Citation Nr: 18143584 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-14 688A DATE: 1. Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) with depressive disorder not otherwise specified (NOS), currently rated at 70 percent disabling. 2. Entitlement to an increased disability rating for coronary artery disease, currently rated at 10 percent disabling. October 23, 2018 ORDER Entitlement to a disability rating in excess of 70 percent for PTSD with depressive disorder, NOS, is denied. REMANDED Entitlement to an increased disability rating for coronary artery disease, currently rated at 10 percent disabling, is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s PTSD with depressive disorder, NOS, was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, and symptoms of avoidance, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintained effective work and social relationships, difficulty in adapting to stressful circumstances and suicidal ideation. Total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name has not been shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD with depressive disorder, NOS, have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1966 to May 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Entitlement to a total disability rating based on individual unemployability was granted in an October 2017 rating decision, effective February 12, 2012. As such, this matter is no longer before the Board. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). As to the claim for an increased disability rating for PTSD with depressive disorder, NOS, the Veteran in this case has not referred to any deficiencies in the duty to notify. The Veteran’s counsel alleged the Veteran was afforded inadequate VA examinations. Neither the Veteran nor his counsel specified which examination was believed to be inadequate or in what they believe either of his examinations to inadequate. As such, there is no specific contention for the Board to address. Therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to an increased disability rating for PTSD with depressive disorder NOS, currently rated at 70 percent disabling. The Veteran contends that he is entitled to a disability rating in excess of 70 percent for his service-connected PTSD with depressive disorder. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See, Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. 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. Id. The Veteran’s PTSD is rated under Diagnostic Code (DC) 9411. 38 C.F.R. § 4.130. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 30 percent rating is assigned 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). 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is contemplated 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is contemplated for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See, Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-117. The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 118. The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Veteran was afforded a VA PTSD examination in September 2012. Diagnoses of PTSD and depressive disorder, not otherwise specified (NOS), were noted, the symptoms of which were not possible to differentiate. Symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, inability to establish and maintain effective relationships and suicidal ideation were noted. The Veteran was deemed capable of managing his financial affairs. Furthermore, the Veteran reported hypervigilance and irritability. Occupational and social impairment with deficiencies in most areas was noted. In a May 2013 rating decision, service connection for PTSD was granted at 70 percent disabling, effective February 17, 2012. The Veteran was afforded VA PTSD examination in May 2013. Diagnoses of PTSD, alcohol dependence and depressive disorder NOS. It was noted that the symptoms of PTSD and depressive disorder are intertwined and cannot be separated. It was further noted that the alcohol dependence is in remission. 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, were noted. Noted symptoms were depressed mood, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances and suicidal ideation. In a December 2013 rating decision, the RO declined to grant a higher disability rating for PTSD with depressive disorder. The Veteran was afforded a VA PTSD examination in February 2014. A diagnosis of PTSD was noted. Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood was noted. Noted symptoms were depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintained effective work and social relationships, difficulty in adapting to stressful circumstances and suicidal ideation. It was noted that the Veteran’s symptoms have worsened since his last examination “and are very severe.” A March 2014 VA treatment record notes diagnoses of PTSD and depressive disorder NOS. Noted symptoms were depressed mood, loss of interest, fatigue, lethargy, agitation, recurrent thoughts of death, bad dreams, flashbacks and avoidance. The Veteran endorsed prior suicidal behavior as “isolated” and “especially when [he] was drinking”, but none since. The Veteran reported being sober for two -and-one-half years. The Veteran’s current suicide risk was noted as being low. Considering the totality of the evidence, the Board finds that throughout the relevant period on appeal, the Veteran's disability picture more nearly approximates that contemplated by the 70 percent rating. See 38 C.F.R. § 4.7. Throughout that period, the Veteran’s PTSD was characterized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, and symptoms of avoidance, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintained effective work and social relationships, difficulty in adapting to stressful circumstances and suicidal ideation. The Board finds that at no time during the period on appeal does the evidence indicate that the Veteran’s symptoms resulted in total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As such, the Board finds that the weight of the evidence demonstrates that the Veteran’s PTSD with depressive disorder, NOS, does not meet any of the criteria for a rating higher than 70 percent and that his symptoms are substantially less than those reflective of a 100 percent rating. Consequently, the Veteran does not more nearly meet or approximate the criteria for a 100 percent rating. See 38 C.F. R. § 4.7. Neither the Veteran nor his/her 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, 69-70 (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). REASONS FOR REMAND Entitlement to an increased disability rating for coronary artery disease, currently rated at 10 percent disabling, is remanded. In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the United States Court of Appeals for Veterans Claims found that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. The Veteran was afforded a VA ischemic heart disease examination in May 2013. Ischemic heart disease was noted. Left ventricular ejection fraction was measured at 65 percent. The Veteran denied experiencing dyspnea, fatigue, angina, dizziness or syncope. However, the Board notes that no diagnostic exercise test was performed, nor was a METs estimate provided. As a result, the Board is without adequate information to decide the issue of entitlement to an increased rating for coronary artery disease. As such, a remand for a new VA examination is required. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2014 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected coronary artery disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to coronary artery disease alone and discuss the effect of the Veteran’s coronary artery disease on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If medically feasible, METs testing should be conducted. If METs testing cannot be conducted, the examiner must explain why pursuant to 38 C.F.R. § 4.100 and provide a METs estimate if appropriate. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel