Citation Nr: 18146341 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-40 925 DATE: October 31, 2018 ORDER Entitlement to an initial rating greater than 30 percent, for the period prior to November 30, 2015, for post-traumatic stress disorder, is denied. Entitlement to a 50 percent rating, but no higher, for the period beginning November 30, 2015, for post-traumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. Prior to November 30, 2015, the Veteran’s PTSD manifested with symptoms of intrusive memories, nightmares, irritability, anger, hypervigilance, and sleep impairment causing occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Beginning November 30, 2015, the Veteran’s PTSD manifested with symptoms of anxiety, nightmares, irritability, anger, hypervigilance, sleep impairment, suicidal ideation, and disturbances of motivation and mood causing occupational and social impairment with reduced reliability and productivity. 3. The Veteran’s PTSD symptoms did not cause occupational and social impairment with deficiencies in most areas, or total occupational and social impairment at any time during the appeal period. CONCLUSIONS OF LAW 1. For the period prior to November 30, 2015, the criteria for an initial rating greater than 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. For the period beginning November 30, 2015, the criteria for a 50 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1966 to August 1968. Entitlement to an initial rating greater than 30 percent for post-traumatic stress disorder (PTSD). Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). The Veteran’s PTSD has been evaluated as 30 percent disabling for the entire appeal period under Diagnostic Code 9411. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Under the General Rating Formula, a 50 percent rating is assigned when a veteran’s PTSD causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 70 percent evaluation is warranted when 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The maximum schedular rating of 100 percent is warranted when 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, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2017). The rating agency shall assign an evaluation based on all 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 the examination. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b) (2017). Use of the term “such symptoms as” in § 4.130 indicates that the list of symptoms that follows is “non-exhaustive,” meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and because the plain language of the regulation makes clear that “the veteran’s impairment must be ‘due to’ those symptoms,” a veteran “may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. 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 a 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran contends that his current 30 percent evaluation does not reflect the severity of his condition. Factual background shows that the Veteran received a VA examination on December 5, 2014. During the examination, the Veteran reported that he did not have any past psychiatric hospitalizations, mental health treatment, and that he has never been prescribed psychotropic medications. He further reported that he was currently retired having been an airplane mechanic for the majority of his adult life, and that he had no occupational difficulties while working. The Veteran denied a history of suicide attempts, assaultive behavior, drug or alcohol abuse, or any legal/criminal problems, but noted that he experiences daily intrusive memories about his Vietnam experiences, particularly when being around other Veterans coming to the VA, or seeing military movies with war related content. He reported that he does not trust people, his mood is predominantly irritable/angry, and that his irritability has worsened since retirement. Additionally, he reported having difficulty maintaining sleep, being easily angered, and attempting to isolate himself. The examiner noted that the Veteran appeared clean, neatly groomed, with unremarkable psychomotor activity. The Veteran’s affect was normal, mood was mildly anxious, and thought content and thought process was unremarkable. There was no evidence of delusions, hallucinations, obsessive/ritualistic, or suicidal/homicidal ideation, intent, or plan. However, the Veteran exhibited evidence of concentration impairments as the Veteran could not complete serial 7’s or spell “world” forwards and backwards. The examiner diagnosed the Veteran with PTSD but found that his symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. On December 23, 2014, the Veteran received a mental health evaluation after establishing care with the Salt Lake City VAMC where the Veteran reported that he would like to participate in PTSD treatment. He reported that he struggles most with re-experiencing and hyperarousal symptoms. He further reported difficulty sleeping, nightmares, and anger, and that his PTSD symptoms have intensified since retiring ten years ago. The examiner noted that although the Veteran reported on paperwork that he would be better off dead, he denied having any thoughts of suicide, intent or plan, and that the last time he had such thoughts was in 1974. Upon examining the Veteran, the examiner noted that the Veteran was appropriately groomed, mood was anxious, and affect congruent. There was no evidence of auditory or visual hallucinations, cognition problems, and insight was fair. The examiner referred the Veteran to the Start Point Class given by the PTSD clinic and recommended the Veteran be evaluated by a mental health prescriber. The examiner also recommended a substance abuse intake for the Veteran’s alcohol use to which the Veteran declined. In January 2015, the Veteran received a mental health evaluation to develop a treatment plan. The examiner noted that the Veteran’s PHQ-9 score was 15, indicative of moderate depression; however, it was noted that the Veteran’s depression was mainly due to his pain and inability to do things he enjoys. The examiner noted that the Veteran has significant difficulty sleeping, nightmares, irritability, and significant hypervigilance. The Veteran denied active suicidal/homicidal ideation, intent, or plan, but reported that in 1974, he held a shotgun to his head, but changed his mind. He reported that he has never made suicide attempts, he stopped hunting three years ago, and got rid of his guns. The examiner prescribed prazosin for nightmares and advised the Veteran to follow up in four weeks. In April 2015, during a medication management visit, the Veteran reported that his mood is good, but that he continues to get angry easily and has arguments with his wife triggered by his arousal symptoms. He reported difficulty falling and staying asleep, and that he wants to get better control of his daytime arousal symptoms and his nightmares. The examiner added trazodone to promote more sleep and a lower dose of prazosin for nightmares and daytime arousal. In a May 2015 follow-up visit, the Veteran reported that he has been enjoying the anger management group in the PTSD clinic, the trazodone has improved his sleep, and the prazosin has helped to decrease his nightmares. He further reported that his wife thinks he is doing great and they had a good time in Cancun. The examiner noted that the Veteran’s mood was good and he is controlling his PTSD symptoms better. He was casually dressed, with good hygiene, and no evidence of delusions, obsessions, suicidal/homicidal ideations, or thought disorder was noted. The examiner recommended the Veteran try the lower prazosin during the day prior to triggering events, and advised the Veteran to follow up in three months. On November 30, 2015, during a medication management visit, the Veteran reported that he completed the anger management group and his medications have been helpful, but that he has suicidal ideation without plan or intent at times. He reported sleeping 6 to 8 hours without nightmares, but that he has depression, irritability, and tends to isolate in his room. He further reported that he would like help for his drinking in response to his PTSD symptoms. The examiner noted the Veteran was casually dressed, with good hygiene, but that his mood was more down and irritable. There was no evidence of delusions, obsessions, compulsions, thought disorder, or suicidal/homicidal ideations. Memory was intact and judgment was fair. The examiner noted that the Veteran is having more difficulty with his mood and his drinking 2 to 3 nights a week. The examiner added a daytime dose of prazosin and fluoxetine for mood and irritability, and referred the Veteran for a substance abuse assessment. During his February 2016 substance abuse assessment, the Veteran reported symptoms of depressed mood, anxiety, intrusive thoughts, avoidance, hypervigilance, and that he feels pressured. He further reported that he consumes over ten beers approximately twice weekly when he drinks. Additionally, a PHQ-screen showed moderately severe depression. The examiner recommended outpatient treatment. On May 19, 2016, the Veteran reported that he was doing well on his medication and that the fluoxetine has helped his mood, anxiety, and irritability. He denied suicidal/homicidal ideation or plan, and noted that he was sleeping well on the trazodone and prazosin. He reported that he gets six hours of sleep without nightmares. He further reported that his self-esteem has improved and he is interacting with others. The Veteran reported that after participating in the substance abuse consult, he realized that he needed to control his drinking. He declined treatment, but has cut back on his own to one night of beers with his friends on Tuesdays while bowling. It was noted that the Veteran and his wife think the medications have helped their marriage by controlling his irritability and drinking. The Veteran received a VA examination for PTSD on May 24, 2016. During the examination, the Veteran reported being treated since 2014 and noted some improvement with his current medications. However, he reported that he still gets angry at other drivers on the freeway, but has had no fights or destruction of property. He reported a little depression, nightmares every now and then, and anxiety comes and goes. He further reported that he does not like gatherings of people and hates the fourth of July due to noise. The Veteran reported that with his current pills, he gets along with his wife, and with people out shopping, but he is always on guard. Socially, the Veteran reported that he meets some of his former co-workers for coffee, goes bowling, goes out to eat with his wife, and shops, but that he doesn’t like crowds. Additionally, he does yard work, plays golf, and goes fishing in his spare time. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbance of motivation and mood. The examiner found that the Veteran’s symptoms cause 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. After considering the above and remaining evidence, the Board finds that staged ratings are appropriate. Specifically, the Board finds that from September 23, 2013 to November 30, 2015, the Veteran’s PTSD symptoms more nearly approximated the criteria for a 30 percent rating as his symptoms were mild and did not significantly impair the Veteran’s occupational and social functioning. However, as of November 30, 2015, the Veteran’s symptoms worsened and more nearly approximated the criteria for a 50 percent rating, but no higher. The Veteran is not entitled to a higher rating for either period as his symptoms did not cause total social and occupational impairment, deficiencies in most areas, nor were they of the severity, frequency, or duration that would warrant a higher rating. In support thereof, the Board notes that for the period prior to November 30, 2015, the Veteran’s primary complaints included nightmares, irritability, anger, hypervigilance, and sleep impairment. However, the Veteran’s symptoms did not cause significant occupational or social impairment and was controlled by medication. This notion is supported by the December 2014 VA examiner who determined that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner found that the Veteran’s thought content and thought process was unremarkable, with no evidence of delusions, hallucinations, obsessive/ritualistic, or suicidal/homicidal ideation, intent, or plan. Similarly, in his December 2014 mental health evaluation for treatment, the examiner’s mental assessment noted that the Veteran was appropriately groomed, mood was anxious, and affect congruent. There was no evidence of auditory or visual hallucinations, cognition problems, and the Veteran denied suicidal/homicidal ideations. Although the Veteran was prescribed medications for nightmares in January 2015, and sleep impairment in April 2015, the evidence shows that the medications improved the Veteran’s PTSD symptoms as evidenced in subsequent medication management visits. As noted above, during his May 2015 medical visit, the Veteran reported improved sleep, decreased nightmares, and a better relationship with his wife. Additionally, the Veteran successfully completed the Start Point Class, anger management, and expressed interest in the insomnia and nightmare class. The Board recognizes that the Veteran was found to have moderate depression during his January 2015 medical visit; however, the Veteran reported that his depression was primarily related to pain. Notably, the evidence shows that the Veteran has a ten-year history of myalgias which has become worse in the last one to two years. Additionally, although the December 2014 examiner noted evidence of concentration impairments as the Veteran could not complete serial 7’s or spell “world” forwards and backwards, subsequent examinations in January, February, April, and May 2015 showed that the Veteran’s concentration was intact. Further, the Veteran reported being retired for ten years, and that his symptoms increased after he retired. However, he reported having no occupational difficulties while working. Moreover, despite the Veteran’s earlier reports of isolation in December 2014, the evidence shows that after being prescribed medication, he reported getting along with his family and wife better and participating in events. He further reported taking a trip to Cancun with his wife. Given the above, the Board finds that a rating greater than 30 percent is not warranted as the Veteran exhibited symptoms of nightmares, sleep impairment, anger, hypervigilance, isolation, and irritability mild in nature which were controlled by medications. Additionally, the Veteran’s symptoms were not of the severity, frequency, or duration that would warrant a higher rating as the Veteran reported a better mood, increased sleep, and a decrease in nightmares after being prescribed appropriate medications to control his symptoms. The Veteran consistently denied suicidal/homicidal ideations, aside from an isolated report from 1974, and mental health assessments consistently showed no evidence of delusions, hallucinations, neglect of personal hygiene, memory loss, or any other symptoms that would warrant a higher rating. Accordingly, the Board finds the preponderance of evidence weighs against the claim, and a rating greater than 30 percent is not warranted for the period prior to November 30, 2015. Alternatively, for the period beginning November 30, 2015, the Board finds the evidence is in equipoise as to whether a higher rating is warranted. The Board notes that as of November 30, 2015, the evidence shows that the Veteran’s symptoms worsened as evidenced in his medication management visit when the examiner added fluoxetine for the Veteran’s mood and PTSD symptoms as part of his medication regiment. During his visit, the Veteran reported that his medications have been helpful and that he is sleeping more without nightmares; however, he also reported instances of suicidal ideation without intent or plan. The examiner noted that the Veteran’s mood was down, and that the Veteran exhibited symptoms of low self-esteem, depression, isolation, and irritability. The examiner further noted that the Veteran was abusing alcohol to cope with his symptoms. Additionally, a PHQ-screen showed moderately severe depression. Subsequently, the evidence shows that after adding fluoxetine to the Veteran’s medication regiment, his condition appears to have improved. As noted above, in his May 2016 medication management visit, the Veteran reported that his mood, anxiety, and irritability improved after taking fluoxetine. In addition, he reported sleeping well, a decrease in nightmares, and reducing his drinking. It was also noted that the Veteran and his wife think the medications have helped their marriage by controlling his irritability and drinking. Moreover, the examiner from his May 2016 PTSD examination found that the Veteran’s mental complaints would continue to improve with continued medication management and psychotherapy. Furthermore, the Veteran did not exhibit significant social impairment as the Veteran reported that he has coffee with his former co-workers, goes out to eat with his wife, plays golf, goes fishing and goes bowling. He further reported having a great relationship with his wife, children, and grandchildren. The Board notes that the evidence clearly shows that the Veteran’s symptoms worsened as evidenced by the added medication; but his symptoms did not occur frequently or last for a significant period of time as they were controlled by medication. Given the above, the Board finds the evidence is in equipoise and resolves reasonable doubt regarding the degree of disability in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). Accordingly, a 50 percent rating is granted, but no higher, for the period beginning November 30, 2015. (Continued on the next page)   The Veteran is not entitled to a higher rating as the evidence does not show that the Veteran exhibited occupational and social impairment with deficiencies in most areas, or total impairment at any time during the appeal period. As explained above, the Veteran’s symptoms improved as evidenced by his reported decrease in nightmares, better sleep, better mood, and a reduction in anxiety. Additionally, aside from the Veteran’s isolated report of suicidal ideation in November 2015, the Veteran has consistently denied any further suicidal/homicidal ideations, nor has there been any evidence of delusions, hallucinations, obsessions, compulsions, thought disorder, or any other symptoms that would warrant a higher rating. In sum, the Board finds that for the period prior to November 30, 2015, the Veteran’s symptoms more nearly approximated the criteria of a 30 percent rating; thus, an increased rating is not warranted. However, as of November 30, 2015, the evidence is in equipoise as to the degree of disability. Therefore, resolving all doubt in favor of the Veteran, a 50 percent rating, but no higher, is granted. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel