Citation Nr: 18147972 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 14-34 543 DATE: November 6, 2018 ORDER Entitlement to a disability rating higher than 50 percent for posttraumatic stress disorder (PTSD) with depression is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected PTSD with depression has been manifested by symptomatology more nearly approximating occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, anxiety, panic attacks that occur no more than weekly, anger, irritability, mild memory loss, hypervigilance, difficulty concentrating, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships; occupational and social impairment, with deficiencies in most areas, is not shown. CONCLUSION OF LAW For the entire rating period on appeal the criteria for a disability rating higher than 50 percent for PTSD with depression have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations (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. 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. 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has reviewed all the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, 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. 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 claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 v. Brown, 6 Vet. App. 465, 469 (1994). Psychiatric disabilities, such as PTSD, are evaluated under the General Rating Formula for Mental Disorders (pertinent portions listed below). See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent disability rating 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; or memory loss for names of close relatives, own occupation, or own name. Id. A 70 percent disability rating requires 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); or inability to establish and maintain effective relationships. Id. A 50 percent disability rating requires 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. Id. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “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 v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The Veteran contends that his PTSD with depression disorder symptomatology is more severe than contemplated by the disability rating assigned. The Veteran’s PTSD with depression is currently rated as 30 percent disabling, prior to June 10, 2008, and 50 percent thereafter. The Veteran filed a claim for diabetes in February 2010. The RO used this claim substantively as an increased disability rating claim for PTSD. As such, the appeal period commences February 2010. The Veteran was afforded a VA examination in April 2010. He reported experiencing recurrent recollection of traumatic events that occurs two to three times a week and experiencing recurrent distressing dreams about the traumatic event on a daily basis. He described having nightmares a couple times a week and frequently waking up from the nightmares in a cold sweat. He endorsed feelings of distress, avoidance of people, places and situations that remind him of the traumatic events, depression, and diminished interest in daily activities. For the most part, he reported enjoying life. He denied suicidal thoughts and crying spells. He reported not liking to watch news about war or war movies, because seeing tanks makes him upset. He denied enjoying any social activities. His family and social history overall was reported as good. He has 10 siblings and reported his relationship with his parents and siblings as good. He was married to his first wife for 22 years, although they separated after 17 years of marriage. He married his second wife in 2000 and was still married to her at the time of this examination. He reported his marriage as happy. He has two adult children from his first wife and one child, age 12, from his second wife. His work history was described as being a full-time correctional officer from the time he left service to 2006. He worked at the same place and the relationship with his supervisor and coworkers were reported as fair. He stopped working because he fell and broke his neck. Upon examination, the Veteran was alert, oriented to time, place, and person, his appearance casually groomed, appearance, personal hygiene, and behavior appropriate. He maintained good eye contact, psychomotor education and retardations were absent. His speech was fluent, articulate, and of normal volume and tone. His attention, concentration, and memory were intact. Coordination was average. He was able to do serial 7’s, remembered the past three presidents and was able to spell “world” both forward and backward. Thought processes were logical and goal directed. Insight, judgment and impulse control were adequate. His affect was appropriate during the entire session. He denied suicidal or homicidal thoughts. Panic attacks and obsessive or ritualistic behaviors were absent. There was no impairment of abstract thinking. The examiner concluded that the Veteran can manage his own benefits, and perform his own activities of daily living. The Veteran could establish work relationships, but since he has not worked in the past four years it was difficult for the examiner to opine as to whether the Veteran was capable of establishing a good work relationship at the time of the examination. Socially, the Veteran was isolated and withdrawn, but able to maintain family role functioning. The examiner also concluded that the Veteran did not have difficulty understanding simple or complex commands, and was not a danger to self or others. During the July 2014 VA examination, the Veteran was diagnosed with PTSD and adjustment disorder with depressed mood. The examiner could differentiate the symptoms attributable to each diagnosis. The PTSD is characterized by daily and intrusive thoughts of trauma, recurring nightmares of trauma, dissociative feeling, psychological and physiological reactivity to certain cues, mild avoidant behaviors, negative beliefs about the experience, persistent anger, irritability, hypervigilance, problems concentrating, and sleep disturbance. The adjustment disorder was characterized by depressed mood related to his current physical limitations. The examiner concluded that his PTSD with depression symptoms resulted in occupational and social impairment with reduced reliability with productivity. The Veteran reported losing his mother in 2000 and losing one of his younger sisters two to three years prior. He keeps in contact with his surviving siblings, and is especially close to his older brother whom he talks to daily. He reported his marriage as somewhat rocky, stating that his wife recently left for one month. His 17-year-old son lives with his mother. He described keeping in contact with all three of his children. His past hobbies included yard work and working with cars. He ceased engaging in those hobbies because of his physical health problems. He still enjoyed watching sports. His symptoms included: depressed mood, anxiety, chronic sleep impairment, suspiciousness, panic attacks that occur weekly or less often, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The examiner stated that the Veteran could manage his financial affairs. The Veteran related his current depression to his physical limitations. His recent suicidal ideation (without serious intent) was due to his pain. The examiner concluded that the Veteran did not appear to pose any threat of danger or injury to self or others. In the remarks section of the report, the examiner noted that the Veteran’s PTSD symptoms have been aggravated by the accident he had in 2006, and that some of his initially endorsed symptoms were related to this event rather than the in-service event. The symptom of avoidance is more attributed to the Veteran’s concern that someone would bump into him, and not his PTSD. The Veteran reported that his PTSD symptoms affected his martial relationship and made it difficult for him to get along with coworkers. VA mental health treatment notes dated from March 2010 to April 2018 show symptoms consistent with the currently assigned 70 percent disability rating. During the March 2010 visit, the Veteran reported feeling he’s on “a more even keel”, improved sleep with prescribed medication, reduced nightmares from having them every night to two times a week, rare flashback episodes, occasional intrusive thoughts, and some self-isolating behavior. He endorsed having a supportive family in his wife, children, grandchildren and his brother who accompanied him to the March 2010 visit. Since retirement in 2008 he tried to stay active in the community, and was involved as an officer in his school’s alumni association. Upon mental examination, he was neatly dressed and groomed with good eye contact, cooperative and pleasant, alert and oriented to all three spheres, speech at normal rate, tone and volume, mood “stable”, affect full, thought process linear, logical, and goal directed, associations and judgment intact, insight fair. No delusions, hallucination or suicidal or homicidal ideas were noted. There was no paranoia or persecutory ideas. During the July 2010 visit, he reported being vigilant, to avoid the break-ins that were happening in his neighborhood. He described having less flashbacks and that he still avoids watching movies about army or war. He reported losing his cousin to gun violence and having a new granddaughter that visits him. During the March 2011 visit, he reported that after the death of his sister he became fearful of dying in the same manner as she did. His sister died in July because of having low blood sugar and he was recently admitted to the hospital for four days due to low blood sugar. He has two daughters, one son and five grandchildren under the age of eight. He denied feeling helpless or thoughts of suicidal ideation. When asked what he is looking forward to doing in the future, he responded that he looks forward to seeing his stepson graduate from basic training and waking up every morning. During a September 2011 visit, he reported that his mood remained irritable, but he continued to utilize coping skills. He admitted to verbal arguments, but denied physical altercations, preferring to walk away or spend time on his flight simulator when he gets angry. He reported a lot of family tension with his brother and sometimes with his kids, but reported good support from his wife. He endorsed auditory and visual hallucinations that occur in the daytime and nighttime, once a week which frighten him. Occasional flashbacks and intrusive thoughts were noted. He denied suicidal or homicidal ideation. An August 2012 VA mental health note indicates a denial of suicidal ideation homicidal ideation and auditory and visual hallucinations. The Veteran reported having a new hobby and enjoying flying airplanes. A March 2013 VA mental health notes indicates occasional nightmares and a denial of suicidal ideation, homicidal ideation, and auditory and visual hallucinations. Though the note indicates a denial of visual hallucinations, the Veteran reported visual hallucinations, specifically seeing soldiers at night. VA mental health notes dated September 2013 and December 2013 show that the Veteran was having nightmares about two to four times a week. He continued to report visual hallucinations of seeing people standing in his home. He also reported irritability and anger with some people and telemarketers. He denied suicidal or homicidal ideation. The Veteran had a 45 minute one on one session in March 2014. Upon examination, it was noted that he continued to suffer from re-experiencing phenomena with recurring nightmares, night-sweats, intrusive recollections, disturbed interpersonal relations, irritability, hyper-responsive autonomica and reclusiveness. The examiner concluded that directly related and subsequent to the Veteran’s traumatic experiences he has been unable to sustain a functional relationship with an employer or spouse due to irritability, disturbed relations and intrusive recollection with triggers and psychic numbing. VA one on one 45-minute sessions dated from July 2014 to November 2015 noted the same symptoms as the March 2014 session. The Veteran had a 30-minute one on one session in April 2016. No hallucinations, adverse medication effects, destructive ideations, impulses, or intentions, including homicidal and suicidal ideation were noted. VA one on one 30-minute sessions dated from October 2016 to April 2018 noted the same symptoms as the April 2016 session. The October 2017 did note a mental examination and no delusions or commanding hallucinations were noted. During the June 2018 VA examination, the Veteran was diagnosed with PTSD and major depressive disorder. The examiner was unable to differentiate the symptoms attributable to each diagnosis. The established diagnosis is PTSD with depression. The examiner concluded that his PTSD with depression symptoms resulted in occupational and social impairment with reduced reliability with productivity. The symptoms noted were: depressed mood, anxiety, chronic sleep impairment, suspiciousness, mild memory loss, such as forgetting names, directions, for recent events, impaired judgment, impaired abstract thinking, and disturbances of motivation and mood. Suicidal ideation, and persistent delusions or hallucinations were not noted. In weighing the evidence, the Board finds that throughout the appeal period, the symptomatology associated with the Veteran’s PTSD more closely approximated occupational and social impairment with reduced reliability and productivity. This is consistent with a 50 percent disability rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran’s PTSD was noted to be uniformly manifested by symptoms of depressed mood, persistent anger, irritability, hypervigilance, problems concentrating, anxiety, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. In addition, the Veteran has reported panic attacks that occur weekly or less often, vigilance, and during part of the appeal period, visual hallucinations. The preponderance of the evidence demonstrates that the criteria for a disability rating higher than 50 percent for the Veteran’s PTSD have not been met at any point during the relevant appeal period. Specifically, the Veteran’s PTSD has not been manifested by symptomatology more nearly approximating 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 that 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 or maintain effective relationships. As such, the Board finds that a 70 percent disability rating is not warranted for any time during the relevant appeal period. 38 C.F.R. § 4.130, Diagnostic Code 9411. In reviewing the criteria for a 70 percent disability rating and determining whether an evaluation higher than 50 percent is warranted, the Board finds that the evidence does not establish that the Veteran’s PTSD manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Regarding these areas, the Board has fully considered the frequency, severity, and duration of all the Veteran’s psychiatric symptoms with respect to their effect on his overall occupational and social functioning. 38 C.F.R. § 4.126(a). Throughout the appeal period the Veteran had difficulty in establishing and maintaining effective work and social relationships. He was employed full time from the time he left service to 2006. The reason he ceased working in 2006 was because he became physically injured on the job. His PTSD symptoms were not listed as a factor in his employment ending. He has consistently described his relationship with his current wife in a positive light—with occasional problems. He has three children and five grandchildren. Although he has, at various times during the appeal period, expressed challenges with some of his family members, the evidence demonstrates that overall, he has a good support system, a great relationship with his wife and maintains regular contact with his children and grandchildren. As such, the Veteran has not shown an inability to establish and maintain effective relationships or significant occupational impairment—factors consistent with a higher rating of 70 percent. The Veteran also did not experience a deficiency in the area of judgment or thinking. The June 2018 VA examiner did describe the Veteran’s judgment and thinking as impaired. However, across the relevant appeal period, his judgment has been described as adequate and intact and his thought processes have been described as linear, logical, and goal-directed. In addition, he routinely denied suicidal or homicidal ideations during the appeal period. The Board notes that during the July 2014 VA examination, mention was made regarding the Veteran’s suicidal ideation. However, this was without serious intent and was a result of the physical pain he was dealing with as a result of the 2006 accident. This ideation was not a result of his PTSD. In addition to the areas specifically listed under the criteria for a 70 percent disability rating, the Board finds that the evidence establishes that the Veteran does not experience deficiencies in other areas, such as appearance, attitude, perception, cognition, speech, and insight. His positive attitude and resilience was most notable during the March 2011 visit where he was dealing with the death of his sister, and being hospitalized for four days, but could describe looking forward to seeing his stepson graduate from basic training and waking up every morning. During the appeal period, the Veteran’s appearance has been consistently described as neatly dressed, causally groomed, and appropriate; there is no evidence of a disheveled appearance or an inability to maintain basic personal hygiene. His attitude was consistently described as cooperative and pleasant. The Veteran was described as cognitively alert and oriented in all planes. There are times during the appeal period where the Veteran reported visual hallucinations—specifically between March 2013 and December 2013. Although hallucinations is a symptom consistent with a 70 percent disability rating, looking at the entire period on appeal and the totality of the circumstances, the Board does not find those reports alone to rise to disability rating higher than 50 percent. Although the most recent VA examiner described his judgment and abstract thinking as impaired, there was no evidence of altered alertness, disorientation, or significant memory impairment. His speech pattern was consistently described as normal; there was no evidence of alterations in tone, rhythm, or rate. Finally, his insight was consistently described as fair and adequate during this timeframe. In arriving at these conclusions, the Board has carefully considered the lay assertions of the Veteran and has considered the brief period where he reported visual hallucinations. However, in this case the competent medical evidence is more probative showing behavior consistent with the currently assigned 50 percent disability rating. The Board finds that the visual hallucinations, in conjunction with the other PTSD symptoms do not rise to a level of occupational and social impairment with deficiencies in most areas required for a 70 percent rating. The lay statements have been considered together with the probative medical evidence in clinically evaluating the severity of the Veteran’s PTSD symptomatology. Although the Veteran met some of the criteria for a 70 percent rating the Board concludes his overall level of disability did not exceed his current 50 percent rating. See Mauerhan, 16 Vet. App. at 442. The actual reported symptoms and manifestations repeatedly noted in the record are commensurate with the degree of social and industrial impairment required for the assignment of the 50 percent disability rating. The Board finds that the Veteran’s deficiencies must be “due to” the symptoms listed for that rating level, “or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 117. Here, his symptoms noted during the VA examinations and VA mental health treatment records are of a similar severity, frequency, and duration of those noted under the criteria for a 50 percent rating. Therefore, in consideration of the frequency, severity, and duration of the Veteran’s symptoms and their effect on his overall occupational and social functioning, the Board finds that his PTSD did not manifest in an occupational and social impairment with deficiencies in most areas at any time during the appeal period. Based on the above, the Board finds that the symptomatology associated with the Veteran’s PTSD does not more nearly approximate the criteria for a 70 percent rating. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. The Board finds that the preponderance of the evidence is against an increased disability rating higher than 50 percent at any point during the relevant appeal period. As the preponderance of the evidence is against the claim for an increased disability rating higher than 50 percent, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel