Citation Nr: 18155180 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 10-40 895A DATE: December 4, 2018 ORDER As of December 13, 2012, an initial rating of 70 percent for PTSD is granted. Prior to December 13, 2012, an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. From March 24, 2009 to July 18, 2013, a total disability rating due to individual unemployability (TDIU), based only upon the Veteran’s service-connected PTSD, is denied. FINDINGS OF FACT 1. As of December 13, 2012, the Veteran is shown to have symptoms of near-continuous depression, impaired impulse control and difficulty in adapting to stressful circumstances, including work or a worklike setting. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s symptoms are found to more nearly approximate the criteria for the next higher rating from December 13, 2012. 2. Prior to December 13, 2012, the Veteran’s PTSD is manifested by occupational and social impairment with reduced reliability and productivity. Although the Veteran experienced deficiencies in many areas due to his PTSD symptoms, the severity of the symptoms experienced during this period did not rise to the level contemplated by the criteria for the next higher 70 percent rating. 3. Throughout the current period on appeal, the Veteran was not rendered unable to secure and follow substantially gainful employment due to symptoms of his PTSD. CONCLUSIONS OF LAW 1. As of December 13, 2012, the criteria for an initial 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.126, 4.130 Diagnostic Code 9411 (2017). 2. Prior to December 13, 2012, the criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.126, 4.130 Diagnostic Code 9411 (2017). 3. Prior to July 18, 2013, the criteria to establish entitlement to TDIU, based upon PTSD only, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.15, 4.16 (2017); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1969 to November 1970 with combat service in the Republic of Vietnam. In addition to other awards and decorations, the Veteran is in receipt of the Combat Infantryman’s Badge, the Bronze Star Medal, a second Bronze Star with “V” device, and the Army Commendation Medal with “V” device. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in March 2017 to present testimony on the issues on appeal. The Board previously decided this appeal in June 2017, awarding the Veteran an increased rating for PTSD from 30 percent to 50 percent prior to July 2013 and an increase to 70 percent since July 2013. The Veteran disagreed with these ratings and appealed to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand, both the Veteran and VA agreed that the Board did not adequately discuss consideration of all favorable evidence in the claims file with regard to the period prior to July 2013. Thus, the appeal has been remanded for the Board to remedy this error. However, the Veteran did not wish to appeal the portion of the Board’s decision establishing a 70 percent rating since July 18, 2013 and that portion of the appeal was dismissed by the Court. As such, the Board now addresses only the increased rating claim for PTSD prior to July 18, 2013. Additionally, following the Joint Motion for Partial Remand, in June 2018, the Veteran’s attorney expressly raised the matter of entitlement to a TDIU rating based upon the Veteran’s service-connected PTSD. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran had previously asserted a claim for TDIU based upon his service-connected coronary artery disease, status post myocardial infarction, that was denied by rating decisions in May 2013 and December 2014, during the pendency of the present appeal. The Veteran did not file a Notice of Disagreement with either of those decisions. In October 2018, the Veteran subsequently filed an additional claim for TDIU based on the Veteran’s service-connected coronary artery disease and PTSD. The Board does not currently have appellate jurisdiction over any rating claim other than that regarding PTSD. As such, the appeal presently before the Board covers the period from March 24, 2009 to July 18, 2013 and is limited only to consideration of an increased rating for PTSD in excess of 50 percent, including whether the Veteran is entitled to TDIU based on PTSD only, for the period prior to July 18, 2013 pursuant to the holding in Rice v. Shinseki. The current decision by the Board does not reach the matter of whether TDIU is warranted for any time period based on any service-connected disability other than the Veteran’s service-connected PTSD. The Veteran has also been diagnosed with depressive disorder during the appeal period, as shown in his December 2012 VA examination. Because the December 2012 examiner opined that it is not possible to differentiate what symptoms are attributable to the diagnosis of PTSD versus depressive disorder, the Board does consider all the Veteran’s psychiatric symptoms in rendering the evaluation for PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). 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 percentage ratings are based on the average impairment of earning capacity resulting from service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, 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 reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. In this case, the Veteran seeks a higher initial rating prior to July 18, 2013 for his service-connected PTSD, rated as 50 percent disabling for this period under diagnostic code 9411. A 50 percent rating is assigned 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 percent rating is assigned 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 a work-like setting); 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Use of the term “such as” in the criteria for a rating under § 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 given rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because all nonzero disability levels in the General Rating Formula for Mental Disorders are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that a 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. In other words, when evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of all psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during any periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. It is the responsibility of any reviewing authority to interpret examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the assigned rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2, 4.126. As of December 13, 2012, an initial 70 percent rating for PTSD is granted. The previously established date for the increase in the Veteran’s PTSD disability rating to 70 percent was July 18, 2013, the date of death for the Veteran’s spouse. Board decision, June 2017. The Board finds, however, that at the time of the VA examination for PTSD on December 13, 2012, the examiner endorsed symptoms listed in the General Rating Formula for Mental Disorder’s criteria for a 70 percent rating. These endorsed symptoms included near continuous depression that affected the Veteran’s ability to function independently, appropriately and effectively, impaired impulse control, and difficulty in adapting to stressful circumstances. Although the Board finds the Veteran was not exhibiting the severity of other criteria contemplated at this level, where there is a question as to which to two evaluations is to be applied, the higher evaluation is to be assigned where the disability picture “more nearly approximates” the criteria for the higher rating. 38 C.F.R. § 4.7. To this end, the Board will resolve reasonable doubt in favor of the Veteran and find that as of the date of the December 13, 2012 examination, the severity of the symptoms described by the examiner more nearly approximate the criteria for a 70 percent rating. The psychologist performing this examination noted the Veteran was casually dressed, cooperated fully and maintained good eye contact during the examination. He seated himself near the wall so that he could see the door, scanned outside the window while talking, and had to turn up the oxygen flown on his tank when he became emotional or agitated during the interview. The Veteran was oriented to time, person, and place. There was no impaired motor impulse control noted, and the Veteran denied compulsive or ritualistic behaviors that interfered with functioning, other than checking locks frequently. His speech was normal. The Veteran endorsed symptoms of depression and anxiousness, without symptoms of panic. His affect was restricted, anxious, and sad or tearful at times. The examiner noted that he had mild fleeting homicidal ideation, but at no one in particular. An example was later given during the Veteran’s March 2017 hearing testimony of non-specific road rage. The Veteran was also documented in the December 2012 examination report as denying delusions, hallucinations, and suicidal ideation. The Veteran later contested this finding, saying that in 2016 (years after this examination, and during a period not currently on appeal) he had suicidal thoughts, taking some actions toward making such an attempt with a firearm at his home. Board hearing transcript, March 2017. The Veteran also described riding a motorcycle without a helmet, essentially stating that he knew if he crashed, he could die and “just not caring.” Id. The Veteran states he reported this to the examiner and was upset that the examiner did not check the box on the examination report to indicate suicidal ideation. Nonetheless, even given the thoughts of death and formerly engaging in potentially high-risk behavior such as riding a motorcycle without a helmet as he describes, the Board does not find evidence that during the relevant period on appeal, the Veteran was in persistent danger of hurting himself or others or symptomatology of equivalent severity to warrant a 100 percent rating. Specifically, as to the argument regarding riding a motorcycle without a helmet, while this is an inadvisable practice with the potential for a high-risk of harm if an accident were to occur, the Board does not find this to be of equivalent severity as persistent suicidal risk, or danger of hurting oneself, or grossly inappropriate behavior as contemplated by the criteria for a 100 percent rating as a symptom of mental disorder. At the time of examination, the Veteran’s thought processes and communication were coherent, focused, and organized. He denied obsessive thoughts that interfere with his functioning. He had some mild distractibility and concentration problems, but his attention was intact overall. His appetite was within normal limits and his insight and judgement were intact. Overall, the examining psychologist found the Veteran’s psychological level of impairment was best summarized by “occupational and social impairment with reduced reliability and productivity.” During the examination, the Veteran described the significant stress of dealing with his wife’s Stage 4 lung cancer, diagnosed since his last PTSD examination. He also described ongoing discord with his brother over the brother’s behavior since the death of their mother 4 years prior. The Veteran stated they “almost got into a physical fight.” The Veteran described his frustration with this loss of independence and that the frustration makes him “quick tempered.” The Veteran had purchased a riding lawn mower though, and hoped it would allow him to continue cutting his own grass. He reported still enjoying driving his boat and being with a small number of remaining friends. He described enjoying playing cards and doing puzzles, but that he often lacked motivation for more. The Veteran was not receiving mental health treatment and was not taking any psychotropic medication. He had experienced no legal problems. The symptoms endorsed were depressed mood, anxiety, suspiciousness, near-continuous depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and impaired impulse control such as unprovoked irritability with periods of violence. A rating in excess of 70 percent is not warranted from December 13, 2012 to July 18, 2013 as the Veteran is not shown to have gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform activities of daily living such as maintenance of minimal personal hygiene, disorientation to time or place, or memory loss of close relatives, his own occupation, or his own name, nor symptoms of comparable severity. Prior to December 13, 2012, a rating greater than 50 percent for PTSD is denied. The evidence shows that for this period, the Veteran's service-connected PTSD was primarily manifested by symptoms of flattened effect, persistent irritability, chronic sleep impairment including nightmares, suspiciousness, intrusive memories or flashbacks, mild difficulty in understanding and following instructions, mild memory loss such as forgetting the names of fellow soldiers he served with decades prior, difficulty concentrating, disturbances of motivation, depressed mood, angry outbursts without resorting to violence, difficulty in establishing and maintaining effective work and social relationships. See Board hearing transcript, March 2017 (describing symptoms experienced earlier); VA examination, July 2009; VA treatment records, March 2009 – December 2012. The July 2009 VA examiner documented that the Veteran had no history of mental health treatment and was taking no psychiatric medications. The Veteran reported symptoms of only sleeping about 4 to 5 hours per night with disturbing dreams occurring about once a week, often of Vietnam combat. The Veteran described himself as quick tempered with little patience. Certain noises, especially helicopters, reminded him of his time in combat, and he was startled easily by unexpected fireworks. The Veteran avoided watching war-related television, avoided crowds, spent much time at home, and had difficulty in public spaces generally not able to sit with his back toward the door. At the time, the Veteran lived with his wife of 37 years, and his two adult children. He described riding his motorcycle, playing videogames, and going fishing on his boat. The Veteran was casually dressed, alert, cooperative, and showed good eye contact during the examination. He was oriented to time, place, and person. His affect was mood congruent and he was moderately anxious but cooperative. The examiner noted the Veteran was not suicidal or homicidal at the time of examination. His thought process was goal oriented and had no derailment, loose or clanging associations, thought blocking, or neologisms. The examiner noted that in July 2009 the Veteran was strongly endorsing a number of symptoms that he had previously expressly denied at PTSD screening in November 2008, and found “the degree of distress of his symptoms appears to be significantly exaggerated on the test which he completed today.” Examples were given that the Veteran scored high on the Beck Depression Inventory and Beck Anxiety Index, scores which would be indicative or typical of someone with severe depression and disabling anxiety, but in the examiner’s opinion the Veteran did not demonstrate symptoms of this severity. The examiner noted that the Veteran had functioned reasonably well based on generally consistent employment since service, long-term marriage to the same spouse, and no significant problems with employers or conflicts with friends. The Veteran described that he got along well with people, but preferred to stay by himself much of the time, although he could work well in small groups of 2 to 3 people. The examining psychologist described the effect of the Veteran’s PTSD symptoms on his life as “moderate.” VA examination, July 2009. The Board does not find that the symptoms described by the Veteran or by the medical evidence prior to December 2012 more nearly approximates the criteria for the next higher rating at 70 percent. Although there are deficiencies in many areas shown, the severity of symptoms is not consistent with obsessional ritual which interfere with routine activities, illogical, obscure or irrelevant speech, near-continuous depression, impaired impulse control, spatial disorientation, inability to maintain effective relationships, or symptoms of similar severity and duration. Instead, the Veteran describes the ability to work during this period without difficulty on the job, maintaining friendships with a limited number of friends and family members, the ability to control negative impulses such as experiencing road rage without resorting to violence. Overall, the Board finds that the symptoms endorsed by the Veteran prior to the December 2012 examination are not more nearly approximated by the criteria for a 70 percent rating. As such, the 50 percent rating is appropriate for this period. 38 C.F.R. § 4.7. TDIU The Veteran reports becoming too disabled to work in April 2011. TDIU applications, October 2018 & April 2011. The December 2012 examiner recorded the Veteran’s recent retirement from his job as a tractor operator for VA after he was required to use oxygen constantly to treat his nonservice-connected chronic obstructive pulmonary disease (COPD). The examiner documented that the Veteran’s social life and functioning at home had also been drastically compromised by his COPD, noting that because he had to carry an oxygen tank with him always, many of the things he liked to do at home were no longer possible. The examiner documented that prior to the Veteran becoming unable to work due to a policy forbidding tractor operators to drive while using oxygen, the Veteran had enjoyed his position and had not experienced problems on the job. Although light duty positions were sought for the Veteran at the time, none were found that were appropriate. Notably, neither the Veteran nor the examiner explicitly cited problems with PTSD as the reason the Veteran left work. The Veteran did describe that working triggered his PTSD symptoms somewhat stating, “[working there] has made it harder to get by. My mind keeps going back to sights and sounds of a time I would like to forget.” VA examination, December 2012. However, some degree of occupational impairment is inherent in the contemplated rating established. Instead, the question at present is whether the Veteran’s PTSD alone rendered him unable to secure or follow a substantially gainful occupation prior to July 18, 2013. The Board finds that the weight of the evidence demonstrates that the Veteran’s service-connected PTSD did not rendered him unable to secure or follow substantially gainful employment prior to July 18, 2013. The Veteran did not assert that he was unable to work due to his PTSD or any psychological symptoms during the period on appeal. Instead, he described enjoying his job overall. In fact, when expressly filing a claim for TDIU in April 2011, a time when service connection for PTSD was in effect, the Veteran was asked to identify what service-connected disability prevented him from securing or following a substantially gainful occupation and the Veteran responded only “Ischemic Heart Disease/Respiratory.” Although the Veteran’s attorney has now raised the matter of TDIU for the purposes of this claim, the Board finds it informative that at the time the Veteran last left full-time employment in April 2011, when filing a contemporaneous claim for TDIU benefits the same month, the Veteran did not identify his PTSD, or any symptoms thereof, as a reason for his claimed unemployability. Furthermore, the medical evidence does not reflect total occupational impairment, or that the symptoms of the Veteran’s PTSD render him unable to secure or follow substantially gainful employment during the appeals period before the Board. See VA opinion, December 2012. The Veteran’s abilities to understand and follow instructions, retain instructions, as well as sustain concentration to perform simple tasks are considered only mildly impaired. His ability to sustain concentration to task persistence and pace, and impulse control in the workplace are considered moderately impaired. His abilities to respond appropriately to coworkers, supervisors, or the public, respond appropriately to changes in the work setting, and be flexible in the workplace are considered markedly impaired. VA psychologist’s opinion, December 2012. However, such impairments are inherent in the relatively high rating already established for the Veteran’s service-connected PTSD, which are expressly based in part upon the Veteran’s difficulty in maintaining work relationships, difficulty in adapting in worklike settings, and experiencing occupational impairments including reduced reliability and productivity and other occupational deficiencies. Although the Veteran submitted a September 2018 “Employability Evaluation” reporting that the Veteran is no longer able to secure and follow substantially gainful employment, the vocational counselor compiling the report found that this was due to a combination of symptoms from his service-connected coronary artery disease, diabetes mellitus and PTSD. The Board does not address the implications of the Veteran’s physical disabilities here, as those ratings are not currently before the Board. Moreover, the opining vocational counselor states the Veteran “suffered with symptoms from service-connected post-traumatic stress disorder since discharge but managed to work around them.” She states that by 2011 he decided to leave his job due to his nonservice-connected COPD, but that his coronary artery disease and PTSD made performing his job very difficult. The Board does not dispute that the Veteran’s PTSD has a impact on his life, and presents a significant occupational impairment. However, as previously stated, occupational impairment is contemplated by the disability ratings in effect. The evidence does not reflect that the Veteran’s PTSD alone has rendered him unable to secure or follow substantially gainful employment, and that if such an inability exists it is largely based on the Veteran’s physical impairments as the Veteran himself has also asserted. See TDIU applications; Employability Evaluation, September 2018. While the Veteran has recently filed a claim of TDIU including as a result of his service-connected physical impairments, that is not the appeal presently before the Board, and the Board only has jurisdiction to decide the claim for an increased rating for PTSD now. A preponderance of the evidence weighs against the claim that the Veteran, by reason of his service-connected PTSD alone, is precluded from obtaining or maintaining substantially gainful employment. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald