Citation Nr: 18156518 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 11-24 335 DATE: December 10, 2018 ORDER Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an earlier effective date than May 28, 2009, for the grant of a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD is not manifested by greater than an occupational and social impairment with reduced reliability and productivity. 2. During the time period prior to May 28, 2009 and further immediately subsequent to the February 2008 Board decision that adjudicated the last pending claim on appeal for any increased rating of a service-connected disability, the Veteran was remained capable of substantially gainful employment notwithstanding the service-connected disabilities he had. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10; 4.130, Diagnostic Code 9411 (2018). 2. The criteria have not been met for an earlier effective date than May 28, 2009 for the grant of a TDIU. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.3, 4.10, 4.15, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to April 1969. The present matter on appeal for increased rating for PTSD, stems from an original claim filed on December 15, 2008. Prior to that there was an earlier appeal for increase in rating for the same condition, decided pursuant to a February 2008 Board decision, then granting a 50 percent rating. A March 2008 Regional Office (RO) rating decision implemented that decision awarding the 50 percent effective September 22, 2003. The issue now is a higher rating than 50 percent. As another preliminary concern, there was also a TDIU claim pending on appeal. By a May 2016 rating decision, the RO granted a TDIU, effective March 23, 2016. By a September 2018 rating decision, the RO granted an earlier effective date of May 28, 2009 with regard to the TDIU. There remains the consideration of entitlement to a TDIU over the preceding year, for the relevant timeframe since the February 2008 Board decision was issued. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, 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. PTSD is rated at 38 C.F.R. § 4.130, Diagnostic Code 9411 under VA’s General Rating Formula for Mental Disorders. 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-term 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 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; obsessed 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 of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. The symptoms listed above are just examples of degree of impairment, and consideration also must be given to factors outside the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran has been diagnosed with depression as well as PTSD. The evidence shows that it is not entirely possible to differentiate which symptoms are attributed to which disorder. Therefore they will all be assumed to be part of his service-connected PTSD. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Reviewing the record for the time period in question, at a VA examination March 2009, the Veteran indicated having received antidepressant medication on an ongoing basis. He was now receiving that medication with good effectiveness and no stated side effects. The Veteran reported fluctuating depressive symptoms. He partially attributed his depressed mood to physical health problems and frequent medical visits. Appetite was described as fine. He reported a weight increase of 10 pounds in the past few months. No current or historical suicidal ideation, intent, or plan. Depressive symptoms were mild/moderate, intermittent, and fluctuating in severity over time, especially since onset of health problems. The Veteran described having been married for 41 years, stating that the relationship had its “ups and downs” but had lasted that period of time. He had grandchildren and occasionally they would stay with him. The Veteran stated he liked to sit at home or get out and ride around by himself. He had an interest in old cars. There was no history of suicide attempts. No history of violence or assaultiveness. It was indicated that the Veteran was moderately impaired with regard to psychosocial functioning. He indicated that alcohol use fluctuated, he would drink 6-8 beers at one sitting, denied specific problematic effects, and stated sometimes he would drink alone when feeling depressed. On mental status exam his general appearance was clean, neatly groomed, appropriately dressed, casually dressed. Psychomotor activity was unremarkable. Speech was unremarkable. His attitude toward the examiner was cooperative, friendly, attentive. His affect was normal. His mood was anxious and dysphoric. His attention was intact. He was well-oriented. Thought process and thought content was unremarkable. There were no delusions or hallucinations. As far as judgment the Veteran understood the outcome of his behavior. As far as insight the Veteran understood that he had a problem. The Veteran had sleep impairment. He reported difficulty with sleep onset and maintenance 2-3 times per week. He stated he woke up in sweats, “clawed” his face, and reported he bruised himself when he fell out of bed. He reported he felt tired during the day. There was no inappropriate behavior, or obsessive/ritualistic behavior. He had panic attacks, reporting having them in group settings. He stated he started feeling nervous and jittery, 10-15 minutes at a time. He was unable to indicate frequency of attacks. There were no present homicidal or suicidal thoughts. Extent of impulse control was fair. There were no episodes of violence. He stated he may engage in verbal altercations but generally walked away from things that frustrated him. There was ability to maintain minimum personal hygiene. There was no problem with activities of daily living. Memory was indicated to have been normal for remote, recent, and immediate events. As regarding symptoms specifically from the Veteran’s service-connected PTSD, the Veteran had recurrent and intrusive distressing recollections of events from service, physiological reactivity, efforts to avoid reminders from service, feelings of detachment and estrangement from others, difficulty falling or staying asleep, irritability or outbursts of anger, hypervigilance, exaggerated startle response. The Veteran reported that he had nightmares twice a week. He stated that he did not like crowds. He continued to note irritability with family and friends. He indicated that symptoms had persisted over time at the same intensity. Symptoms were mild/moderate, chronic, and ongoing since service. The Veteran was considered wholly capable of handling his own financial affairs. The diagnosis given was PTSD, chronic; depressive disorder, not otherwise specified (NOS). The primary symptoms from PTSD were arousal, avoidance, and re-experiencing. Those from depressive disorder were depressed mood, increased weight. Depressive symptoms were considered to be largely related to physical health problems and psychosocial stressors but might have been partially related to PTSD. As it is not possible to determine with certainty that the depressive symptoms were not due to PTSD, the Board assumes they are part of his PTSD. Otherwise, the Veteran continued to report having had irritability, social withdrawal, and sleep disruption persisting since the last evaluation. He also noted an exacerbation of depression, especially with regards to physical health problems and psychosocial stressors. Psychosocial functioning impairment was partially attributable to PTSD. Prognosis was fair. The general level of impairment due to PTSD was indicated as being: occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning (routine behavior, self-care, and conversation normal). The September 2011 correspondence from a private physician indicates that he had been the Veteran’s physician for 35 years. The Veteran had suffered from PTSD the entire time he had known him. According to the physician, it had gotten progressively worse over the years. He had been unable to work for the past several years due to his PTSD. The Veteran had become progressively more withdrawn suffering from agoraphobia, anxiety, nightmares, insomnia and depression. In addition to that he had become very hostile and angry with coworkers to the point that he had to take early retirement. Recently, the Veteran had continued to deteriorate with PTSD and had started to become angry with his family. It was indicated, the Veteran had reached the point now where he had gone into therapy for his insomnia, anxiety, nightmares and depression which had become progressively worse. He was now on medication for those issues. According to the physician, the Veteran was not in any condition for gainful employment. The treatment provider indicated that he could not imagine any employer keeping him on the payroll once realizing the Veteran’s anger issues. There is further obtained the February 2013 letter from a VA clinical social worker. According to the treatment provider, the Veteran had numerous medical and mental health problems that inhibited his ability work. The Veteran had been treated at the Jasper CBOC facility since November 2010. His diagnoses included posttraumatic stress disorder (PTSD) and depressive disorder NOS. He was receiving medications to decrease the symptoms of these disorders. He was also receiving psychotherapy to improve his functioning. According to the social worker providing the statement, the Veteran’s symptoms included feeling depressed, irritability, hopelessness, avoidance of people and crowds, a sense of shortened future and thoughts of death. He lived mostly isolated, and avoided crowds and most military reminders. He had difficulty trusting individuals, concentrating on his work and was easily distracted. He continued to have nightmares and intrusive thoughts / images. It was further notated that he consistently scored on psychometric testing to have had results indicative of PTSD. According to the Veteran these symptoms were related to traumatic events experienced in the military. It had been evident that PTSD symptoms had affected his relationship with his wife, they had participated in numerous sessions of marriage counseling. The Veteran’s prognosis was considered guarded at this time. The Veteran’s Global Assessment of Functioning (GAF) was usually around the 53 score, which was indicative of moderate symptoms. It should be noted that he had numerous medical problems which interfered with his ability to work also. He would need continual medication management and psychotherapy, to maintain his current level of functioning. On VA re-examination March 2016, the diagnoses indicated at outset were PTSD and unspecified depressive disorder. Also indicated were chronic medical problems. The Veteran had more than one mental disorder diagnosed, as indicated. The symptoms attributable to the Veteran’s PTSD were notated as having been re-experiencing events from service, avoidance, negative alterations in cognitions and mood, hyperarousal. Those symptoms attributable to unspecified depressive disorder consisted depressed mood, anergia. There was considerable overlap in symptoms of PTSD and depressive disorder including sleep disturbance, irritability / anger, detachment / social isolation, decreased attention / concentration, decreased participating in activities. The overall level of impairment was indicated to have been social and occupational impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner indicated he was unable to separate impairment related to each condition without resorting to mere speculation. Thus, all the symptoms will be considered to be part of his PTSD. Mittleider 11 Vet. App. 181. As to relevant social and family history, the Veteran stated he had been married for 48 years and described the marriage as “average.” He noted having a short temper. He noted that his wife could get on his nerves at times. The Veteran’s spouse had a tendency to say out loud whatever she was thinking. The Veteran’s spouse ran a hair salon so she was gone a lot during the day. The Veteran was home alone. His grandsons would come visit sometimes. They would plan outdoor activities. The Veteran stated sometimes there would be some minor stated conflict in the family if and when they did not listen. The Veteran had a good relationship with other family members. He had limited social relationships. He observed that he usually watched TV if he was not doing something with his grandchildren. As for occupational and educational history, the Veteran worked 31 years for a power company, and stopped working at age 55 due to some medical reasons and resulting safety considerations on the job he indicated. He was awarded Social Security Administration (SSA) disability benefits about two years later. He had no disciplinary problems when working. Towards the conclusion of that employment he had a difficult time sitting for long periods which he related to nervousness / anxiety. The Veteran said he was seen periodically for VA outpatient treatment and was on a medication. There were no psychiatric hospitalizations since the last examination. There was nothing indicating a suicidal intent. For relevant substance abuse history, he drank beer occasionally and he denied illegal drug use. The symptoms attributable to PTSD and consistent with the diagnostic criteria were recurrent distressing memories, recurrent dreams, marked physiological reactions to events from service, diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outburst, exaggerated startle response, sleep disturbance. The PTSD symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functioning. The disturbance was not attributable to the physiological effects of a substance or another medical condition. The notated objective symptoms were depressed mood, anxiety, chronic sleep impairment. Behavioral observations were that appearance was neatly dressed with good grooming and hygiene. Psychomotor activity was unremarkable. There was cooperative manner, cognitive alert and oriented status, speech clear and coherent, mood “ok” (this was stated to mean no anger that day), affect full and mildly anxious, sleep usually alright and able to initiate but had trouble with maintenance and also having had some nightmares, energy variable but not as active as he used to be, appetite sporadic, suicidal and homicidal ideation denied, thought process logical and organized, thought content relevant and non-psychotic, attention and concentration adequate, and judgment and insight average. The Veteran reported symptoms of PTSD and depression. Symptoms appeared stable and mild in severity. He noted having panic attacks but these seemed more consistent with anger / irritability. There were no hallucinations. He noted his biggest issues were not sleeping in the same bed as his wife and getting irritated at his grandchildren. On the exam the Veteran had attention and concentration capacities that seemed adequate. There were no other indicated symptoms attributable to PTSD that were not already listed. The Veteran was capable of managing his financial affairs. Having reviewed the foregoing, the Board finds that there is not a competent basis within evidentiary findings to warrant higher than 50 percent for service-connected PTSD. The evidence effectively is not consistent with a 70 percent rating, or higher. The full range of symptomatology has been duly considered, but those signs and manifestations of service-connected disability do not warrant increased level of compensation. What is generally evidenced is that in most areas of functioning the Veteran retained substantial if not most of the typical capacity. He had extensive favorable familial relationships with his spouse, siblings, son, and grandchildren, outside interests in activities, no demonstrable or reported signs of speech or thought impairment, and he did not have a deficiency in judgment. Although his familial relationships were sometimes strained due to his PTSD, they were overall described as positive. He did not have an inability to establish and maintain effective relationships. Although the 70 percent rating criteria contemplate deficiencies in “most areas,” including work, school, family relations, judgment, thinking, or mood, such deficiencies must be “due to” the symptoms listed for that rating level, “or others of similar severity, frequency, and duration.” Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). That is, simply because this Veteran has depressed and/or anxious mood, and because the 70 percent level contemplates a deficiency in “mood” among other areas, does not mean his PTSD rises to the 70 percent level. Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. Id. Here, the Veteran’s depressed mood is expressly contemplated by the 50 percent criteria, which contemplates “disturbances” in mood. 38 C.F.R. § 4.130. His mood disturbances are not frequent or severe enough to meet the 70 percent criteria. Notably they were described as mild and stable by the March 2016 VA examiner. Additionally his mood disturbances were not of the severity needed to impact his ability to function. The Veteran is adequately compensated for that impairment. Additionally, the Veteran does not have symptoms such as or similar to suicidal ideation, deficiencies of speech, or impaired impulse control. He had some anger, and irritability, but it not of the frequency, severity, or duration needed to be more accurately described as impaired impulse control. Significantly, the VA examiners did not find impaired impulse control. The Veteran routinely has hypervigilance, exaggerated startle response, and recollection of several events from service. He did have intermittent treatment history and had gone on a medication course. As the rating criteria for psychiatric disorders contemplate the use of medication, the Board may consider the ameliorative impacts of medication as part of its adjudication. Jones v. Shinseki, 26 Vet. App. 56 (2012) There are no additional symptoms of similar severity, frequency, or duration to more nearly approximate a 70 percent rating by means of showing that there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Accordingly, the criteria for an evaluation in excess of 50 percent for PTSD are not met. The preponderance of the evidence is unfavorable, and under these circumstances the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). See 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an earlier effective date than May 28, 2009, for the grant of a TDIU is remanded. Increased disability compensation is awarded effective the date the claim was received, or when entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2018). Compensation can be awarded earlier than the date of claim, up to one-year beforehand, if evidence requires. 38 C.F.R. § 3.400(o)(2) (2018); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). The Board denied a TDIU in a February 2008 decision that was not appealed. The Veteran filed a new TDIU claim on December 15, 2008. The timeframe the Board is considering begins February 27, 2008, the day after the final Board decision on February 26, 2008, but no earlier. This is because the Board’s denial controls for the portion of the one year look-back period from December 15, 2007 to February 26, 2008. A TDIU claim is a claim for increased compensation, and so the above provisions apply to it. See Hurd v. West, 13 Vet. App. 449 (2000). Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the individual is unable to secure and maintain substantially gainful employment because of the severity of her service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). Prior to May 28, 2009, the criteria were not met. Provided a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extraschedular basis under § 4.16(b) if it is established he is indeed unemployable on account of service-connected disabilities. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Director of the Compensation Service. 38 C.F.R. § 4.16(b) (2018). The report of a March 2009 VA examination for evaluation of the Veteran’s service-connected PTSD, resulted in the finding that there specifically was not “total occupational and social impairment due to PTSD” and the conclusion was, more so that there was an occasional decrease in work efficiency due to intermittent issues with PTSD. The evidence of record does not describe the functional impact of the Veteran’s ischemic heart disease until 2016. However, the Social Security Administration (SSA) found the Veteran disabled due to his anxiety disorder and heart disease in February 2002. While SSA records are not controlling for VA determinations, they may be “pertinent” to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Given that in this case SSA addressed the specific question now before the Board (i.e., the earliest date at which the Veteran was too disabled to work), the Board finds the SSA determination to be probative although not necessarily dispositive. This matter is REMANDED for the following action: 1. Refer the Veteran’s TDIU claim to the Director of the Compensation Service for extraschedular consideration for the period from February 27, 2008 to May 27, 2009. 2. Then, readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons