Citation Nr: 18156284 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 06-23 731 DATE: December 11, 2018 ORDER Entitlement to an initial disability rating for posttraumatic stress disorder (PTSD) of 50 percent, but no more, is granted from the period from July 9, 2004 to July 24, 2010. Entitlement to a rating in excess of 70 percent for PTSD from July 24, 2010 until the Veteran’s death is denied. FINDINGS OF FACT 1. Prior to July 2010, the Veteran’s PTSD was shown to be productive of occupational and social impairment with reduced reliability and productivity, but without significant impairment in most areas. 2. From July 2010, the Veteran’s PTSD is not shown to have resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 50 percent, but no more, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.17, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an increased rating for PTSD in excess of 70 percent for the period from July 24, 2010 are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.14, 4.17, 4.59, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1964 to March 1974. He died in September 2012. See Death Certificate. The appellant is his surviving spouse. The Agency of Original Jurisdiction (AOJ) granted her request for substitution for the purpose of this appeal in March 2018. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of the VA Regional Office (RO) in Winston-Salem, North Carolina. This matter was previously remanded by the Board for additional development in August 2012. It has been returned to and is now before the Board again. Before the Veteran’s death, he appointed a national veterans service organization as his representative with regard to this appeal. See VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative received in May 2006. However, after his death, his wife was substituted as the appellant, and she appointed the above-mentioned state service organization as her representative. See VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative received in November 2012. Increased Rating 1. Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9411. The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 50 percent - 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. 70 percent - 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 worklike setting); inability to establish and maintain effective relationships. 100 Percent - 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign a rating 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). When determining the appropriate disability rating to assign, the Board of Veterans’ Appeals (Board) primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 2. Entitlement to an initial evaluation for PTSD in excess of 30 percent Service connection is in effect for PTSD, with a disability rating of 30 percent from July 2004 to July 2010 under 38 C.F.R. § 4.130, DC 9411. There is evidence to suggest that a rating of 50 percent is warranted for this period. During the Veteran’s June 2005 VA examination for PTSD, the examiner noted that while the Veteran denied visual and auditory hallucinations, the Veteran reported that his home was possessed and that the Veteran believed he could communicate with spirits. According to the examiner, the Veteran suffered from “quite severe suspiciousness[.]” The Veteran’s mood was described as labile, but the Veteran also reported depression, emotional numbness, and feeling distant from others. The examiner reported that the Veteran had difficulty falling asleep and only slept 3 to 4 hours a night. Lastly, while the Veteran reported no active suicidal plans at the time, the Veteran also stated that he had suffered from nightmares, flashbacks, and chronic thoughts of suicide since returning from Vietnam. In the Veteran’s post-service VA treatment records, the Veteran’s affect was described as mildly depressed in April 2005. In February 2005, the Veteran’s VA treatment records were positive for PTSD, suicidal ideation, hallucinations, and a history of psychiatric care, though no specific details are included. In the Veteran’s June 2007 lay statement, he alleged that he suffered from panic attacks 3 to 4 times per week, anxiety, and anger that caused issues with his ability to focus or concentrate. The Veteran also reported keeping to himself, having no friends, and avoiding social and family gatherings. The Veteran’s also submitted a lay statement by his wife in August 2006. The Veteran’s wife described the Veteran as prone to go into rages and constantly angry, and stated that his behavior scared and embarrassed her. Additionally, his hygiene had worsened, and he experienced memory problems. Upon consideration of the record, the Board finds that a disability rating of 50 percent is warranted for the period from July 9, 2004 to July 24, 2010. At all points during the pendency of the appeal, the Veteran reported experiencing difficulty sleeping, difficulty establishing and maintaining social relationships, general depression, feeling emotionally numb and distant from others, hypervigilance, and anger issues. However, he also maintained a relationship with his wife, and attended individual and group therapy sessions for PTSD. The Board thus finds that the Veteran demonstrated the flattened affect, depression, and difficulty in establishing and maintaining effective work and social relationships which characterize the 50 percent evaluation prior to July 2010. With that being said, the Board does not find that the Veteran exhibited the degree of impairment necessary to warrant a 70 percent evaluation prior to July 24, 2010. While the Veteran did report his home being possessed and the ability to communicate with spirits, which may have potentially been indicative of auditory or visual hallucinations, he never reported persistent hallucinations. Additionally, although he did report suicidal ideation since returning from Vietnam, there is no indication that suicidal ideation was of such persistence during this period as to support a 70 percent evaluation in and of itself. Furthermore, while his hygiene was sometimes concerning, it was not noted to be a persistent issue. Finally, while the Veteran consistently reported depression and periods of panic, these were not near-continuous, and there is no evidence they affected the Veteran’s ability to function independently. Accordingly, the Board finds that a 70 percent rating is not warranted for PTSD prior to July 24, 2010. 38 C.F.R. § 4.7. 3. Entitlement to a rating in excess of 70 percent for PTSD from July 24, 2010 until his death The Veteran was evaluated at the 70 percent rate for PTSD from July 24, 2010 until his death under 38 C.F.R. § 4.130, DC 9411. There is no evidence to suggest that a rating in excess of 70 percent is warranted for this period. During the Veteran’s July 2010 VA examination for PTSD, the examiner noted that the Veteran suffered from poor relationships with his immediate family, a history of suicidal ideation, panic attacks, severe depression and anxiety, and auditory and visual hallucinations. The examiner also stated that the Veteran reported pointing a gun at his brother and firing a round off. However, the examiner did not find that the Veteran reported gross impairment of thought processes, current suicidal or homicidal plans, intermittent inability to perform activities of daily living, or symptoms consistent with total occupational and social impairment. To the extent that the Veteran had social impairment, the criteria for a 70 percent rating specifically contemplates the inability to establish and maintain effective relationships. His treatment records and VA examinations have not shown symptoms contemplated by a 100 percent rating, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or the intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In rendering its decision, the Board has considered how the Veteran’s symptoms impacted his occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board has also considered the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). Consequently, the criteria for a 100 percent rating for PTSD from July 24, 2010 until the Veteran’s death were not met. In making this determination, the Board notes that neither the appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Evan Thomas Hicks