Citation Nr: 18155798 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 10-37 295 DATE: December 6, 2018 ORDER An increased evaluation of 70 percent for posttraumatic stress disorder (PTSD) from July 31, 2009, to March 12, 2010, is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s PTSD manifested with symptoms most closely analogous to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but did not rise to the level of a total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation of 70 percent for PTSD, but no higher, 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 December 1965 to September 1967. In May 2017, the Court of Appeals for Veterans Claims (Court) vacated the September 2016 Board decision to the extent that it denied entitlement to a disability evaluation in excess of 50 percent for the period from July 31, 2009, to March 12, 2010. The narrow issue was remanded for readjudication consistent with the Court’s Joint Motion for Partial Remand (JMPR). During the pendency of this appeal, the Regional Office granted entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) in a November 2018 rating decision. The Veteran previously raised entitlement to TDIU under Rice v. Shinseki, 22. Vet App. 447 (2009), and the November 2018 grant of TDIU represents a full grant of benefits sought. Accordingly, that issue is no longer on appeal. 1. The claim of entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) from July 31, 2009, to March 12, 2010 The Veteran contends that he is entitled to an evaluation in excess of 50 percent for PTSD from July 31, 2009, to March 12, 2010. 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). Id. 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. Id. 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. Id. 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. Id. 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. The Veteran submitted lay statements from family members in August 2009 that detailed his changed behavior following active duty service. The Veteran reportedly experienced significant sleep impairment upon his return from Vietnam, including frequent nightmares. He also became lightheaded and felt as though he may faint on occasion. The symptoms had become progressively worse since discharge. In October 2009, the Veteran underwent a VA examination to assess the nature and severity of his PTSD. The Veteran was previously also diagnosed with alcohol use disorder in April 2007, but in full sustained remission, though he was dependent from 1968 to 2000. The Veteran reported restarting individual therapy the week after the examination, and his medication dosage was increased a few months prior. He reported that his marital and family relationships were unchanged since the last examination in April 2007. He had one close friend who he talked to or visited with two or three times per year. The Veteran also played cards with his wife and a friend from church. He also reported spending time with a mentally handicapped man he described as akin to a son. The Veteran spent much of his time at home, going out primarily to attend church, visit his mother, and play cards with church friends. He denied a history of suicidal attempts or violence, as well as issues with alcohol or substance abuse. The Veteran reported to the examination casually and appropriately dressed, with minimum personal hygiene. He exhibited unremarkable psychomotor activity and speech. He was cooperative, friendly and attentive towards the examiner, but exhibited a constricted affect. The Veteran presented as alert and oriented in all spheres. He was somber throughout the examination with an anxious and dysphoric mood. The Veteran demonstrated attention disturbances as he was easily distracted and had a short attention span. He reported often having trouble keeping track of what he read and conversations with others as his mind frequently wandered. His thought process was unremarkable, and he reported frequently ruminating about his Vietnam experiences and “why things happened the way they did.” He did not report delusions or hallucinations. The Veteran understood the outcome of his behavior. The Veteran also reported ongoing difficulties sleeping that were unchanged from the previous 2007 examination. He slept approximately 3-4 hours of interrupted sleep each night, and awoke with worries on his mind. He described nightmares as occurring a couple of times per week that kept him from returning to sleep. The Veteran reported awakening sweating with increased heart rate and shallow breathing. He added that he often felt fatigued during the day due to his poor and fragmented sleep. The Veteran also exhibited obsessive or ritualistic behavior as he engaged in compulsive safety behaviors. The Veteran denied suicidal and homicidal ideation. The Veteran also endorsed frequent panic attacks throughout this period. The severity and frequency of these episodes remained unchanged since the 2007 examination. The Veteran learned to recognize the symptoms associated with his panic attacks, and only sought treatment at the emergency room when his blood pressure elevated and did not easily lower as the attack subsided. The Veteran additionally reported “speak[ing] his mind,” which upset others. There were no impediments to his activities of daily living. He exhibited mild impairment of the immediate memory. The Veteran experienced ongoing symptomatology associated with his PTSD, including: persistent reexperiencing of the traumatic event, avoidance of stimuli associated with the trauma, and increased arousal. Overall, the symptoms were moderate with slightly increased recollections of his traumatic experiences, slightly increased involvement in social activities, and slightly improved temperament. The Veteran remained uninterested in his previous hobbies, and exhibited restricted range of emotions, difficulty trusting others, and difficulty connecting with others or making friends. He reported a general feeling of anxiety and irritability. The Veteran’s excessive use of alcohol ended around 2000, per his report. In November 2009, VA treatment records reflect