Citation Nr: 18142554 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-02 222 DATE: October 17, 2018 ORDER Entitlement to an initial rating in excess of 30 percent prior to November 6, 2014, and in excess of 70 percent from that date, for an acquired psychiatric disorder diagnosed as post-traumatic stress disorder (PTSD), for purposes of accrued benefits, is denied. FINDINGS OF FACT 1. The Veteran died in January 2015. 2. During the period prior to November 6, 2012, the Veteran’s PTSD was characterized by occupational and social impairment with occasional decrease in work efficiency; occupational and social impairment with reduced reliability and productivity has not been shown. 3. During the period from November 6, 2012, the Veteran’s PTSD was characterized by occupational and social impairment, with deficiencies in most areas; total occupational and social impairment has not been shown. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 30 percent prior to November 6, 2014, and in excess of 70 percent from that date, for an acquired psychiatric disorder diagnosed as post-traumatic stress disorder (PTSD) have not been satisfied. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1, 1965 to February 4, 1974. The Veteran passed away on January 21, 2015. The appellant filed an application for dependency and indemnity compensation (DIC) on January 27, 2015, which constituted an application for substitution; VA sent her rating decisions dated February 2015, September 2018, and other documents indicating acceptance of her claim to substitution. See 38 C.F.R. § 3.1010. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD) from September 4, 2012 to prior to November 6, 2014 The Veteran is presently service connected for PTSD. His disorder is rated as 30 percent disabling for the period prior to November 6, 2014, and 70 percent for the period from that date. As this grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran’s PTSD is rated under 38 C.F.R. 4.130, Diagnostic Code 9411 (2017), which provides the general rating formula for mental disorders. Under the applicable diagnostic criteria, a 30 percent rating is granted 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 9434 (2017). A 50 percent rating is assigned 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 and maintaining effective work and social relationships. Id. 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 ideations; 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 the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. Id. In order to warrant a 100 percent rating, the evidence must show 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. 38 C.F.R. § 4.130, Diagnostic Code 9434, General Rating Formula for Mental Disorders (2017). Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 examination. See 38 C.F.R. § 4.126 (a) (2017). Further, when evaluating the level of disability arising 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) (2017). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Prior to November 6, 2014 Based on the evidence of record, a rating in excess of 30 percent is not warranted for the period prior to November 6, 2014. Specifically, during this period, the record indicates that the Veteran’s symptoms did not rise to the level of occupational and social impairment with reduced reliability and efficiency. For example, throughout this period, the Veteran maintained adequate dress, grooming, and hygiene. A primary care outpatient note dated October 2012 reflects that the Veteran was alert and oriented, as well as cooperative, pleasant, and conversant, with appropriate affect. January 2014 and September 2014 mental status examination shows similar presentation. A November 2013 note reported that the Veteran was well dressed with clear thought content and intact orientation and concentration. Finally, the Veteran’s January 2013 VA examiner noted that he self-medicated with alcohol in order to socialize with others and avoid his traumatic memories of Vietnam. While his alcohol use was in remission in January 2013, his October 2013 mental health note stated that he did sometimes drink three to four beers in the evenings. However, it did not cause impairment to the level of reduced reliability and productivity. During this period, the Veteran demonstrated frequent disturbances of mood and motivation, most often manifesting as depression. However, these disturbances do not merit a rating in excess of 30 percent. A PTSD screen in October 2012 showed that the Veteran was watchful and easily startled. Similarly, the Veteran’s January 2013 VA examiner noted a lack of motivation, and that “nothing had pleased [the Veteran] for a long time.” Further, the Veteran avoided anything reminding him of Vietnam, for example hunting. Thoughts of friends and comrades that died in Vietnam left him in a depressed state. Similar thoughts, as well as feeling distant from other people and emotionally numb, were expressed in a mental health note dated November 2013. The Veteran also reported to the author of that note some difficulties with concentrating and on books and even television programs. His January 2013 VA examiner mentioned symptoms of anxiety and depression that are commensurate with his current 30 percent rating. While a mental health note dated October 2013 endorsed worsening panic attacks, the record does not reflect that the Veteran had medically diagnosed panic attacks, or that the symptoms occurred more than once a week. Indeed, a July 2014 note from a resident physician stated that the Veteran had not been acutely experiencing panic attacks. Similarly, the Veteran, in a November 2013 mental health diagnostic study, expressed little interest or pleasure in doing activities nearly every day, and feeling down, depressed or hopeless more than half the days. He also expressed feeling bad about himself and feeling that he was a failure nearly every day. Nonetheless, at a June 2014 evaluation, the Veteran still presented with a casual, well-groomed appearance and open and engaged behavior. While his mood was depressed, he had an affect that was congruent with his mood. Further, he had a logical, sequential, and goal-directed thought process. In a November 2013 mental health note, the Veteran mentioned getting acutely angry with people, and feeling that “everybody is in [his] way.” Moreover, the Veteran as well as his wife reported constant anger and verbal mistreatment towards her and their family. This behavior was mitigated somewhat by medication, as documented in a January 2014 mental health note. He also endorsed ritualistic behavior such as repeating license plate numbers and the compulsion to straighten crooked pictures. In a January 2014 note, the Veteran endorsed an inability to experience positive emotions. Notwithstanding these symptoms, the Veteran showed motivation to improve, by, for example, attending a PTSD symptoms management class suggested by his mental health counselor in January 2014. The Veteran expressed the motivation to improve his symptoms for the sake of himself and his family, and took part in couples counseling. Finally, the Veteran’s January 2013 VA examination states that the Veteran could manage his financial affairs. Accordingly, during the appeal period, the Veteran was able to function independently. While it is true that the Veteran exhibited sleep impairment throughout this period, such symptoms are also contemplated by his current rating under DC 9411. Specifically, the Veteran endorsed chronic sleep impairment to his January 2013 VA examiner, and some combat related nightmares in a mental health note dated November 2013. While his sleep was reported to be adequate early in 2014, as stated in notes dated January 2014, the Veteran endorsed lack of quality and quantity of sleep later that year. For example, an internal medicine note dated July 2014 shows that the Veteran was only sleeping two to three hours per night. Sleep disturbances such as those described above, while unsettling, are not uncommon with psychiatric disorders, and any resulting occupational or social impairment is included in the Veteran’s current rating. Similarly, the Veteran’s memory and concentration were generally intact and normal for this period, as reflected in a November 2013 mental status exam. Other clinical examinations of the Veteran yielded no significant memory problems. As discussed above, the Veteran’s ability to concentrate was somewhat impaired by his PTSD. To elaborate, the Veteran reported to his examiner in January 2014 that he could not focus on anything for more than a few minutes. However, any decreased efficiency caused by any lapses in concentration is contemplated in the Veteran’s current rating for this period. As such, there is not impairment sufficient for an award in excess of 30 percent. During this period, the Veteran’s judgment was not acutely impaired as a result of his symptoms. Specifically, a November 2013 note indicated that his judgment was impaired as to his interpersonal relationships, and specifically with anger towards his wife and family. Aside from this, however, the evidence of record – for example a mental status note dated January 2014 – reflects fair judgment. While the Veteran admitted to suicidal thoughts in November 2013, he denied suicidal ideations or plans at all times during this period. Finally, despite a feeling that people were talking about him expressed in November 2013, no delusions or hallucinations were shown or reported for this period. Thus, the Veteran’s disability picture does not merit an increased rating. Based on the symptoms clinically observed, the Veteran has experienced some of the relevant symptoms that might support a rating in excess of 30 percent. For example, he has exhibited significant irritability and depression, occasional ritualistic behavior, and intermittent thoughts of suicide (again, without ideations or plans). However, in the Board’s view, the criteria for the next-higher 50 percent rating depict a level of impairment, when viewed as a whole, that is more severe than the symptoms displayed by the Veteran. Indeed, many of these objective symptoms, to include difficulty understanding complex commands and spatial disorientation, have not been demonstrated. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there were other indications of total occupational and social impairment, such as grossly inappropriate behavior and memory loss, to include social and occupational inadaptability. In this regard, it is clear that the Veteran’s disorder impacted his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 30 percent is warranted. The Veteran’s January 2013 examiner noted that he had been married for forty-two years. They had three sons, the youngest of whom suffers from schizophrenia and lived with the Veteran and his wife. The Veteran had “severely impaired relationships,” stating that he was close to nobody except his wife, and that she was the only person whom he wanted to “truly” know him. Despite incidents of verbal abuse, the Veteran reported that he and his wife share many hobbies and pastimes, including riding motorcycles. Similarly, the November 2013 mental health note details how the Veteran had difficulty being in public, due to how he perceives the attitude of the public towards him. In fact, he expressed frequently needing to leave the grocery store because of a feeling that people inside were going to get him. Moreover, the Veteran also endorsed an inability to experience loving feelings for those close to him. While the Veteran’s struggles with his family and the public was unquestionably related to his PTSD, the Board determines that his social impairment is contemplated by the 30 percent rating for this period granted in this decision. Given this evidence, the Board determines that the Veteran’s psychiatric symptoms most nearly approximated the symptoms listed for a 30 percent rating. Specifically, his psychiatric disability was primarily manifested by disturbances of mood and motivation, impairment of judgment, and disturbances of mood. As the frequency, duration and severity of the Veteran’s psychiatric symptoms demonstrated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks for the period prior to November 6, 2014, a 30 percent evaluation, but no more, is warranted for the Veteran’s PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). From November 6, 2014 In the period after November 6, 2014, the Veteran’s social and occupational functioning was not affected enough to warrant a rating in excess of 70 percent. Specifically, the Veteran did not demonstrate total occupational and social impairment. The Veteran’s November 2014 Compensation and Pension examination report shows a noticeable difference in the Veteran’s condition – specifically his mood and his personal interactions. The Veteran’s appearance, grooming, and eye contact were all adequate. The Veteran was oriented, and spoke at a normal volume, rate, and rhythm, without abnormal spontaneity. The examiner noted that the Veteran, having previously been sober, had begun to drink again. He did not stop until six weeks prior, when the Veteran’s wife had insisted that he do so. Increased panic attacks and mood disturbances were noted during the period on appeal, as were chronic sleep impairment, mild memory loss, and fair judgment. However, the Veteran was found capable of managing his financial affairs, with no demonstrated impairment in his ability to perform activities of daily life. The Veteran’s concentration and memory were grossly within normal limits, and suicidal, assaultive, homicidal ideation were not found. Based on this symptomatology, the Veteran’s rating was increased to 70 percent as of the date of this examination. Subsequently, a social work note dated January 2015 more specifically details a worsened psychiatric disability picture. In this note, the Veteran’s wife described him as weak, incoherent, and restless (especially at night.) Further, she reported that he wandered frequently and needed guidance and direction, despite being combative with family members and refusing his pills. The Veteran’s wife mentioned that he had not eaten in several days. Despite these difficulties, the Veteran could complete his ADLs with the assistance of a bath aide, and could communicate with his examiner; he had not exhibited “gross impairment” in communication, or grossly inappropriate behavior. See 38. CF.R. 4.130, DC 9411. Moreover, severe memory problems, delusions, and hallucinations were not reflected in the record for this period. The Veteran’s symptoms are addressed by his 70 percent rating for this period. From December 6, 2014, the Veteran had still largely enjoyed his relationship with his wife, despite distance from his children. The Veteran explained that he had been this way “his entire life,” indicating that his social isolation may not entirely be due to his PTSD. The Veteran had few people in his life, and admitted to his December 2014 C&P examiner that he “does not do anything.” Consequently, the Veteran is in receipt of a TDIU rating granted in October 2018. Despite these symptoms, the Veteran did not exhibit total impairment, per DC 9411. As such, his symptoms do not merit a rating in excess of 70 percent. In considering the appropriate disability rating, the Board has also considered the Veteran’s statement in his VA Form 9 dated January 2015, that his PTSD was worse than the current rating reflects. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that the Veteran’s PTSD ratings for each stage on appeal are warranted. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, while a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, no relevant symptoms have been excluded in the Board’s analysis. See Mauerhan, 16 Vet. App. at 444. As such, the Veteran’s symptoms were not so unusual as to lie outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture included exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Lastly, while the Board notes the Veteran’s retirement at the age of 62, due to layoffs and some possibly associated PTSD symptoms, the Veteran is in receipt of a rating of total disability based on individual unemployability.   For the foregoing reasons, a rating in excess of 30 percent prior to November 6, 2014, and a rating in excess of 70 percent from that date, is not warranted. As such, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel