Citation Nr: 18147933 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 08-23 088 DATE: November 6, 2018 ORDER The claim of entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to January 22, 2007, is granted. FINDING OF FACT Prior to January 22, 2007, the Veteran’s PTSD manifested with, at worst, occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial evaluation of 50 percent prior to January 22, 2007, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from November 1968 to November 1970, including service in the Republic of Vietnam. In April 2018, the Court of Appeals for Veterans Claims (Court) vacated and remanded the Board’s May 2017 denial of entitlement to an initial evaluation in excess of 30 percent for PTSD. The Joint Motion for Partial Remand (JMPR) stated that the Board failed to adequately explain its denial, particularly with regard to the Veteran’s demonstrated social impairment in the initial period on appeal. Accordingly, that portion of the denial was vacated and remanded for adjudication consistent with the JMPR. 1. The claim of entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to January 22, 2007 The Veteran contends that he is entitled to an initial evaluation in excess of 30 percent prior to January 22, 2007. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, 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; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD is rated under Diagnostic Code 9411, 38 C.F.R. § 4.130. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130. A 10 percent rating is warranted when there is 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 continuous medication. A 30 percent rating is warranted 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 warranted 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 (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. A 70 rating 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 an inability to establish and maintain effective relationships. A 100 percent rating is assigned 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, 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, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of 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. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. In June 2005, the Veteran’s VA treatment records reflect a present diagnosis of PTSD and ongoing treatment for the condition. Prior to the period on appeal, the Veteran engaged in individual and group therapy at the local Vet Center. In December 2005, a VA mental health initial consult note assessed the overall severity of the Veteran’s PTSD. The Veteran reported that loud sounds, such as helicopters, caused flashbacks to his service in Vietnam. In those situations, his heart pounded, he became afraid, experienced hot flashes and smelled Vietnam, including dead bodies. The Veteran exhibited isolative behaviors and had difficulty feeling close to others. He expressed difficulty controlling his own anger. He reported “black spaces” in which he could not remember what happened. He was suspicious, hypervigilant, and often depressed. The Veteran reported initial insomnia with frequent awakenings. His memory and concentration were variable. The Veteran reported suicidal thoughts but without prior attempts. He reportedly “would not mind if he died in his sleep.” The Veteran did not experience homicidal ideation, but became very angry, which scared him. He denied hallucinations. He was cooperative in treatment and showed good eye contact. The Veteran was appropriately dressed and groomed. His mood was depressed and anxious with normal speech and thought processes. His judgment and insight were good. The Veteran also underwent a mental status examination for Social Security Disability in December 2005. The Veteran reported being fired from at least 3 jobs because he had difficulty controlling his anger, which lead to disagreements with his boss or coworkers. Interacting with others caused him to withdraw, and become nervous and shaky. The Veteran experienced: anxiety, depression, nightmares, crying spells, suicidal ideation, flashbacks, trouble controlling his anger, mood swings, and short-term memory loss. The Veteran reported to the examination appearing thin and emaciated, as well as chronically ill and older than his stated age. His speech was slow but relevant and coherent. He was oriented to time, place, person and situation, but lethargic with concurring signs of anxiety. There was no evidence of psychotic thinking or behavior. He denied delusions and hallucinations. There were mild problems with remote memory noted, and moderate problems with recent memory and immediate recall. The Veteran exhibited poor concentration and attention. In January 2006, VA treatment records reflect that the Veteran was alert and oriented for treatment but with a blunted mood and affect. He was casually dressed and appropriately groomed. The Veteran exhibited anxiety and reported he was most comfortable alone. He reported difficulty falling asleep, and limited short-term memory. His judgment and insight were adequate. The Veteran experienced frequent nightmares, and the sounds of helicopters caused flashbacks to Vietnam. In January 2006, Vet Center records reflect ongoing symptoms of nightmares, insomnia, low energy, low self-concept, numbness of emotions, depressed mood and irritability. The Veteran reported that his spouse mocked him and his efforts to improve for sport. In the Veteran’s February 2006 VA examination, the examiner found moderate symptoms overall. The Veteran reported experiencing depressed mood, irritability, anxiety, loss of interest in previous activities, frequent crying spells, fatigue, hopelessness, helplessness, decreased libido, survivor’s guilt, poor concentration, intrusive thoughts, flashbacks and nightmares. Helicopters were noted to trigger flashbacks. The Veteran experienced initial and middle insomnia, as well as nightmares about Vietnam 3 to 4 times per week. He slept separately from his wife due to the nightmares and night sweats. The Veteran also experienced symptoms of hypervigilance and an exaggerated startle response. The examiner noted that he was easily agitated and demonstrated mood lability with frequent angry verbal outbursts. He was unable to watch television related to the Iraq War. There was a history of domestic violence in his relationship, which, according to contemporaneous Vet Center records, involved his wife hitting and pushing him. The Veteran reported that he was once fired from a job after threatening his boss. He denied present suicidal or homicidal ideation. There was a long history of marital discord noted, and the Veteran spent most of his time alone, reading or watching television. Upon examination, the Veteran was alert and oriented. He was casually dressed and well-groomed. His affect was sad and tearful. The Veteran’s thought processes and content were goal directed and coherent. There was no evidence of obsessions, compulsions or psychosis. He denied hallucinations. The examiner noted problems with his recent memory. In May 2006, VA treatment records note ongoing problems in the Veteran’s marriage. His wife “thinks he should be working,” which caused significant conflict in the relationship. The Veteran exhibited social isolation, staying home alone and avoiding crowds. He continued to experience frequent nightmares, hypervigilance, sleep disturbances, difficulty concentrating, memory impairments, suicidal thoughts without plan or attempts, fatigue, lack of motivation, anxiety and depressed mood. The Veteran also reported episodes of anger, and one amnestic episode after hearing a gunshot. He remained very sensitive to loud noises. The Veteran was alert and oriented for treatment. Speech was very slow and of low tone and volume. There was some thought blocking noted, as well as extreme hypervigilance. The Veteran exhibited some paranoia but denied hallucinations. The clinician noted that he had paranoid, anxious posturing with poor eye contact. His judgment and insight were fair. His memory was somewhat impaired. In July 2006, VA treatment records reflect that the Veteran hoped to take a trip without his wife to see friends and other veterans. The psychiatrist noted: “he seems to be so anxious and depressed, it would be hard to imagine him taking this trip alone.” The Veteran reported persistent problems with nightmares, hypervigilance, flashbacks, social isolation, sleep disturbances, and ongoing conflict with his wife. She did not want to hear about his experiences in Vietnam, and thought he should be “doing something.” Reportedly, after his previous appointment with the psychiatrist, he experienced a panic attack in his car. In August 2006, Vet Center records reflect that the Veteran was unable to experience a full range of emotions. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is entitled to a 50 percent, but no higher, evaluation for his PTSD prior to January 22, 2007. The Board recognizes that the Veteran suffered from deficiencies attributable or exacerbated by his PTSD. The Board’s determination of the appropriate degree of disability is a finding of fact. In applying the ratings schedule, the Board considers the severity, frequency, and duration of psychiatric symptoms to determine the appropriate disability evaluation. See, e.g., Brewer v. Snyder, No. 15-2800, 2017 U.S. App. Vet. Claims LEXIS 90, at 13 (Vet. App. Jan. 31, 2017); citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). While symptoms are listed under each category for evaluation, the particular symptoms are to be demonstrative of that overall level of severity, frequency and duration. Mauerhan v. Principi, 16 Vet. App. 436, 442 (U.S. 2002). As such, the Board has considered the symptoms specific to the Veteran throughout the period on appeal, and determined the analogous evaluation pursuant to the ratings schedule in 38 C.F.R. § 4.130. When considering the severity, frequency and duration of the impairments as delineated in the 70 percent evaluation, the Board notes that the symptoms listed present a significant impediment to daily life. Symptoms such as obsessional rituals which interfere with routine activities, near-continuous panic or depression, and the inability to establish and maintain effective relationships, present obstacles to routine functioning on a daily basis. Personal hygiene and grooming are not limited to one particular sphere, but affect work, school, and family relations. Spatial disorientation and intermittently illogical speech are markedly severe symptoms associated with basic cognitive function and the ability to interact with the world. As exemplified by the symptoms listed in this category, the 70 percent evaluation is appropriate for deficiencies that harm most areas of life. Either symptoms are continuous, or near-continuous, or represent such a severity that routine daily functions are chronically impeded. The symptoms listed in the 50 percent evaluation represent impediments that are diminished from the 70 percent evaluation in duration, frequency, and severity. Speech patterns of a particular type or frequency and difficulty in complex commands impair fewer daily functions than the higher evaluative category, as does difficulty in establishing and maintaining effective work and social relationships. The scope of each of the symptoms listed to represent a 50 percent impairment is more limited than those of the 70 percent evaluation. In contrast, the evaluation for a 100 percent impairment includes symptomatology that presents a total impairment to daily functioning. Not only are the representative symptoms of the most severe possible from a psychiatric disorder, but they interfere with the ability to independently engage in activities of daily life. Persistent delusions or hallucinations, disorientation to time or place, and significant memory loss all prevent the person from routine engagement with the world. The ability to even maintain the most basic hygiene standards has been harmed by the severity or frequency of the associated symptomatology. When symptoms of a psychiatric disorder are so severe as to present a total impairment to occupational and social activity, then a 100 percent evaluation should be afforded. Throughout the period on appeal, the Veteran regularly endorsed symptoms of anxiety, depressed mood, flashbacks, and nightmares. He reported difficulty interacting with others, and experienced a severely strained relationship with his wife. The Veteran reported difficulty controlling his anger to the point that he could not communicate with his wife. His speech was frequently slow on examination, and he presented as both lethargic and anxious. The Veteran’s wife mocked his attempts to improve his well-being, instead believing that he should be working. They slept separately, initially due to his frequent nightmares. Evidence of record also reflects varying degrees of remote and recent memory impairment. The Veteran also reported losing employment due to his temper and inability to interact with others, including one occasion in which he was fired for threatening his boss. The manifestations of the Veteran’s service-connected PTSD in this timeframe do not rise to the level of a total occupational and social impairment for the purposes of 38 C.F.R. § 4.130. His impairments, while touching on many areas of his life, are not of such severity to interfere with routine functions necessary for daily life. The Veteran was consistently alert and oriented in all spheres, and maintained coherent thought processes throughout the period on appeal. His judgment and insight remained fair, and there was no evidence of obsessions, compulsions or hallucinations. While he did not demonstrate a plan or intent, the Veteran reported that he would not mind if he died in his sleep, and reiterated those thoughts through treatment. Suicidal ideation is a symptom listed in the rating criteria for a 70 percent evaluation, but the rating criteria are not meant to be an exclusive list of symptoms for each level of severity. The mere presence of one more severe symptom does not automatically elevate the Veteran’s overall impairment. Instead, the Veteran’s symptoms, taken as a whole, must be considered by severity, frequency, and duration, and compared to the type of occupational and social impairment associated with a corresponding percentage. In sum, the Veteran’s symptoms do not mirror the severity, frequency and duration of ones that would warrant a finding of occupational and social impairment in most areas. Resolving reasonable doubt in favor of the Veteran, he is entitled to an evaluation of 50 percent, but no higher, prior to January 22, 2007. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel