was noted that the Veteran was a perfectionist, and that he was always criticizing her. It was alluded that an issue existed between the Veteran and some family members, and that the Veteran refused to contact some of his family members despite the passage of time. However, the Veteran was noted as very fond of his daughter. He was an aggressive driver, and appeared preoccupied when driving. She noted that she was not afraid of the Veteran. He had never harmed her, and she knew that he never would. She reported that she has always been "cautious not to push him too far." In the September 2014 VA examination, the Veteran continued to report symptoms of hyperarousal, including: feeling edgy/jumpy, being on guard, and needing his back to the wall with a clear view of the door in all settings. The examiner noted that the severity of the Veteran's symptoms appeared to be consistent with his last examination. However, it was noted that the Veteran reported increased irritability and social avoidance. He was observed as an adequate historian. Socially, over the past two years, the Veteran reported that he had become more isolated; however, he would periodically visit a friend. He went to the grocery store when necessary, but he reported increased irritability and anxiety in these situations. When driving, or in public, he was easily irritated by others and felt that this had worsened since he retired four years ago. When discussing a friend who had moved away, the Veteran cried about the loss of this friendship. He did have a few other acquaintances that he visited periodically. He described a generally distant relationship with his wife. Upon diagnostic testing, the Veteran was noted to possibly have a neurocognitive disorder; however, there was no clinical indication of same. The examiner opined that the Veteran's mild cognitive difficulties appeared to be encompassed by concentration and motivation problems associated with his PTSD. The Veteran had been unemployed since the last examination. In his prior employment, he reported he had frequent angry outbursts in the workplace aimed at co-workers and customers. The Veteran indicated that his irritability and intolerance of others had worsened, and he felt that he would be unsuccessful in any employment venture. The examiner found that the Veteran continued to display a full range of PTSD symptoms, however, his irritability and angry outbursts greatly contributed to his social and occupational impairment. She opined that the Veteran would not likely be able to engage in completing simple tasks in a loosely supervised environment due to his PTSD symptoms. She found that his level of occupational and social impairment was found to be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Objectively, he had intrusive symptoms, and avoided stimuli associated with trauma. He had negative alterations in cognition and mood associated with trauma. He had marked alteration in arousal and reactivity, to include: irritable behavior and angry outbursts, hypervigilance, problems with concentration, an exaggerated startle response, and sleep disturbances. These symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. He was also found to have symptoms of: anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. He was alert and fully oriented. There were no mannerisms, tics, or gestures. His mood was "pissed off" and his affect was congruent with his mood and had a restricted range. He did not report suicidal or homicidal ideation. He denied delusions and hallucinations. His insight, judgment, and impulsivity were intact. His hygiene was good, and he was able to maintain activities of daily living including personal hygiene and some household chores. There was no report of inappropriate behavior, and he was competent to handle his finances. In a July 2015 medical record, the Veteran noted that he continued to struggle with driving as he was easily frustrated with other drivers. However, he would mentally prepare himself before he went out on the road. In September 2015, the Veteran reported that he would attend professional football games. In January 2016, the Veteran went on a vacation to Costa Rica with his family. He found the trip difficult because of the environment, as he experienced some flashbacks related to the rain forest climate. It was noted that he was able to "refocus" and was able to enjoy his trip. In March 2016, the Veteran again reported difficulties with driving, but advised that he would set a plan when traveling to minimize his frustrations. He requested a letter to excuse him from jury duty. The clinician noted that such a request was appropriate as the Veteran had difficulty being around others and his PTSD symptoms would inhibit his ability to serve on a jury. In May 2016, the Veteran noted difficulties driving, and accepted that some people would drive poorly. He reported that if he encountered such a driver he would change lanes and keep a safe distance. In a June 2016 VA medical record, the Veteran presented as extremely anxious, fidgeted in his chair, and appeared to have a nervous cough. He was observed as very hypervigilant of his surroundings. In November 2016, the Veteran reported improvements with medication, and that he felt more tolerant of things that may have frustrated him in the past. In a February 2017 VA medical record, the Veteran reported a vast improvement of his symptoms since he began treatment. In March 2017, the Veteran reported that he would go out to coffee with his friends once a week. However, it was noted that he still experienced, in part, social and familial problems. In June 2017, the Veteran reported that he sometimes on occasion would hear his name called out, but denied visual hallucinations. Upon consideration of the foregoing, the Board does not find that a 100 percent rating for the Veteran's PTSD is warranted during the period on appeal. Throughout the period on appeal, the Veteran maintained familial relationships, had friends he would socialize with, attended car shows, and went on vacation. As such, the Board finds that the Veteran's social interactions did not more nearly resemble total social impairment than not. Further, the Veteran was not demonstrated to have a gross impairment of thought processes or communication. Although he reported that he experienced hallucinations, they were not of a frequency or severity to be considered persistent. Additionally, while the Veteran was noted to be irritable/angry and to yell at others in various contexts, the frequency and severity of these outbursts did not meet the level of grossly inappropriate behavior. Additionally, the Veteran was not shown to have physical outbursts of irritability and/or anger. The record also demonstrates that the Veteran infrequently expressed homicidal ideation often in the context of road rage. However, this too was not to the extent, frequency, or severity that would rise to the level of a persistent danger to harm others or himself. Importantly, the record demonstrates that the Veteran developed methods to reduce and avoid his road rage, and that he did not plan or act upon such ideation. Finally, the record does not show that the Veteran experienced an intermittent inability to perform activities of daily living; was disorientated as to time or place; or experienced memory loss for names of close relatives, his occupation, or his own name. As such, the Board finds that the Veteran's overall disability picture does not more closely equate to the criteria of a 100 percent rating for PTSD. Thus, the claim is not warranted. The Board acknowledges the Veteran's contentions in the December 2013 VA Form 9 that the July 2012 VA examination was insufficient on the basis it did not properly assess the severity of his symptoms, and that the examination was not a sufficient length of time. The Board observes that the Veteran has not been shown to possess the requisite medical training, expertise, or credentials to provide competent evidence regarding the objective assessment of the severity of his psychiatric symptoms, or of the sufficiency of a medical examination due to the amount of time it took to complete. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Cox v. Nicholson, 20 Vet. App. 563 (2007). Thus, this lay evidence does not constitute competent medical evidence. VA operates under the benefit of a presumption "that it has properly chosen a person who is qualified to provide a medical opinion in a particular case" and that the VA examination process includes providing a competent and ethical examiner. Parks v. Shinseki, 716 F.3d 581, 583 (Fed. Cir. 2013). That said, even though the law presumes the VA has selected a qualified person, the presumption is rebuttable. Bastien v. Shinseki, 599. F.3d 1301, 1307 (Fed. Cir. 2010). A Veteran challenging the qualification of a VA-selected examiner must set forth specific reasons why the expert is not qualified to give a competent opinion. Id. In the absence of clear evidence to the contrary, VA medical examiners are presumed competent. Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). As the Veteran did not submit evidence that the VA examiner was incompetent to assess his disability, the Board finds that the 2012 examiner was competent. Notably, the Board observes that the July 2012 examiner's opinions were based upon an examination of the Veteran, and included a historically accurate explanation of rationale that cites to factual data. Thus, the Board finds that it is competent, credible, and probative evidence regarding the severity of the Veteran's PTSD at that time. In summation, a rating in excess of 70 percent for PTSD is not warranted. II. TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU is part of an increased rating claim when such claim is raised by the record. Notably, the Veteran claimed in the December 2013 VA Form 9 that the severity of his PTSD precluded substantial employment, and that he had not worked for the last three years due to this disability. In response a TDIU was awarded in an October 2014 rating decision which addressed only the impact of the Veteran's PTSD on his employability, and assigned an effective date of January 14, 2014, the date he filed his VA Form 21-8940 (Veteran's Application for Increased Compensation Based Upon Unemployability). In that form, he reported that his service-connected PTSD was the disability that prevented him from working since January 31, 2010, the last date he worked full-time as a fire captain. A September 2017 rating decision granted an earlier effective date of December 11, 2013, the date the Veteran reported that he could not work due to the severity of his PTSD disability. Prior to that date, the evidence does not suggest, nor did the Veteran contend, that he was unemployable due to PTSD. As such the issue of Rice is not for consideration prior to December 11, 2013. ORDER A rating in excess of 70 percent for PTSD is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs