Citation Nr: 18150481 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-27 568 DATE: November 15, 2018 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire appeal period, the Veteran’s PTSD is manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1989 until March 1990 and from September 1990 until June 1991, including a tour of duty in Southwest Asia from October 1990 until May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, as relevant, denied a rating in excess of 50 percent for PTSD and entitlement to a total disability rating based on individual unemployability (TDIU). While the Veteran’s notice of disagreement and the statement of the case addressed both claims, he limited his appeal to the claim of entitlement to an increased rating for PTSD in his substantive appeal (VA Form 9). Further, the Board notes that, during the course of appeal, the Veteran’s rating for his PTSD was increased to 70 percent, effective October 31, 2012, the date VA received his increased rating claim, in an October 2017 rating decision. Accordingly, the issue has been recharacterized to accurately reflect the matter before the Board; however, as a higher rating is still available, the Veteran’s claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In accordance with his request, the Veteran was scheduled for a Board hearing before a Veterans Law Judge in October 2018; however, he failed to report for it. Therefore, his request for a Board hearing is considered withdrawn. 38 C.F.R. §§ 20.702(d), 20.704(d). The Board also notes that additional evidence, to include updated VA treatment records, has been associated with the record since the issuance of the October 2017 supplemental statement of the case. However, as such is irrelevant or duplicative of the evidence previously considered by the Agency of Original Jurisdiction (AOJ), there is no prejudice to the Veteran in the Board proceeding with a decision at the present time. See 38 C.F.R. § 20.1304(c). Entitlement to a rating in excess of 70 percent for PTSD. The Veteran contends his PTSD is more severe than as reflected by the currently assigned disability rating. In this regard, he reports that his symptoms have increasingly worsened since he separated from military service. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board for the Veteran’s PTSD claim begins on October 31, 2012, the date VA received his claim for an increased rating, plus the one-year look-back period. See 38 C.F.R. 3.157; Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s service-connected PTSD is evaluated under the criteria of DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 70 percent rating is warranted where 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); inability to establish and maintain effective relationships. Id. A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the 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.” 38 C.F.R. § 4.126(a). The Board notes that the revised DSM-5, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). Consequently, the Board will not consider any previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). By way of background, an April 2012 Board decision awarded service connection for PTSD. Thereafter, in a May 2012 rating decision, the AOJ implemented such award, and assigned an initial 30 percent rating prior to January 18, 2012, and a 50 percent rating thereafter based primarily on a January 2012 VA examination. Notably, the examination falls within the one-year look back period from the current October 2012 claim. However, such examination showed that the Veteran’s PTSD resulted in, at most, occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula. Specifically, at the January 2012 VA examination, the Veteran was noted to have been married for 16 years, with 8 children, 4 of whom lived with the Veteran and his wife. He reported his relationship with his wife and children was okay. He reported he had a better relationship with the children who did not live with him. He denied any friendships or social relationships, noting he knew people from the gym when he used to go there. The Veteran reported he was working until August 2011. The examiner noted that, although he has trouble interacting with people, he did not have many problems when he was employed because his former jobs allowed him to work on his own. The examiner noted the Veteran did not display inappropriate behaviour, his grooming and hygiene were good, he had an appropriate affect, he had an anxious and nervous mood, and he reported a depressed mood all the time. The Veteran was then noted to have PTSD manifesting in symptoms of a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbance in motivation and mood, and difficulty in establishing and maintaining effective relationships. However, his impulse control was good, as he reported that he would yell, but did not commit acts of physical violence. Following the receipt of his October 2012 application for a TDIU, which was construed as a claim for an increased rating for his PTSD, the Veteran was afforded a new VA examination in February 2013. At such time, his PTSD was similarly found to result in occupational and social impairment with reduced reliability and productivity, which, again, is consistent with a 50 percent rating under the General Rating Formula. Importantly, the February 2013 examiner noted only a moderate impairment of the Veteran’s occupational functioning due to PTSD. Specifically, the examiner opined that he would not function well in a position that required much interaction with the general public, but, when he last worked, he functioned well when he was able to work alone. It was also noted that the Veteran reported some good relationships with others on the job. Since the previous examination, it was reported that the Veteran was still with his wife, and still interacted daily with his children; however, those relationships had further deteriorated, and he had not worked. Consistent with the findings from the prior examination, the Veteran was noted to have symptoms of a depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining relationships. Thereafter, as noted above, the Veteran’s rating for his PTSD was increased to 70 percent, effective the date VA received his claim for an increased rating, in an October 2017 rating decision, based primarily on a September 2017 VA examination. At such time, the Veteran’s PTSD-related depression was noted to have worsened substantially enough in severity to warrant its own diagnosis. However, as the depression diagnosis is attributable to PTSD, all symptomatology referable to depression will be considered due to PTSD for the purposes of this decision. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran’s service-connected disability). Importantly, the examiner opined that the Veteran’s psychiatric disorders caused an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, which is consistent with a 70 percent rating under the General Rating Formula. At such time, the examiner noted that the Veteran’s PTSD resulted in symptoms of re-experiencing, avoidance, distressing memories and dreams, dissociation, psychological distress, physiological reactions to triggers, avoidance, exaggerated negative beliefs, negative emotional state, diminished interest, feelings of detachment/estrangement, inability to experience positive emotions, irritability and angry outbursts, hypervigilance, exaggerated startle effect, anxiety, panic attacks, and impaired impulse control, while his symptoms of depressed mood and sadness were attributed to his depressive disorder. Attributable to both disorders were symptoms of near-continuous panic or depression, chronic sleep impairment, disturbance of motivation and mood, difficulty establishing work and social relationships, and problems with concentration. However, as previously noted, all such symptoms, and their resulting impairment, are considered to be attributable to the Veteran’s service-connected PTSD. See Mittleider, supra. Furthermore, the examiner noted the Veteran was still married, but currently lived with his mother to alleviate stress. The Veteran denied having any close friends, but indicated that he associates with his uncle and spends a lot of time with his mother. He further reported associating with some people he sees when he goes to the VA, but he does not know them well enough to know their names. The Veteran had worked since the previous examination, last cleaning at a Krispy Kreme. However, he indicated that he only worked 2 to 3 months in total throughout the year, and was helped out by a military man who ran the place. The job ended over a month before the examination due to an angry incident at work, with the Veteran noting he had problems getting along with others at work due to arguments. The examiner noted the Veteran had good grooming and hygiene, good eye contact, normal motor activity, and a neutral facial expression, and his speech was clear and at a normal rate and volume. He was visibly anxious, and stated he was nervous and excited. He had an anxious affect, but was fully alert and oriented to person, place, time, and situation. Finally, the Veteran was noted to have symptoms of a depressed mood, anxiety, near continuous depression, chronic sleep impairment, flattened affect, disturbance in motivation or mood, difficulty in establishing and maintaining effective relationships, inability to establish and maintain relationships, and impaired impulse control, such as unprovoked periods of violence. The record also reflects the same level of occupational and social functioning in VA treatment records and Social Security Administration (SSA) disability records during the period on appeal. Notably, the Veteran was found to be disabled for SSA purposes; however, his primary disability was noted to be diabetes mellitus, with anxiety-related disorders as a secondary disability, in a December 2012 determination. In such records, his wife described him having trouble interacting with people in that he would yell or get angry quickly when dealing with stress or changes. She further indicated that he would go into his room when he would get frustrated with his family and sit alone and talk to himself. Based on the foregoing, the Bard finds that a rating in excess of 70 percent is not warranted at any point during the period on appeal. In this regard, the Veteran never reported any symptoms commensurate with a 100 percent rating, nor do his treatment or SSA records, or examinations, reflect any such symptoms. Notably, he had worked successfully prior to the period on appeal, with the VA examiners noting he would be able to work successfully in a position that did not require interpersonal interaction. Such a finding is consistent with the Veteran’s attempt to work at a Krispy Kreme for a period between 2016 and 2017, which ended as a result of interpersonal conflicts. However, while he has been found to have difficulty with the public, and establishing and maintaining relationships, he has, in fact, maintained some close relationships for long periods of time, including his wife, to whom he is still married, as well as other family members, to include his children, his mother, with whom lives at times, and his uncle. Importantly, the Board recognizes that the Veteran’s symptoms cause difficulty in these relationships; however, such difficulty is contemplated by his currently assigned rating, and it does not rise to the level of a total impairment. Moreover, the Veteran presents with numerous other symptoms, all of which fall under a 70 percent or lower rating. In this regard, the Board has considered the cumulative effect of all these symptoms, yet finds the September 2017 VA examiner’s opinion highly probative in determining the Veteran’s PTSD results in, at most, occupational and social impairment with deficiencies in most areas. In this regard, the examination is consistent with the other evidence of record, and the examiner provided a detailed description of the impact the Veteran’s PTSD has on his social and occupational functioning. Notably, the examination provided the most severe evaluation of the Veteran’s PTSD, which is consistent with his complaint of worsening symptoms over time. Yet even in consideration of worsening symptoms, given nature, frequency, severity, and duration of the symptoms the Veteran endorsed throughout the appeal period, the Board finds that the Veteran’s PTSD is manifested by symptomatology resulting in, at most, occupational and social impairment with deficiencies in most areas. Consequently, as such does not result in total occupational and social impairment, a rating in excess of 70 percent for such disability is not warranted at any point pertinent to the appeal period. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected PTSD; however, the Board finds that the Veteran’s symptomatology referable to his PTSD within the current period on appeal has been stable. Therefore, assigning additional staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. As such, that doctrine is not applicable in the instant appeal, and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel