Citation Nr: 18157592 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 18-07 905 DATE: December 13, 2018 ORDER Entitlement to a rating greater than 50 percent for posttraumatic stress disorder, with depressive and manic disorder (PTSD), for the period prior to April 20, 2017, is denied. Entitlement to a 70 percent rating, but no higher, for PTSD, beginning April 20, 2017, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to April 20, 2017, the Veteran’s PTSD manifested to a degree of occupational and social impairment with reduced reliability and productivity. 2. Beginning April 20, 2017, the Veteran’s PTSD manifested to a degree of occupational and social impairment causing deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. 3. The Veteran did not have total social and occupational impairment at any time during the appeal period. 4. The evidence is in equipoise as to whether the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent disabling, for PTSD, for the period prior to April 20, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for a 70 percent rating, but no higher, for PTSD, for the period beginning April 20, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2018) 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1971 to March 1974. As a threshold matter, the Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on October 21, 2018. However, the Veteran’s appeal has already been activated at the Board and is therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. Entitlement to a rating greater than 50 percent for PTSD. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2018). 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 (2018). 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 (2018). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2018); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When all 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 (2018). The Veteran’s PTSD has been evaluated as 50 percent disabling for the entire period on appeal under Diagnostic Code 9411. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). Under the General Rating Formula, a 50 percent rating is assigned when a veteran’s PTSD causes 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). A 70 percent evaluation 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). The maximum schedular rating of 100 percent is warranted when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a) (2018). The rating agency shall assign an evaluation based on all 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 an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b) (2018). Use of the term “such symptoms as” in § 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 particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and because the plain language of the regulation makes clear that “the 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. The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background Turning to the evidence of record, factual background shows that the Veteran received a VA examination in October 2015 where the Veteran reported symptoms of depressed mood, decreased interest and pleasure in activities, hypersomnia, low energy, and poor concentration. The Veteran reported that he lives with sister and they get along okay, but they have disagreements at times. He reported that he has two grown daughters who lives out of state and that he talks to each of them regularly. He calls one daughter every morning to wake her for her job. He further reported that he has regular social contact with one neighbor who comes by to visit, and that he used to get out more to play bingo, but hasn’t been able to since his neck surgery in August 2015. Occupationally, the Veteran reported that he has not been employed since 1999 due to physical injuries. On a typical day, he walks 1 to 2 blocks near his house. He reported that he used to help with cooking and cleaning, but due to his physical pain and sedating effects of his medication, he no longer has the energy. The Veteran reported that he will go to the store when he is able to get a motorized cart. With regard to treatment of his psychiatric disorder, the Veteran reported that he does not see a psychiatrist but gets mental health medications from his primary care physician (PCP). He reported that he takes trazodone for nightmares and estimates he uses it about twice a month. After examining the Veteran, the examiner diagnosed the Veteran with PTSD and major depressive disorder, mild; finding that the conditions are highly interrelated and that it would be impossible to differentiate their symptoms without resorting to speculation. The examiner noted symptoms of anxiety and suspiciousness and found that the Veteran’s condition is asymptomatic. The examiner further found that the Veteran’s symptoms cause occupational and social impairment due to mild or transient symptoms. On April 20, 2017, the Veteran presented to the VA Clinic for an unscheduled visit with a request to see mental health. He reported having symptoms of nightmares, insomnia, and mild depression, but denied suicidal/homicidal ideation. He was prescribed sertraline, trazodone, and gabapentin was increased. He was also referred for a mental health consult. In May 2017, during a PC/MH primary care case manager visit, the Veteran reported being depressed, having nightmares, that he has lost lots of friends lately, and financial stress. He further reported having night sweats, poor sleep, and chronic pain in his right leg and back, and that he takes trazodone and gabapentin at night, but the medication is not helpful. The Veteran was deemed a low risk for self-harm and his level of impairment was described as moderate. A depression screen indicated treatment was warranted using psychotherapy, an anti-depressant, or a combination of the two. The Veteran was ultimately referred to a psychiatrist. In a June 2017 mental health note, the Veteran reported experiencing nightmares and flashbacks every other night, irritability, isolation, avoidance, hypervigilance, and intrusive thoughts. He denied suicidal attempts but indicated he last thought about it two years ago with no plan. Mental status examination showed the Veteran appeared neat, speech was normal and calm, behavior was appropriate, and mood was calm. Thought process, insight, and judgment were normal, and memory was impaired. There was no evidence of hallucinations or suicidal ideation. The examiner diagnosed the Veteran with PTSD and advised the Veteran to continue taking his medications. In October 2018, the Veteran received a VA examination where the Veteran was diagnosed with PTSD and major depressive disorder, moderate. The examiner found the two diagnoses cannot be separated as they are mutually aggravating. Although the Veteran reported that he still lives with his sister, the examiner described the Veteran as having an isolative existence as most of his friends have died, and he spends the majority of his time at home. The Veteran reported that he has one friend that he visits throughout the week. He plays bingo, does occasional yard work, and maintains contact with his two daughters. The examiner noted that the Veteran complained of medical concerns including knee pain and difficulties walking. He reported problems sleeping, and that he was jumpy/anxious throughout the night. The Veteran reported occasional nightmares of the war, and that he will have panic attacks and wake up. He further avoids anything related to war or anything having to do with death. The examiner noted symptoms of irritability, hypervigilance, hyperarousal, depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner found that the Veteran’s PTSD symptoms cause occupational and social impairment with deficiencies in most areas. Analysis After thoroughly considering the above and the remaining evidence, the Board finds that staged ratings are appropriate. Specifically, the Board finds that prior to April 20, 2017, the Veteran was appropriately rated at 50 percent disabling as his symptoms ranged from mild to moderate. However, as of April 20, 2017, the evidence shows that the Veteran’s symptoms worsened and more nearly approximated the criteria for a 70 percent rating. Period prior to April 20, 2017 In support of the Board’s conclusion, the Board notes that for the period prior to April 20, 2017, the Veteran’s PTSD is best characterized as causing moderate impairment with a corresponding 50 percent rating as the Veteran’s symptoms were not of the severity, frequency, or duration that would warrant a higher rating. This finding is evidenced in the Veteran’s October 2015 examination where the Veteran reported having intrusive thoughts once a week and dreams of traumatic events twice a month. Although the Veteran reported that he avoids social interaction, the evidence shows that he maintains a relationship with his two daughters and calls one daily to wake her for her job. He has regular contact with a neighbor, typically walks 1 to 2 blocks daily near his home, and will go to the store when he has the use of a motorized cart. Additionally, despite the Veteran’s report of having diminished interest and participation in significant activities, the evidence shows that the Veteran stopped playing bingo due to his recent neck surgery, as opposed to his PTSD symptoms. The Veteran also reported symptoms of exaggerated startle response, decreased concentration, and depressed mood; however, the examiner noted that the Veteran’s symptoms appear to be elevated by his current increase in pain and decreased mobility due to his recent neck surgery. Additionally, mental status examination showed that the Veteran was fully oriented with no signs of disordered thinking. The examiner further noted that while the Veteran was previously diagnosed with panic disorder, the Veteran did not report any panic attacks and does not meet this diagnosis. In fact, the examiner found that the Veteran’s condition was asymptomatic and caused occupational and social impairment due to mild or transient symptoms which is consistent with his October 2013 examination showing the same. As noted above, the Veteran has not sought any mental health treatment other than obtaining trazodone from his PCP; therefore, the record is silent as to any other evidence during this period on appeal relative to the severity of the Veteran’s symptoms. As there is no other evidence of record to support a higher rating, the Board finds that for the period prior to April 20, 2017, the Veteran’s symptoms were characterized as mild and a rating greater than 50 percent is not warranted. A higher rating would require the Veteran to show impairment with deficiencies in most areas, or total occupational and social impairment which is not present here. Additionally, the Veteran’s symptoms were not of the severity, frequency, or duration that would warrant a higher rating. As explained above, the Veteran had intrusive thoughts once a week and dreams twice a month. He maintained social contact, and his symptoms were exacerbated by his physical condition, including his ability to work. Moreover, the examiner found occupational and social impairment due to mild or transient symptoms. As there is no evidence to support a higher rating, the Veteran’s claim for a rating greater than 50 percent for the period prior to April 20, 2017 is denied. Period beginning April 20, 2017 Alternatively, as of April 20, 2017, the Veteran is entitled to a 70 percent rating, but no higher, as the Veteran’s symptoms worsened causing deficiencies in most areas, but not total social and occupational impairment. In support thereof, the Board notes the Veteran’s October 2018 examination in which the examiner found symptoms of irritability, hypervigilance, and hyperarousal. The examiner further noted symptoms of depressed mood, anxiety, suspiciousness, sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. Unlike the previous period, the Veteran reported having panic attacks. Additionally, while the Veteran continued to live with his sister and maintain contact with his daughters, the examiner described the Veteran has having an isolative existence, concluding that the Veteran’s PTSD symptoms cause occupational and social impairment with deficiencies in most areas. Although this examination clearly show the Veteran’s PTSD symptoms increased in severity, the Veteran’s symptoms appeared to show evidence of worsening as early as April 20, 2017. As noted previously, during this unscheduled visit with his PCP, the Veteran requested to see mental health. The physician also prescribed the Veteran sertraline, in addition to trazodone that he was already taking. Although the Veteran’s level of impairment was described as moderate in a subsequent May 2017 case manager visit, the Veteran’s depression screen yielded a result warranting further treatment. Moreover, a June 28, 2017 mental health note showed the Veteran’s PCL-5, a test for the severity of PTSD symptoms, yielded a result of severe symptoms. Further, in a June 8, 2017 mental health note, the Veteran reported an increase of symptoms to include irritability, isolation, avoidance, hypervigilance, and intrusive thoughts, with flashbacks and nightmares occurring every other night. Given the above, the Board finds the Veteran’s PTSD symptoms, with depressive and panic disorders, while reflecting those of a 50 percent rating, given that the occupational and social impairment were in most areas, based on 38 C.F.R. 4.7 more nearly approximates the criteria for a 70 percent rating, but no higher, as of April 20, 2017. The Board finds that the Veteran’s request for mental health treatment with additional medication added to the Veteran’s regiment on April 20, 2017, is the first factually ascertainable evidence of record showing a worsening of the Veteran’s symptoms. The Veteran is not entitled to a rating of 100 percent disabling as the Veteran did not exhibit total social and occupational impairment as evidenced by his consistent denial of suicidal/homicidal ideation, delusions, or hallucinations. In addition, the Veteran’s June 2017 mental status examination showed the Veteran appeared neat, behavior was appropriate, and mood was calm. Further, thought process, insight, and judgment was normal, and there was no evidence of hallucinations or suicidal ideation. Similarly, in his October 2018 examination, mental status examination showed that the Veteran was well groomed, made appropriate eye contact, and was alert an oriented x 3. The Veteran was cooperative with no evidence of agitation, delusional thinking, auditory or visual hallucinations, or suicidal/homicidal ideation. Although the Veteran’s mood was depressed with flat affect, thought process was logical, insight and judgment were adequate, and there were no apparent memory difficulties. For the above reasons, the Veteran is entitled to a 70 percent rating, but no higher, for the period beginning April 20, 2017. For the period prior to April 20, 2017, the Veteran is not entitled to a rating greater than the 50 percent already awarded as the Veteran did not exhibit symptoms causing deficiencies in most areas or total impairment. Accordingly, the claim for a higher rating is denied for the period prior to April 20, 2017; however, for the period beginning April 20, 2017, the claim is granted. Entitlement to a TDIU. A TDIU rating may be assigned, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16 (b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is service-connected for PTSD with depressive disorder and panic disorder, evaluated at 50 percent disabling, effective April 30, 2008; bilateral hearing loss, evaluated at 30 percent disabling, effective June 17, 2010 and evaluated at 40 percent disabling effective February 9, 2012; tinnitus, evaluated at 10 percent disabling, effective February 9, 2012; duodenal ulcer, evaluated at 20 percent disabling, effective March 12, 1997; hepatitis C, evaluated at 10 percent disabling, effective February 26, 2003; and a stab wound with a non-compensable rating. The Veteran’s combined evaluation is 60 percent disabling from April 30, 2008, and 80 percent disabling from June 17, 2010. Therefore, the Veteran has met the schedular criteria for a TDIU for the period on appeal. In this case, the Veteran contends that he is unable to work due to his service-connected psychiatric disorders. After reviewing the evidence, the Board resolves reasonable doubt in favor of the Veteran and finds that a TDIU is warranted. Concerning the impact associated with the Veteran’s psychiatric disorder, the Board notes that the October 2015 examiner found that the Veteran is mildly impaired socially and occupationally, while the October 2018 examiner found that the Veteran’s symptoms cause occupational and social impairment with deficiencies in most areas. However, the October 2018 examiner also found that the Veteran’s symptoms would impact his ability to sustain gainful employment moderately. Specifically, the examiner noted that the Veteran’s symptoms would likely affect his ability to work cooperatively and effectively with co-workers, supervisors, and the public to a moderate degree. The examiner further found that attention, concentration, memory, and problem-solving would likely affect his ability to understand, follow and retain instructions, communicate effectively in writing, and solve technical or mechanical problems to a moderate extent. Further, his symptoms would likely affect his ability to maintain task persistence, arrive at work on time, and maintain regular schedule without excessive absences to a moderate extent. Although the Veteran primarily contends that his psychiatric disorder precludes him from working, the Board notes that all the Veteran’s service-connected disabilities must be considered when determining whether a TDIU is warranted. To that end, the Board initially notes that the Veteran has not asserted, nor does the evidence suggest, that the Veteran’s service-connected duodenal ulcer, hepatitis C, tinnitus, or his service-connected stab wound impacts his ability to obtain substantial gainful employment. However, his service-connected bilateral hearing loss appears to impact employability. In his February 2012 VA examination, the examiner found that the Veteran’s degree of hearing loss and speech understandability would cause the Veteran to have significant difficulty communicating with others on the job, especially when there is background noise and or distance between the Veteran and the one speaking to him. The Board notes that as a result of this examination, the Veteran’s disability rating was increased to 40 percent disabling, and the Veteran met the criteria for an exceptional pattern of hearing loss due to the severity of his condition. The Board has also considered the Veteran’s educational background as reported in social security documentation which includes a high school diploma. Additionally, prior work history shows the Veteran was employed as a truck driver from 1984 to 1987, and in construction from 1974 to 1999. The Veteran has reported on numerous occasions that he last worked in 1999, and that he receives Social Security Administration (SSA) disability benefits for his nonservice-connected leg, neck, and back problems. The Board recognizes that a grant of social security benefits is not binding on VA, nor are non-service-connected disabilities considered in determining entitlement to a TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). However, a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). Here, the evidence shows the Veteran’s psychiatric disorder caused mild social and occupational impairment as noted by the October 2015; and moderate impairment as found by the October 2018 examiner. However, the October 2018 examiner also found that the Veteran’s symptoms cause occupational and social impairment with deficiencies in most areas with symptoms of depressed mood, anxiety, suspiciousness, panic attacks, sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. Further, the Veteran has a hearing loss disability that is severe in nature. Given the above, and without considering the Veteran’s inability to work due to his non-service-connected disabilities, the Board finds the evidence is in relative equipoise as to whether the combined effects of his service-connected psychiatric disorders and hearing loss disability preclude the Veteran from obtaining substantial gainful employment. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that TDIU is warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel