Citation Nr: 18147565 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-43 814 DATE: November 6, 2018 ORDER Entitlement to a rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD), with a history of adjustment disorder and traumatic brain injury (TBI), is denied. REMANDED The issue of entitlement to an initial rating in excess of 30 percent for service-connected pes planus, with bilateral tailor’s bunion, is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s PTSD, with adjustment disorder and TBI, was productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 8045-9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2005 to January 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Entitlement to a rating in excess of 50 percent for service-connected PTSD, with a history of adjustment disorder and TBI, is denied. The RO granted service connection for acquired psychiatric disability, to include residuals of TBI, in February 2013. The RO assigned a 10 percent initial rating effective January 23, 2013, the day following discharge from active duty. In March 2013, the Veteran filed a claim for increased rating for service-connected acquired psychiatric disability. He also asserted service connection for PTSD. In the March 2015 rating decision on appeal, the RO granted service connection for PTSD, and rated acquired psychiatric disability, to include PTSD and residuals of TBI, 50 percent disabling effective January 23, 2013. In the decision below, the Board will assess whether a rating in excess of 50 percent has been warranted since then. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). In rating psychiatric disability, the RO used the hyphenated DC 8045-9411. The Board has considered all psychiatric and TBI symptoms in rating the disability on appeal, and finds that the Veteran’s rating for PTSD favorably contemplates the facets of judgment, visual spatial orientation, and neurobehavioral effects functions, including the reported symptoms of lack of patience, anxiety, and avoidance behaviors. As these facets were addressed in detail in PTSD examinations, a higher rating would not be warranted under the DC 8045 alone for these symptoms. Additionally, the Board notes that the Veteran’s migraine headaches are separately rated under DC 8100, as a TBI residual. Inasmuch as psychiatric disability has been rated as 50 percent disabling since the day following discharge from service, the Board will limit its discussion to whether a higher rating (i.e., 70 or 100 percent) has been warranted under 38 C.F.R. § 4.130 since then. A 70 percent disability evaluation 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 work like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is evidence of 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. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. In this matter, the evidence consists of VA treatment records, lay assertions from the Veteran, and VA examination reports dated in May 2012, February 2014, and June 2014. Prior to separation, the Veteran underwent VA psychological examination in May 2012. At that time, he reported symptoms of moderate intensity including irritable mood with frequent expressions of anger, daily depression and anxiety, insomnia, and hypersensitivity to perceived slights. He denied experiencing hallucinations, delusions, panic attacks, obsessive or ritualistic behaviors, inappropriate behavior, episodes of violence, suicidal and homicidal thoughts, or problems with activities of daily living. The examiner noted that the Veteran was appropriately dressed, with a cooperative attitude, irritable mood, poor impulse control, and appropriate affect. He demonstrated normal speech, memory, psychomotor skills, orientation, attention, thought processes, and insight. The Veteran was capable of managing his financial affairs and was employed on a full-time basis in transportation management. The examiner concluded that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning. In February 2014, the Veteran underwent a VA examination to evaluate his TBI residuals. The examiner noted a complaint of mild memory loss and impaired judgment, routinely appropriate social interaction, normal orientation to time, person, place, and situation, normal motor activity, normal communication skills, normal consciousness, and mildly impaired visual spatial orientation. The Veteran further reported symptoms including hypersensitivity to light and sound, headaches, anxiety, lack of patience, and withdrawn behavior. The examiner noted migraine headaches as a TBI residual. In a June 2014 report addressing TBI residuals, the examiner noted objective evidence of mild memory loss, normal judgment, routinely appropriate social interaction, normal orientation to time, person, place, and situation, normal motor activity, normal communication skills, normal consciousness, and normal visual spatial orientation. The Veteran reported symptoms including hypersensitivity to light and headaches. He denied experiencing any neurobehavioral effects. The examiner noted migraine headaches as a TBI residual. In a June 2014 report addressing PTSD, the Veteran stated that he had been married to his wife for five years and lived with her and their two sons, but that he was not a social person. He further reported symptoms including increased irritability and angry outbursts, intrusive memories, weekly nightmares, avoidance behaviors, persistent negative emotional state, markedly diminished interest in activities, feelings of detachment, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, concentration difficulties, depression, anxiety, sleep impairment, disturbances of motivation and mood, as well as difficulty adapting to stressful circumstances. He specifically reported that he avoided highways, as well as military bases and events. He tended to isolate himself and no longer enjoyed basketball. He slept with a gun under his pillow, and checked the locks and windows in his home multiple times each night. The Veteran stated that he attempted suicide one time in 2011. He reported vague, passive suicidal thoughts, but no active thoughts. He denied experiencing violent behavior or panic attacks. The examiner noted the Veteran as appropriately dressed and pleasant, with a depressed and anxious mood and restricted affect. He demonstrated normal speech, thought processes, and psychomotor skills. There was no evidence of psychosis at that time. The examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. She further opined that it was not possible to differentiate the degree of impairment of both the TBI and PTSD due to the overlapping symptoms related to concentration difficulties. VA treatment records document the Veteran’s reported symptoms including nightmares, flashbacks, irritability, mood swings, and concentration difficulties. Between June and August 2014, the Veteran reported auditory and visual hallucinations. But these symptoms were later denied in November 2016. Based on the foregoing evidence, the Board finds that a rating in excess of 50 percent for service-connected psychiatric disability is not warranted. The preponderance of the evidence shows that his PTSD has been manifested by a myriad of symptoms that have resulted in social and occupational impairment with reduced reliability and productivity, but not deficiencies in most areas, as contemplated by the next higher rating. The evidence reflects that the Veteran’s PTSD has been consistently manifested by depressed mood, anxiety, hypervigilance, flashbacks, mood swings, and intrusive thoughts that have resulted in self-isolation and social withdrawal. He also has endorsed experiencing sleep disturbance with nightmares, and the evidence shows that he has experienced irritability and angry outbursts. In this regard, the Board notes the Veteran has manifested a few of the symptoms contemplated by the 70 percent rating, including suicidal thoughts and unprovoked irritability. However, due to the lack of consistent severity, frequency, and duration of those symptoms, the symptoms have not been shown to be productive of deficiencies in most areas of his life. Indeed, while the Veteran reported at the June 2014 VA examination that he had vague, passive suicidal ideation, he reported that he did not have any active thoughts. He further stated that he had not attempted suicide since one occasion in 2011. The Board finds probative that he did not report having a long-standing history or recurring suicidal thoughts, particularly given that he has manifested depression throughout the appeal period. The Board also finds probative that he did not indicate any active thoughts or specific plan at that time. Indeed, there are no other complaints or notations of suicidal thoughts or ideation in the pertinent evidence of record, including the VA treatment records. Thus, the Veteran experienced one isolated occurrence of passive suicidal thoughts, which does not rise to the level of frequency, duration, or severity to warrant a higher, or even staged, 70 percent rating under DC 9411. In this regard, the Board notes that, with the exception of intrusive thoughts, the Veteran’s thought process and content has been within normal limits. The evidence of record throughout this period has also consistently noted the Veteran’s reports of irritability and angry outbursts. However, he has repeatedly denied episodes of violence and there is no indication that such outbursts have occurred on a near-continuous basis, as to rise to the level of frequency, duration, or severity to warrant a higher 70 percent rating. As a result, the Board finds that while the Veteran experiences unprovoked irritability, this alone and/or in conjunction with other symptoms, has not resulted in deficiencies in most areas or the degree of occupational and social impairment contemplated by the 70 percent rating. While the Veteran has consistently manifested symptoms due to his psychiatric disability, including isolation tendencies, avoidance behaviors, and a persistent negative emotional state, the symptoms have not been shown to affect his ability to function independently, appropriately, and effectively. Indeed, he has reported living with his wife and children during this time. He further reported taking classes five days a week for a portion of the appeal period. Moreover, the Veteran’s speech has also been consistently normal and he has also been well groomed, alert, and fully oriented. The Board also finds particularly probative that, while the evidence shows the Veteran experiences an impairment in social functioning, he has remained married during the appeal. Additionally, the June 2014 examiner did not find that he experienced difficulty in establishing or maintaining effective relationships. The evidence shows the Veteran’s social interactions are limited; however, the relationships noted above indicate that he has difficulty maintaining and establishing effective interpersonal relationships, as opposed to an inability to do so, as contemplated by the 70 percent rating. In sum, the Board finds that the Veteran’s PTSD symptomatology has not resulted in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. Indeed, a 100 percent rating is not warranted as the preponderance of the evidence does not reflect that the Veteran has manifested a gross impairment of thought processes or communication with persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or other symptoms indicative of a total impairment in social and occupational functioning at any point during the appeal period. Although the Board acknowledges the notation of memory loss in the TBI examinations of record, there is nothing in the record to suggest that such memory loss was related to the Veteran’s own name or the names of close family members. Additionally, despite the various reports of auditory and visual hallucinations in 2014, the evidence does not indicate that such symptoms were of the persistent nature to warrant a 100 percent disability rating. Thus, the Board concludes that the criteria for a rating in excess of 50 percent have not been met. REASONS FOR REMAND The issue of entitlement to an initial rating in excess of 30 percent for service-connected pes planus, with bilateral tailor’s bunion, is remanded. In the August 2016 VA Form 9, the Veteran indicated that his service-connected pes planus had worsened in severity. Specifically, he stated that his feet swelled to an unbearable degree, and that he was no longer able to wear closed-toe shoes. The Veteran further reported that, three months earlier, he had started to use a wheelchair to assist with locomotion. Based on the reports of worsening symptomatology, and on the fact that the most recent VA examination of the feet was conducted in May 2012, the Veteran should undergo new VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matter is REMANDED for the following action: 1. Associate with the claims file any outstanding VA medical records related to pes planus. Contact the Veteran and request that he provide or identify any additional updated outstanding private records pertinent to treatment for this disability. He should be asked to authorize the release of any outstanding pertinent non-VA medical records. 2. Schedule a VA examination to determine the severity of pes planus. (Continued on the next page)   All indicated tests and studies should be accomplished and all findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s pes planus. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel