Citation Nr: 18143329 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-27 693 DATE: October 18, 2018 ORDER An increased rating in excess of 50 percent for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s psychiatric symptoms more closely approximate an occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an increased rating in excess of 50 percent for an acquired psychiatric disability, to include PTSD have not been met. 38 U.S.C § 1155 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1993 to November 1999; and from February 2000 to July 2004. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This rating decision granted an increased rating claim for a psychiatric disability, which was previously rated as a conversion disorder, thereby increasing the psychiatric disability rating from 10 percent to 30 percent, for PTSD, effective March 2, 2012. Subsequently, in a June 2016 rating decision, the RO increased the rating disability to 50 percent, also effective March 2, 2012. However, since this increase is not representative of a total grant of the benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). During the pendency of this appeal, the Veteran, through his representative, indicated that he was submitting a notice of disagreement (NOD) and intended to appeal all of the issues contained in an October 17, 2016 rating decision, thereby requesting a review by a decision review officer. See August 2017 Correspondence/NOD. In this correspondence, a completed NOD form was attached, in which the Veteran specified that he was appealing the effective date of an award and the evaluation of the PTSD disability. However, the Board notes that there is no October 17, 2016 rating decision of record, and furthermore, the issue of an increased rating for an acquired psychiatric disability had already been certified for appeal in July 2016. See July 2014 VA Form 8 Certification of Appeal. At that point, the Veteran had not appealed the issue of an earlier effective date of his increased rating award for PTSD. Thus, as this issue was not certified for an appeal, the Board has no jurisdiction to review it. Increased Rating for an Acquired Psychiatric Disability Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (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 (2007). The criteria for evaluating an acquired psychiatric disability, including PTSD, are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, DC 9434 (2017). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442 – 44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a) (2017). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b) (2017). The Veteran has been rated at 50 percent disabling for an acquired psychiatric disability, including PTSD, effective March 2, 2012. He asserts that the severity of the Veteran’s service-connected PTSD clearly exceeds the criteria for the 50 percent rating. See February 2017 Appellate Brief. In an August 2012 NOD, he reported, among several other symptoms and manifestations, that since his return from Iraq, he has had problems with memory loss; headaches; flashbacks; nightmares; insomnia; drastic mood swings; aggressiveness; anxiety; over-alertness; always thinking the worst; worthlessness; inability to learn; inability to concentrate; communicating; frustration with people who are unable to understand what he is trying to explain; marital problems; and his children being affected by his condition. In support of his increased rating claim, the Veteran has also submitted lay statements form his spouse, A.M.P, who provided a lengthy, detailed account of the Veteran’s PTSD symptoms and the impact it has had on their family. See August 2012 Correspondence. She explained that she met the Veteran prior to his deployment to Iraq and that they married upon his return. She further explained that they have been married for close to nine years (as of August 2012). In pertinent part, she reported that the Veteran was a loving, attentive, genuinely concerned person to her prior to his deployment to Iraq. She then explained that after his deployment to Iraq, she found him to be distant from her, and that as the years have passed, she has seen him get more and more confused, lost, angry and distant. She additionally explained that they live “such desolate and distant lives”; he spends most of his time in the garage in a small corner where he keeps his computer, drawings and a few favorite things, whereas she spends hers living as a single mother. She stated that she is unable to count on the Veteran for anything and that she cooks, cleans, pay the bills, schedules all appointments, transports everyone to all of their appointments, makes all phone calls regarding household matters, makes all decisions for their family and frequently, throughout the day, calls him from work to remind him of his appointments or other important things that he must do that day. She suggested that she does all this because the Veteran does not have the mental capacity to handle any of these things. She further reported that he is unable to complete his degree because of his mental disorder, which prevents him from getting a job that requires responsibility, focus, and the ability to pay attention to detail. She stated that the Veteran feels like there is no future for him, he has nothing to look forward to, and that he cannot find anything that makes him feel as though he has a purpose. Additionally, she provided excerpts from a mental health diary that she has kept on the Veteran. Specifically, in lengthy, detailed entries from 8/11/2012 and 8/19/2012, she provided some examples of his psychiatric symptoms, which included and were not limited to, lack of sleep; mood swings (starting the day off as a good day, but then the day would turn sour very quickly, with no warning at all); irritability (becoming grumpy, touchy and angry, and seemingly aggravated by everything); inability to adapt to stressful situations (while the Veteran was on leave from work, A.M.P. noticed that his stress drastically reduced when she saw him making a conscious effort to better communicate with their son, in which he took the time to actually play with and interact with their son); and difficulty with maintaining family relationships (A.M.P. noted that the Veteran was lost, confused, bitter, angry, distant, unloving and detached physically, mentally and emotionally form her, his children and his family). Treatment records reflect that the Veteran complained of, and/or manifested symptoms, such as irritability; concentration problems; hypervigilance; sleep disturbances, including lack of sleep and nightmares; hopelessness; anxiety; avoidance; flashbacks; exaggerated startled response; inability to adapt to stressful situations; and difficulty with establishing and maintaining work and social relationships. See e.g. February 2012 Psychotherapy Progress Note (reflecting that the Veteran remained isolated and was not a part of anything or any group; had increasing difficulty with irritability, concentration, sleep, jumpiness and hypervigilance; and that he additionally reported having anxiety, panic and depression, which was reflective of a moderate-to-serious PTSD compounded by his traumatic brain injury); see also February 2012 Attending Physician’s Statement Form, Completed by Dr. B.K. (reflecting diagnoses of PTSD, non-specified depression (NOS) and traumatic brain injury, with symptoms, including outbursts of anger, exaggerated startled response, concentration difficulties, and extreme difficulties getting along with others; and categorizing the Veteran’s mental/nervous impairment as being “unable to engage in stressful situations and engage in interpersonal relations (marked limited).”); see, too September 2012 Mental Health Note (reflecting that the Veteran had sleep disturbances, including nightmares that he could not remember; panic attacks; inability to go into crowds; anxiety attacks, and angry outbursts; and that the Veteran reported being hypervigilant and feeling like he was trained to live it, even though it bothered him); see, too March 2013 Mental Health Note (reflecting that the Veteran reported that he continued to experience problems and symptoms of combat-related PTSD, and that he described severe impairments in his psychosocial functioning as impairments that have strained his relationship with his wife and resulted in severe difficulty in his ability to work and deal with any occupational situation); see, too April 2016 Psychiatry Note (reflecting that the Veteran reported feeling jumpy and that he had difficulty controlling anger and would blow up from little things). In June 2012, the Veteran underwent a VA examination for PTSD. The VA examination report reflects a diagnosis of PTSD, describing the level of functional impairment as an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The VA examination report also reflects that he reported having a close and loving relationship with his wife; he enjoyed doing a variety of things together with his son; had a couple of good friends, including one in which he saw once every week, and enjoyed undertaking projects together. The VA examiner noted that the symptoms applicable to his diagnosis of PTSD, included anxiety; and chronic sleep impairment. Additionally, the VA examiner remarked that the Veteran reported relatively good psychosocial functioning overall: he was enrolled fulltime in a college program, was working fulltime as a security officer at large, busy manufacturing plant and works part-time as a bouncer at a popular nightclub meeting and checking many dozens of customers each night. Also reported enjoying a variety of social events, such as going to ball games and wedding. In response to this VA examination report, the Veteran asserted that the VA examiner asked straight-forward questions, but did not allow him to provide any explanations. He further asserted that the format of the examination was “yes and no” questions most of the time, and that the VA examiner wrote what he felt like. See August 2012 NOD. In this regard, the Board notes that it undertakes a de novo (complete) review in its evaluation of a claim, and thus, considers all evidence of record, giving probative value only to all pertinent evidence of record. Thus, a summary of all pertinent evidence, collectively and not solely, including and not limited to, this VA examination report, treatment records and medical opinions, shall be afforded probative value. In this regard, the Board has also considered two private opinions that the Veteran has submitted, in support of his claims. In a February 2017 vocational opinion on the Veteran’s unemployability, a vocational consultant, Dr. S.B., noted that the Veteran’s PTSD symptoms, included recurrent distressing dreams, avoidance, chronic sleep impairment, irritability, and anxiety. She further, indicated that the Veteran’s symptoms “cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.” In assessing and providing a medical opinion on the Veteran’s unemployability, her summary of the Veteran’s PTSD symptoms was based on her review of the Veteran’s medical records, evaluations, and examinations, and particularly, a private medical evaluation and opinion from a private psychologist, Dr. H.H-G. In February 2017 opinion, Dr. H.H-G undertook a clinical evaluation of the Veteran, and completed a disabilities and benefits questionnaire (DBQ) to assess the severity of the Veteran’s PTSD. In this February 2017 DBQ, Dr. H.H-G. described the functional impact of the Veteran’s PTSD symptoms as an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. She indicated that the symptoms applicable to the Veteran’s PTSD diagnosis, included depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships. Additionally, she remarked that the Veteran indicated that he can no longer enjoy the simplest of activities; he struggles with remembering basic information; his mood was anxious and nervous, and affect was restricted; and that he reported that he felt anxious and depressed. In an accompanying medical opinion, Dr. H.H-G. reported that the Veteran is socially isolated and withdrawn, but also noted that he prepares the meal, maintains household chores by making a daily list, pacing himself and taking frequent breaks, and attends to his personal hygiene. She further noted that the Veteran has few friends (despite indicating that the Veteran had an inability to establish and maintain effective relationships in the accompanying DBQ, as noted above), and an inability to keep a job. Additionally, she reported that the Veteran suffers from chronic sleep impairment, including insomnia, broken sleep, and nightmares; he described disturbances of motivation and mood, sense of foreshortened future, exaggerated startled response, hypervigilance and near continuous panic or depression affecting his ability to function effectively; and that he reported difficulty with concentrating, irritability; as well as difficulty with establishing and maintaining relationships, difficulty adapting to stressful circumstances, including work and feelings of detachment from others, remarking, “I feel numb.” She also indicated that he reported psychological and physiological reactions to crowds of people and the smell of burnt garbage because of their resemblance to his traumatic military experience. In summary, Dr. H.H-G. opined that the Veteran struggles with depressed mood, hypervigilance, and disturbances of motivation and mood; and that difficulty with maintaining effective relationships also indicates that he struggles with a severe impairment. She suggests that his deterioration in his mental condition continues to present date. However, treatment records have not shown a deterioration in his mental condition, and at the most, are reflective of a 50 percent disability rating for occupational and social impairment with reduced reliability and productivity due to such symptoms. For example, approximately eight months prior to this February 2018 opinion from Dr. H.H-G, the Veteran reported that he was doing well, denied feeling depressed, and denied having any history of denied suicidal attempts in the past, or any suicidal ideation, intent or plan. See April 2016 Psychiatry Note (reflecting that he reported doing well, denied feeling depressed, denied having nightmares for a long time, and reporting that his memory had improved, despite reporting some PTSD symptoms; and denied having a history of suicidal attempts in the past, or any suicidal ideation, intent, or plan); see also June 2016 Psychiatry Note (reflecting that the Veteran reported doing well and denied feeling depressed; his anger was well controlled, with no recent outbursts, despite reporting some PTSD symptoms; and denied having a history of suicidal attempts in the past, or any suicidal ideation, intent, or plan.). Furthermore, additional treatment records do not reflect a deterioration of his psychiatric symptoms. See e.g. August 2012 Attending Physician Statement Form from Dr. B.K. (reflecting that the Veteran’s capabilities, included taking care of personal activities or self-care and some assistance around house/home); see also May 2013 Mental Health Note (despite reflecting some PTSD symptoms that continued to create a moderate-to-serious level of impairment in his psychosocial functioning, also reflecting that the Veteran reported having better than worse days, though life in general remained a constant struggle.); see, too October 2015 Care Management Note (reflecting that the Veteran’s was euphoric; and that he reported that things were going well, he continued to stay at home while his wife worked, and that he was enjoying time with his sons and this role); see, too March 2016 Psychiatry Note (reflecting that the Veteran reported that he was coping with his PTSD symptoms; he reported having a history of combat-related nightmares, but denied having nightmares for a long time, despite flashbacks triggered by certain smell; he denied feeling depressed; and on mental status examination, noting that his mood was said to be “ok” with mood congruent affect; thought process well organized and goal directed; thought content was not delusional; no suicidal or homicidal intent or plan; no perceptual disturbance noted; intellectual functioning was intact; the Veteran was fully oriented to time, place and person; and insight and judgment was good). Treatment records, therefore, suggest that the severity of the Veteran’s mental condition has not deteriorated or improved overtime. These records, which include the Veteran’s reports concerning the severity of his symptoms and his treatment providers assessment of such constitute the most probative evidence on the claim. (Continued on the next page)   (Continued on the next page)   Thus, after an overall review of all the medical evidence of record, the Board finds that there is no probative evidence that the Veteran reported or manifested, symptoms of a greater frequency, severity, or duration to warrant a higher rating than 50 percent. Although the evidence of record reflects a moderate-to-severe level of impairment, as noted above, the evidence does not show that his psychiatric disability has been manifested by such symptoms as suicidal thought, plan, prior attempts; thought disorder, such as delusions, disorganized thinking, hallucinations, or being grossly disorganized; obsessional rituals; neglect of personal hygiene and appearance; near-continuous panic or depression affecting his ability to function independently; or any other manifestations that severely impact his activities of daily living. Rather, the evidence of record suggests that the Veteran is able to undertake activities of daily living, such as for example, undertaking house chores, caring for and spending time with his sons as stay-at-home father, and maintaining his personal hygiene. Additionally, the evidence reflects, as noted above, that the Veteran has a functional, albeit a difficult relationship with his wife and children, and additionally, has a few friends. This is not reflective of an inability to establish or maintain effective work and social relationships, but rather, and example of his difficulty with establishing and maintaining social relationships. Accordingly, the evidence fails to show deficiencies in most areas due to symptoms similar or equivalent in severity to those listed in the rating criteria for a 70 percent rating. See Vazquez-Claudio v. Shinseki, 713 F. 3d 112, 118 (Fed. Cir. 2013) (holding that a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). Therefore, based on the foregoing, a rating in excess of 50 percent for an acquired psychiatric disability, to include PTSD is not warranted and must be denied. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel