Citation Nr: 18140829 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 10-13 253 DATE: ORDER Entitlement to an initial rating of 50 percent, but no higher, prior to February 11, 2016, for posttraumatic stress disorder (PTSD) is granted. Entitlement to a disability rating in excess of 70 percent as of February 11, 2016, for PTSD is denied. FINDINGS OF FACT 1. With resolution of any reasonable doubt in his favor, prior to February 11, 2016, the Veteran’s service-connected PTSD resulted in symptoms causing occupational and social impairment with reduced reliability and productivity, but not deficiencies in most areas. 2. As of February 11, 2016, the Veteran’s service-connected PTSD resulted in symptoms causing occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to February 11, 2016, the criteria for an initial rating of 50 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. As of February 11, 2016, the criteria for a disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was inducted into active service in March 1970 and remained until November 1971. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to an initial rating in excess of 30 percent prior to February 11, 2016; and in excess of 70 percent thereafter for PTSD The Veteran contends that higher ratings for PTSD are warranted. In his November 2009 Notice of Disagreement, the Veteran disagreed with the rating assigned for PTSD as he had “lack of sleep and mind set.” In his April 2010 VA Form 9, he noted an inability to cope with crowds, sleep, and maintain effective work habits; and his short- and long-term memory loss. In the July 2010 VA Form 646, he contended that a higher rating was warranted as he got agitated easily, although he learned how to control his actions. In his January 2012 appellate brief, the Veteran noted that he presented for emergency care in March 2009 due to suicidal ideation, had anxiety once he stopped using heroin and was unable to have a steady job in 2009, had poor insight and some memory impairment in June 2009 with a severe impact on his social functioning and little or no social functioning, had not been out of his home since October 2009, and had limited insight and was socially isolated in March 2010. As discussed below, the Board finds that prior to February 11, 2016, the evidence supports an initial rating of 50 percent, but no higher, for the Veteran’s PTSD. However, the weight of the evidence is against a disability rating in excess of 70 percent thereafter. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. In this case, the RO evaluated the Veteran’s service-connected PTSD as 30 percent disabling prior to February 11, 2016; and as 70 percent disabling as of February 11, 2016, under 38 C.F.R. § 4.130, DC 9411. This diagnostic code is governed by a General Rating Formula for Mental Disorders, which provides for the following rating criteria: A 30 percent rating 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, and/or mild memory loss (such as forgetting names, directions, or recent events). A 50 percent rating 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; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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); and/or inability to establish and maintain effective relationships. A 100 percent rating 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; and/or memory loss for names of close relatives, own occupation, or own name. In the process of evaluating a mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran’s psychiatric symptoms. See 38 C.F.R. § 4.126. After consideration of these factors and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering. 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(b). Ratings are assigned according to the manifestation of particular symptoms, but the use of a 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, 442 (2002). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). In this case, the RO certified the Veteran’s appeal to the Board in July 2010; therefore, this provision does not apply to this claim. Turning to the evidence, a March 2009 VA PTSD clinical intake questionnaire reflects the Veteran’s report of sleep impairment, specifically dreams and night sweats; fear of crowds; and enjoying riding his motorcycle. He complained of depression, low motivation and concentration, fatigue, irritability, forgetfulness, suicidal ideation, insomnia, racing thoughts, angry outbursts, worries or fears, social anxiety, obsessive thinking, anxiety of past trauma, feeling of numbness, flashbacks while awake, and avoidance of people. He stated that he got two to four hours of sleep at night, and that he would forget where he put items such as car keys. He had close relationships with his two adult daughters, and friendly relationships with their mothers. He was very happy with his current girlfriend of six years. He did not have a steady job, but occasionally worked odd jobs, such as laying brick or tile. He was fully alert, oriented, appropriately dressed, well-spoken, and paranoia about people breaking into his house. He had anxious mood with congruent affect, no hallucinations, coherent thought process and associations, homicidal thoughts, good insight, and impulsive judgment related to drug use. He was diagnosed with chronic PTSD with a GAF score of 60. VA treatment records reflect that in March 2009, the Veteran presented to the emergency room and expressed suicidal ideation due to financial and family problems, although he clearly stated that he would never do it because he was “too much of a coward.” He complained of recurring nightmares, often found himself screaming at night, woke up in a cold sweat, and yelled at people in his sleep to “get down.” He was cooperative; alert; and oriented to person, place, and time. He had affect that was congruent with mood, spontaneous speech with normal rate and rhythm, euthymic and calm mood, logical and goal-directed thought content and process, and no hallucinations. He had a GAF score of 60. In April 2009, the Veteran complained of worsening anxiety since he stopped using drugs two months prior, recurring dreams every night, only sleeping two to three hours a night, difficulty concentrating, depression in the winter, thoughts of suicide with no actual intent or plan, and some homicidal thoughts stemming from Vietnam. He stated that he often patrolled his house with a pistol as he was worried about people breaking in, and that he automatically ducked when he saw or heard a helicopter or a loud noise. He had a GAF score of 65. Additionally, an April 2009 addendum reflects that a VA staff psychiatrist opined that the Veteran qualified for very serious PTSD disability, which had “just been covered up by the use of opiates over the years.” In an April 2009 letter, C.D. stated that she had known the Veteran since 2003, and that he lived in her home. He is withdrawn and sullen in social situations. He always had a bat and a long knife next to his bed, did not get a good night’s sleep unless he took some pills, and heard things that she could not hear. In a May 2009 letter, K.T. stated that the Veteran returned him from Vietnam “a wreck.” He screamed and cried aloud, reenacted peeling leeches off his arms while sleeping, and “would wake up swinging.” He became a loner. A May 2009 VA examination report reflects that the Veteran was in contact with both daughters, that he had a girlfriend of six years, that he spent of the day looking for work as he was fully capable of full-time employment, and that he was not involved in any social activity. He was appropriately dressed; neatly groomed; and oriented to person, time, and place. He had unremarkable, spontaneous, clear, and coherent speech; appropriate and full affect; good mood; unremarkable thought process and content; no delusions, hallucinations, or obsessive or ritualistic behavior; panic attacks where he could not be around crowds of people; no homicidal or suicidal thoughts; normal remote, recent, and immediate memory; and a sleep impairment where he only slept two to three hours per night. He was found to have fair impulse control with no episodes of violence, but described an incident where he threated to jump over a table and stab someone at a birthday party because he did not like the way that person talked to him. He was diagnosed with PTSD with a GAF score of 65. In a May 2009 letter, the Veteran was stated to be a patient who presented with signs and symptoms of PTSD. Specifically, he complained of hypervigilance, insomnia, irritability and outbursts of anger, intrusive thoughts and nightmares, a numbing of general responsiveness, and lack of participation in significant activities. VA treatment records from June 2009 reflect that the Veteran was alert, attentive, oriented to all spheres, and appropriately dressed. He had normal rate, rhythm, and volume of speech; depressed mood that was tearful with appropriate affect; no hallucinations or delusions; normal and coherent thought process; no suicidal or violent ideation; poor insight and judgment; and some impairment of memory. His GAF score was 55. In August 2009, S.B. stated that the Veteran was a “totally different person” when he met him again in 1973. He lived with S.B. for seven to eight months, during which time he observed the Veteran having extreme difficulty sleeping, waking up in cold sweats, screaming in the middle of the night, and walking around, which ultimately affected his work habits. The Veteran preferred to work alone, and threatened co-workers to “crack their heads” with a hammer or a 2 x 4. Working full days were “almost impossible because of his chronic back pain.” The Veteran started his own business about five years ago, but “did not do real well” as he took rejection from customers very personally. VA treatment records from March 2010 reflect that the Veteran complained of social anxiety and depression all winter; and denied suicidal ideation, auditory hallucinations, and symptoms suggestive of mania. He lived with a female friend, but was socially isolated and had very poor work history. He was alert; disheveled; and oriented to person, place, and time. He had normal rate and rhythm of speech; blunted, restricted, and constricted affect; depressed mood; no hallucinations; normal and coherent thought process and association; no unusual thought content; no suicidal or violent ideation; limited insight; fair judgment; and grossly intact memory. GAF scores from August 2009 and June 2010 were 58 to 65, respectively. Social Security Administration (SSA) records include a July 2010 Function Report completed by C.D. reflecting that the Veteran wore the same clothes without washing, did not bathe often, needed constant reminders to wash and cut his hair, did not shave for weeks, did not go outside often, and did not really socialize anymore. A September 2010 evaluation report reflects that the Veteran had no hobbies or interests, watched TV, stayed to himself, and was able to take care of daily chores and activities. He had good contact with reality, fair insight, decreased activity and motivation, spontaneous stream of mental activity, nightmares, no hallucinations or paranoia, no suicidal ideation, no mood swings or gross delusion, depression, anxiety, and blunted affect. The examiner stated that the Veteran had moderate functional impairment for occupational activity because of his dysthymic disorder, PTSD, and substance abuse problems. An October 2010 Mental Residual Functional Capacity Assessment reflects that the Veteran was moderately limited in his ability to understand and remember detailed instructions as he had difficulty remembering and needed repetition and reminders, carry out detailed instructions, maintain attention and concentration for extended periods of time, interact appropriately with the general public, maintain socially appropriate behavior, adhere to basic standards of neatness and cleanliness, and respond to changes in the work setting. VA treatment records from August 2011 reflect that the Veteran was neatly groomed; alert; and oriented to person, place, and time. He had spontaneous speech with normal rate and rhythm, broad affect with calm and euthymic mood, and no suicidal or homicidal ideations. His GAF score in July 2011 was 65. A February 10, 2016, VA examination report reflects diagnoses of PTSD, unspecified depressive disorder, and opiate dependence in full remission. The examiner stated that the symptoms of PTSD and depression overlapped and were likely related to one another. 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 stated that it was not possible to differentiate what portion of the occupational and social impairment was attributable to each diagnosis and the symptoms overlapped and were likely related to one another. The Veteran preferred to be alone, remained close to one daughter and her mother, was not close to his other daughter although he remained close to her mother, had minimal contact with a younger sister, had a lot of acquaintances but no close friends, enjoyed reading, and joined a gym. The Veteran was compliant with his medications until about three weeks ago, and that he noted his anger stated flaring up at work since then. His symptoms included anxiety; chronic sleep disturbance where he slept only two to three hours per night; depression; avoidance of people and crowds; flashbacks; emotional detachment; anger; irritability; social isolation or withdrawal; hypervigilance, such as walking the perimeter of his house although he now had cameras; and decreased concentration or memory. On examination, he appeared anxious, agitated, and euthymic. He was neatly dressed and oriented to time, person, and place. He had normal speech; linear, logical, and goal-directed thought content and process; no hallucinations or delusions; adequate judgment and insight; and no suicidal or homicidal ideation. An October 2016 VA examiner found that the Veteran had a prior diagnosis of PTSD but that he currently did not endorse the full criteria for PTSD. Rather a diagnosis of other specified trauma and stressor disorder was made, which resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported a good relationship with one daughter and a poor one with the other, a fair relationship with his sister, having a lot of acquaintances but no close friends, enjoying reading and fishing, and occasionally going to the gym. His symptoms included anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, and impaired impulse control. The Veteran was appropriately groomed and alert. He had normal speech, no delusions, goal-directed and linear thought process, euthymic mood, affect that was congruent with ideation and appropriate to the situation, no suicidal or homicidal ideation, grossly intact memory, and adequate insight and judgment. VA treatment records from January 2017 reflects that the Veteran was currently not working after he was fired from his previous job for making a threat towards a client. In February 2017, the Veteran was well-groomed, calm, and cooperative. He was alert and oriented to person, place, time, and situation. He had spontaneous, logical, and coherent speech; goal-directed thought processes; no suicidal or homicidal ideation; intact memory and concentration; and adequate insight and judgment. In June 2017, he reported that he continued to have intermittent nightmares and enactment behaviors of his dream, although he was unable to recall most of the dream contents upon waking up. According to his girlfriend, he screamed and fought in his sleep and at times hit her. He enjoyed spending time with her and was riding his motorcycle a lot now that he was no longer working. He felt less stressed and denied suicidal and homicidal ideations. He enjoyed some fishing and going to the gym. In August 2017, the Veteran was groomed appropriately and maintained good behavioral control. He had spontaneous and coherent speech with rate, rhythm, and volume within normal limits; organized and goal-directed thought process; no evidence of auditory or visual hallucinations, delusional beliefs, or paranoid ideation; intact judgment and insight; mood that was depressed at times; and affect that was congruent with the topics of discussion. His cognitive functioning was impacted by trauma-related thoughts and emotions but otherwise intact. He denied current suicidal or homicidal ideation. He had diagnoses of PTSD, unspecified depressive disorder in remission, and opioid use disorder in sustained remission. After resolving any reasonable doubt in favor of the Veteran, the Board finds that, prior to February 11, 2016, an initial rating of 50 percent, but no higher, is warranted for the Veteran’s service-connected PTSD. Beginning in March 2009, there is evidence of suicidal ideation, feelings of numbness, paranoia, some homicidal thoughts. The Veteran often patrolled his house with a pistol, ducked when he saw or heard helicopters or loud noises, kept a knife and a bat next to his bed, threatened a person because of the way he talked to the Veteran, threatened to “crack the heads” of his co-workers, and was socially isolated. Additionally, he had poor insight and judgment at times, some impairment of memory, and restricted affect. In fact, an April 2009 addendum reflects that a VA staff psychiatrist opined that the Veteran had a very serious PTSD disability that had been covered up by the use of opiates over the years, although a September 2010 SSA evaluation report reflects that the Veteran had moderate functional impairment for occupational activity. Furthermore, SSA records reflect that the Veteran did not wash his clothes, shave, go outside, or bathe often; had no hobbies or interests; had blunted effect; had moderate functional impairment for occupational activity. Additionally, he was moderately limited in his ability to understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods of time, interact appropriately with the general public, maintain socially appropriate behavior, adhere to basic standards of neatness and cleanliness, and respond to changes in the work setting. As such, the Board assigns a 50 percent rating prior to February 11, 2016, based on the frequency, severity, and duration of the Veteran’s symptoms. The preponderance of the evidence for this first period, however, is against a finding of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood to warrant an even higher rating. The Board acknowledges that the evidence indicates that the Veteran had some obsessional rituals due to his paranoia, such as patrolling the house and sleeping with a knife and a bat by his bed. However, there is no indication that such rituals interfered with his routine activities. Additionally, although there is early evidence of suicidal ideation, the Veteran subsequently denied suicidal and homicidal thoughts. Moreover, although there is evidence of flare-ups of anger, there is no indication of periods of violence. Furthermore, while the Veteran was noted to be disheveled in March 2010, and SSA records reflected difficulty with grooming and hygiene, the weight of the evidence indicates that the Veteran typically had little problems with his personal appearance and hygiene. He also had good relationships with his daughters, the mothers of both of his daughters, and his girlfriend. As such, there is no indication that he was unable to establish or maintain effective relationships. Moreover, the evidence does not indicate that the Veteran had speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting his ability to function independently, appropriately, and effective; and spatial disorientation. As of February 11, 2016, a rating in excess of 70 percent is not warranted as there is no indication of total occupational and social impairment. Although the Veteran preferred to be alone, he was close to one daughter and the mothers of his two daughters, had a lot of acquaintances, had a fair relationship with his sister, and enjoyed spending time with his girlfriend. As such, there is no indication that he has total social impairment. Additionally, 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. Rather he consistently was oriented to person, place, time, and situation; and denied hallucinations, paranoia, and suicidal and homicidal ideations. Additionally, he had spontaneous, logical, and coherent speech; linear, logical, and goal-directed thought process and content; and grossly intact memory. As such, the already assigned 70 percent disability rating as of February 11, 2016, is appropriate. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee