Citation Nr: 18156904 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-62 431 DATE: December 11, 2018 ORDER Entitlement to a rating higher than 30 percent for posttraumatic stress disorder (PTSD) prior to October 14, 2016 is denied. Entitlement to a 70 percent rating for PTSD from October 14, 2016 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Prior to October 14, 2016 the Veteran’s PTSD symptoms more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; there is no evidence of occupational and social impairment with reduced reliability and productivity during that period. 2. From October 14, 2016 the Veteran’s PTSD symptoms more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, family relations, thinking, and mood; there is no evidence of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 30 percent for PTSD prior to October 14, 2016 have not been met. 38 U.S.C § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411. 2. The criteria for entitlement to a 70 percent rating for PTSD from October 14, 2016 have been met. 38 U.S.C § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1969 to October 1970. A December 2015 rating decision continued a 30 percent rating for the Veteran’s PTSD. In an interim December 2016 rating decision, a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) increased the rating for PTSD to 50 percent effect October 14, 2016. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD – Prior to October 14, 2016 The criteria for evaluating PTSD, are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, Code 9411. A 30 percent evaluation 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, and mild memory loss (such as forgetting names, directions, recent events). See Id. A 50 percent evaluation is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and, memory loss for names of close relatives, own occupation, or own name. Id. In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-V). The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely based on social impairment. See 38 C.F.R. § 4.126(b). The Veteran is rated at 30 percent disabling for his service-connected PTSD. He asserts entitlement to a higher rating prior to October 14, 2016 due to worsening PTSD symptoms. After a review of the record, the Board finds that the Veteran’s psychiatric disability most nearly approximate a 30 percent rating. The evidence of record reflects that the Veteran complained of, and/or manifested symptoms, such as depressed mood, anxiety, and chronic sleep impairment. He had no other symptoms attributable to PTSD. Notwithstanding his symptoms and reported complaints that are a result of his psychiatric disability, the overall evidence of record suggests that the Veteran was generally functioning satisfactorily. For example, a May 2014 VA mental health note shows the Veteran was seen for a follow-up appointment and medication refills. On objective observation, he was neatly dressed, well-groomed and well nourished. He was alert and grossly oriented. His attention span was satisfactory. He sat calmly, talked openly and was pleasant, polite and cooperative. He made eye contact at approximately 80 percent. He had normal motor activity and normal muscle tone. He appeared to be friendly and open. His affect was congruent; his mood was depressed. His speech was a normal rate, rhythm, tone and volume. There were no barriers to communication. His thought processes were logical and blocking. He had no obvious or observed response to internal stimuli. There were no reported hallucinations or delusions, suicidal ideas, intents or plans, and no thought of violence to others. His insight and judgment were intact. There were no gross deficits in memory. Moreover, behavioral observations during the May 2015 VA PTSD examination revealed he was dressed casually; he was forthright, respectful and cooperative. He made adequate to good eye contact. His mood was slightly depressed. His range of affect was full in range and congruent to mood. He demonstrated adequate attention and concentration throughout the interview. No gross cognitive impairments were noted except for 1/3 on a short-term memory recall task. He denied current suicidal thinking, intent, or plan. He was not considered to be a current imminent risk for self-harm or suicidality. He could manage his financial affairs. The examiner noted that the Veteran’s PTSD diagnosis is the same service-connected diagnosis from his previous evaluation in 2010. He continued to report depressive and anxiety related symptoms associated with PTSD and his stressor or event, including military sexual trauma. He remains consistently on psychotropic medication treatment for such symptoms since his last evaluation in 2010. The May 2014 VA mental health note and the May 2015 VA examination report reflects that the functional impact of the Veteran’s mental diagnoses could be best summarized as an occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. However, based on the overall medical evidence of record, the Board finds that the Veteran’s disability picture is more reflective of an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, based on the frequency and duration of the symptoms and complaints identified above. Summarily, the May 2015 VA examiner found that the Veteran’s PTSD symptoms for the period prior to October 2014 approximated 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 medication. The examiner also found essentially that the Veteran’s psychiatric disability had not improved or worsened since the last examination in 2010 including the period prior to October 14, 2016. As such, a rating of 50 percent or higher is not warranted because there is no evidence of record to show that the Veteran manifested symptoms, such 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; impaired judgment; or impaired abstract thinking. Moreover, it was noted in the May 2015 VA examination report that the Veteran first began to experience suicidal ideations while he was in the service, but never made any attempt or developed a concrete plan to try. He denied suicidal intent or hospitalizations for suicidality. Finally, for the period prior to October 14, 2016, there is no evidence that shows that the Veteran has had difficulty with establishing and maintaining effective work and social relationships. As a matter of fact, to the contrary, the May 2014 VA mental health note shows the Veteran were married for 45 years and he and his wife “get along pretty good.” During the May 2015 VA examination, he described having approximately five close friends. Regarding his occupational history, he retired in 2003 due to the onset of Alzheimer’s symptoms. Shortly thereafter he began a retail business selling products like metal replica cars, which he continues. These examples suggest the Veteran appear to have a functional relationship with others at that time. Therefore, a rating higher than 30 percent is not warranted for the Veteran’s service-connected PTSD prior to October 14, 2016. PTSD - From October 14, 2016 The Veteran is currently rated 50 percent for PTSD under Code 9411 from October 14, 2016. The evidence of record for the period under consideration suggest a higher rating of 70 percent is warranted. During the October 2016 VA PTSD examination, the Veteran essentially reported social isolation. He spends days in his room. He denied any engagement in hobbies, special interests, or social activities. His wife reported that she is with him “24/7” to help with daily living activities. He stated he has not worked since 2003 and is not looking for work. In a December 2016 VA mental health clinic note, it was reported the Veteran reported with depressed mood. It was noted he had passive suicidal ideations and had last felt that way a few weeks earlier; he denied intent or plan to harm himself. Based on the symptoms shown during the October 2016 VA examination and in the December 2016 VA clinical treatment records, when affording the Veteran the benefit-of-the-doubt the Board finds this evidence to be more clinically characteristic of the criteria for a 70 percent rating for the period from October 14, 2016 under Code 9411, and such rating is warranted from October 14, 2016. 38 C.F.R. § 4.7. However, there is no support in the record for a 100 percent rating. The Veteran has not been shown to have 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. Accordingly, the Board finds that the evidence supports a 70 percent evaluation for PTSD, though not higher, for the period from October 14, 2016. In this case, neither the Veteran nor his 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). REASONS FOR REMAND According to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), a TDIU claim is part of an increased rating claim when such claim is raised by the record. At the May 2015 VA PTSD examination, the Veteran reported that he retired officially in 2003 because of the onset of Alzheimer’s symptoms and that shortly thereafter he began a business selling retail products, which was still in effect at the time of that examination. In 2016 he stated he was not looking for work. Nonetheless, it does not appear that the Veteran has been afforded written notice of the information necessary to substantiate a TDIU claim. For the Veteran’s TDIU claim to be fully and fairly adjudicated, it is necessary so that he can provide the information necessary to substantiate the claim. The matter is REMANDED for the following action: Send the Veteran the proper 38 C.F.R. § 3.159(b) notice that advises him about what is needed to substantiate a claim for a TDIU, prior to adjudication in a Supplemental Statement of the Case (as the claim is already on appeal, per Rice). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Young, Counsel