the resumption of individual therapy. The Veteran admitted that his mood was often depressed, though medication was helpful. He was alert and oriented with dysthymic mood and congruent affect. He denied suicidal and homicidal ideation. His insight and judgment were good, and he denied substance abuse and symptoms of psychosis. In March 2010, the Veteran submitted a statement reporting a worsening of his nightmares, and symptoms of reliving the war. He stated that he could not function in life the way he wanted, and his PTSD symptoms interfered with his marriage and abilities to form lasting relationships with others. In March 2010, VA treatment records reflect increased irritability and alcohol consumption. The Veteran experienced anxiety attacks, and reported seeing the people who died in Vietnam. The Veteran denied suicidal and homicidal ideation. In September 2010, the Veteran submitted a statement reporting that he experienced panic attacks daily, sometimes several per day. He expressed difficulty communicating his thoughts and feelings, and a severe restriction on his activities. He did not trust people, and drank 4-6 beers per day to help calm his anxieties. His overall symptomatology put a strain on his marriage, and he slept in a separate bedroom in order to keep from harming his wife during his nightmares. In May 2012, the Veteran reported that he had been seeing angels and streaks of light for approximately 10 years. In September 2017, the Veteran’s representative submitted a Vocational Employability Assessment that detailed his overall occupational impairment since 2007. The opinion did not specifically address the narrow period on appeal, but did indicate that he experienced moderate to severe symptoms attributable to PTSD in 2007. Specifically, his avoidance symptoms created difficulties connecting and working with others. The symptoms remained relatively consistent through to 2009. In sum, the examiner reported that it was at least as likely as not that his PTSD kept him from securing and following substantially gainful employment since 1999. In March 2018, the Board sought and obtained a new medical opinion regarding the overall severity of the Veteran’s PTSD. In sum, the examiner reported that the Veteran’s symptomatology during the period on appeal was mild to moderate. The examiner attributed many of the Veteran’s more severe symptoms, including hallucinations, to his comorbid, non-service connected conditions. Notably, the examiner also separated his alcohol use from his PTSD, and did not relate his alcohol use as secondary to PTSD. This is contrary to the April 2007 examination report that noted his alcohol use to be self-medicating after returning from Vietnam. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is entitled to a 70 percent evaluation, but no higher, for PTSD during this narrow period on appeal. The Board recognizes that the Veteran suffered from deficiencies attributable to 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. Suicidal ideation, in of itself, represents the impulse or desire to remove oneself from the world entirely. 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. 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, depression, panic attacks and irritability. He reported difficulty interacting with others, and only had a few friends, primarily from church. He lost interest in his favorite activities. The Veteran reported panic attacks almost daily, sometimes several times per day. He also reported irritability and suspiciousness that sometimes included his wife. The Veteran found great difficulty in communicating with others about his thoughts and feelings. He also endorsed seeing angels and streaks of light throughout the period on appeal. While certainly severe, 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 his grooming and hygiene throughout the period on appeal. He denied suicidal and homicidal ideation, and still engaged in a good relationship with his wife and a small number of friends. He continued attending church, finding great comfort in the activity, and played cards with a friend from church. The Veteran’s mental faculties remained intact throughout this period. In sum, the Veteran’s symptoms do not mirror the severity, frequency and duration of ones that present a total impairment in occupational and social functioning. He continues to perform the activities of daily living, and has not shown that his PTSD makes him unable to routinely and appropriately engage with the world. The Board notes that the Veteran reported seeing angels and streaks of light during this narrow period on appeal. While hallucinations are listed in the overall category for a 100 percent evaluation, the mere presence of one symptom in a category is insufficient to warrant awarding that category overall. The symptoms in each category are not meant to be exhaustive, and evaluations should be awarded based on the overall severity, frequency and impairment encapsulated in that numerical evaluation. In this case, while the Veteran may have had hallucinations, they did not cause him great distress, nor did they particularly impair his ability to function independently or interact with the world. The Veteran reported finding great comfort in believing he saw angels as it was tied to his deepening spirituality. He felt “safe” despite these visions. Accordingly, while the 100 percent evaluation notes hallucinations as one of the associated symptoms, the overall picture of the Veteran’s PTSD is more closely related to the severity represented in the 70 percent evaluation. Resolving reasonable doubt in favor of the Veteran, he is entitled to a 70 percent evaluation from July 31, 2009, to March 12, 2010. While the Veteran certainly continues to cope with serious manifestations of his PTSD, they do not rise to the level of a total occupational and social impairment as contemplated by the rating schedule. As the preponderance of the evidence of record is against an evaluation in excess of 70 percent, the rule regarding reasonable doubt is not for application in that instance. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel