Citation Nr: 18142681 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-40 862 DATE: October 17, 2018 ORDER Entitlement to a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT During the appeal period, the Veteran’s PTSD has manifested as no worse than occupational and social impairment with deficiencies in most areas due to symptoms such as: obsessional rituals interfering with routine activities; passive suicidal ideation without plan, intent, or attempts; impaired impulse control (including fits of crying, and unprovoked irritability with angry outbursts, without evidence of verbal or physical altercations); mood disturbances such as anxiety and depression; distrust and avoidance of others; nightmares and difficulty sleeping; difficulty in establishing and maintaining effective work and social relationships; and mild memory loss, such as forgetting where he parked his car. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran’s claim for an increase to his 50 percent disability rating for service-connected PTSD. The Veteran testified before the undersigned Veterans Law Judge during an October 2017 travel board hearing. A transcript of that proceeding is associated with the claims file. VA received evidence subsequent to the final consideration of the claim by the RO, but the Veteran waived RO consideration of that evidence in correspondence received in October 2018. The Board may consider the appeal. See 38 C.F.R. § 20.1304(c). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the September 2015 statement of the case and are not repeated here in full. Duty to Assist As an initial matter, the Board acknowledges the Veteran’s dissatisfaction with his October 2014 VA examination, which he claims was cursory in nature and duration. See October 2017 hearing transcript; October 2018 letter. A presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examinations). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. Here, the Board finds the presumption of regularity has not been rebutted. The October 2014 VA examination report clearly indicates that the examiner performed an in-person examination, reviewed the Veteran’s claims file, and addressed the inquiry relevant to determining the severity of his PTSD. The Board acknowledges the Veteran considers the examination to have been brief, but finds the examination findings are adequate and sufficient upon which to decide the claim. The examiner completed all portions of the report necessary to rate the Veteran’s disability. VA’s duty to provide an adequate examination has been satisfied. Moreover, the Veteran should understand a decision is not based solely on this examination report, but the Board considers all the evidence. Therefore, his treatment records and the findings therein, as well as his testimony, supplement the VA examination report. The Board also acknowledges the Veteran’s September 2017 written request for a copy of his 2014 VA examination and his October 2018 written statement that he had not received it. However, the record shows VA mailed a copy of the examination to the Veteran’s latest address of record in August 2018, and it was not returned as undeliverable. It was mailed to the same address as shown on the October 2018 statement from the Veteran. His statement alone is insufficient to rebut the presumption that VA properly discharged its official duties in mailing the requested document to the Veteran at his address of record. See Crain v. Principi, 17 Vet. App. 182, 186-87 (2003). VA’s duty to provide a copy of the requested document has been satisfied. 38 C.F.R. § 1.526.   Neither the Veteran nor either of his former attorney representatives raised any other issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist or Bryant hearing deficiency argument). Thus, the Board need not discuss any potential issues in this regard. Finally, neither the Veteran nor his representative has raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Increased Rating The Veteran currently has a 50 percent rating for his PTSD under DC 9411, 38 C.F.R. § 4.130. He seeks a higher rating. Disability evaluations are determined by comparing the Veteran’s symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. For acquired psychiatric disabilities, a 50 percent disability rating is assigned 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. See 38 C.F.R. § 4.130, DC 9411. A 70 percent disability rating is assigned 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; intermittently illogical, obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, one’s own occupation, or one’s own name. Id. The symptoms enumerated in DC 9411 are not an exhaustive list, and VA must holistically consider all evidence in the record that bears on the Veteran’s occupational and social impairment. However, evaluation of the Veteran’s condition is “symptom driven” and are the “primary focus when deciding entitlement to a given disability rating.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). As such, a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Id. at 117. Moreover, the evidence must show those symptoms have caused the degree of occupational and social impairment associated with the requested disability rating. See id.; see 38 C.F.R. § 4.130, DC 9411. After a full review of the record, the Board finds the severity and nature of the Veteran’s PTSD symptoms and their effects on his occupational and social functioning during the appeal period were consistent with and most closely approximated the 70 percent disability rating criteria. In October 2014, the Veteran underwent a VA examination. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood, with irritable affect, and normal or negative findings regarding orientation, speech, suicidal and homicidal ideation, thought process, and thought content. The examiner found the Veteran’s level of occupational and social impairment was best summarized as 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. In a December 2014 written statement, the Veteran reported symptoms of depression, anger, rage, isolation, nightmares, and fearfulness around people. In another December 2014 written statement, the Veteran asserted he has “experienced social impairment and reduced opportunity for gainful employment” because he does not like to work around people, and has always chosen employment where he is alone. He further asserted he is unable to establish and maintain meaningful relationships. He further stated he often thinks of suicide, but does not have a plan or means. He claimed symptoms of depression, panic attacks, short term memory impairment, with lack of motivation and impaired judgment. In a December 2014 statement, a Licensed Marriage and Family Therapist the Veteran was seeing at a Vet Center reported he had diagnosed the Veteran with PTSD (chronic), depression, anger, anxiety, and isolation. In a January 2015 statement, the same therapist stated he was treating the Veteran for PTSD (chronic), depression, and anxiety. In a November 2015 statement, the same therapist said he and the Veteran “often discussed the topic of not being alive because life was so painful and death at times appeared to be a way out of the pain,” and stated the Veteran experiences episodes of depression affecting his ability to focus and interact effectively with people, experiences “unprovoked irritability,” and makes efforts socially and occupationally to be isolated from others, stating he “has almost no close friends with the exception of his spouse. The therapist also stated the Veteran often forgets where he has parked his car. In two November 2015 lay statements, the Veteran’s wife reported the Veteran exhibited the following symptoms during the appeal period: that he was nervous in social situations and avoids socializing, that his mental state was “poor,” that he feels sad, angry, enraged, and depressed, has occasional fits of crying and rage, has nightmares and trouble sleeping, and conducts nightly “perimeter checks” to check all doors, windows, and outside lighting. At the October 2017 Board hearing, the Veteran testified to symptoms of depression, social and occupational isolation (including spending most of his time in his garage, avoiding going out with friends, and working nights or graveyard shifts), hypervigilance and obsessional rituals (relating to checking doors and windows, and making sure nobody is outside the house), anger, bad dreams, and occasional passive suicidal ideation. The undersigned finds his testimony credible based on his demeanor. The Veteran’s VA outpatient psychiatric and other treatment records for the appeal period generally show symptoms consistent with those reported by the Veteran, his therapist, and his wife. See, e.g., April 2015 VA treatment record (noting reports of nightmares, hypervigilance, numb/detached feelings, and feelings of hopelessness, but no thoughts about taking life or any suicide attempts); February 2016 VA treatment record (noting positive depression screen, with the Veteran having trouble with concentration, but negative for illogical, obscure, or irrelevant speech, and noting the Veteran reported frequent thoughts he would be better off dead or hurting himself); August 2016 VA treatment records (Veteran reported being angry, depressed but not suicidal, experiencing flashbacks, crying, bad mood swings, sleep impairment, forgetfulness and confusion); August 2017 VA treatment record (reported worsening mood and anxiety, with more sleep disturbances, irritability, hypervigilance, intrusive thoughts about past combat experience and nightmares, with intermittent passive suicidal ideation without plan or intent); June 2018 VA treatment record (reported symptoms of hypervigilance, avoidance of public places, anxiety/panic attacks, and poor sleep). The Veteran’s private treatment records are also generally consistent with the symptoms reported by the Veteran, his therapist, and his wife. See, e.g., December 2015 private treatment record (noting depression, insomnia, and isolation, which was affecting his marriage); January 2016 private treatment records (Veteran reported having “on/off thoughts” of suicidal ideation, high levels of fear, anxiety, depression, and insomnia, and went to an emergency department and requested a voluntary hold (which was overnight) due to suicidal thoughts, confusion, sadness, fearfulness, and depression). Summarizing the foregoing, the Veteran has reported and been observed to have the following PTSD symptoms during the appeal period that, when viewed together with his other symptoms and their effects on his occupational and social functioning, are consistent with and most closely approximate the 70 percent disability rating criteria: • obsessional rituals interfering with routine activities (including hypervigilant ritual of nightly checks of doors, windows, and outside lighting before going to bed); • passive suicidal ideation without plan, intent, or attempts; and • impaired impulse control (including fits of crying, and unprovoked irritability with angry outbursts, without evidence of verbal or physical altercations). However, the evidence in the record from throughout the appeal period shows the absence of any of the enumerated symptomology for a 100 percent rating, or any other symptoms of similar severity, frequency, and duration resulting in “total occupational and social impairment” any time during the appeal period. With respect to the symptoms relevant to a 100 percent rating, the 2014 VA examination and Veteran’s VA and private treatment records showed no gross impairment in the Veteran’s thought processes or communication, no delusions or hallucinations, no persistent danger of hurting himself or others, no inability to perform activities of daily living (including maintenance of minimal personal hygiene), no disorientation to time or place, and no memory loss for names of close relatives, one’s own occupation, or one’s own name. See, e.g., October 2014 VA examination (thought process linear and goal directed); September 2015 private treatment record (good grooming and hygiene, thought content intact, no perceptual disturbances); January 2016 private treatment records (healthy appearance, normal behavior, judgment, insight, and thought content normal, no hallucinations); February 2016 VA treatment record (negative for illogical, obscure, or irrelevant speech); May 2016 private treatment record (oriented to person, place and time, with no signs of aberrant behavior); August 2016 VA treatment records (denied homicidal ideation, aggressiveness/violence, and hallucinations; noted to have appropriate dress, adequate grooming, logical and goal-directed thought, alert and oriented); March 2018 VA treatment record (no homicidal ideation, evidence of paranoia or delusional thinking, or hallucinations). Moreover, the 100 percent disability rating requires total social impairment, which is simply not shown here. The Veteran has been married for approximately 16 years and is a caregiver for his wife and children. See October 2014 VA examination (noting Veteran married for 12 years); January 2016 private treatment record (noting “Both patient and wife report their relationship is healthy.”); September 2018 VA treatment record (noting Veteran takes care of wife due to medical issues, and takes care of kids, to include cooking and doing chores every day). He also has three sisters with whom he maintains regular contact. See January 2016 private treatment record. The 70 percent rating criteria herein contemplates some degree of social impairment. He is not, however, “totally” socially impaired as required by the 100 percent rating. Furthermore, the 100 percent disability rating also requires total occupational impairment, which is unsupported by the weight of the evidence. The Board acknowledges the Veteran’s December 2014 statement regarding his reduced employment opportunities due to his dislike for working around people and choosing employment where he is alone, and although the Board does not doubt the Veteran’s PTSD symptoms contributed to some degree of occupational impairment, the Veteran was not “totally” occupationally impaired at any time during the appeal period. Indeed, he testified at the October 2017 Board hearing that his decision to retire from his job as a custodian (in the mid-1990’s, long before the appeal period) was because his former wife had cancer and he had severe arthritis. The Veteran has not claimed, nor is there evidence in the record, that shows he has been wholly unable to work during the appeal period due to his PTSD. In short, the Veteran showed none of the enumerated symptomology for a 100 percent rating, nor any other symptoms of similar severity, frequency, and duration that demonstrate total occupational and social impairment, at any time during the appeal period. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel