Citation Nr: 18158959 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 08-23 703 DATE: December 18, 2018 ORDER A 70 percent evaluation, but no higher, for posttraumatic stress disorder (PTSD), beginning May 7, 2007, but no earlier, is granted. FINDING OF FACT Beginning May 7, 2007, but no earlier, the evidence of record demonstrates that the Veteran’s psychiatric disability resulted in deficiencies in most areas; however, his psychiatric disability does not demonstrate psychiatric symptomatology such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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, resulting in total occupational and social impairment throughout the appeal period. CONCLUSION OF LAW The criteria for a 70 percent evaluation, but no higher, for PTSD, for the period beginning May 7, 2007, but no earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1970 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied an evaluation in excess of 30 percent for the Veteran’s PTSD; the Veteran timely completed appeal of that decision. In October 2008, the Veteran testified during a hearing before a Decision Review Officer (DRO); a transcript of that hearing is of record. During the pendency of the appeal, the Veteran was awarded a 50 percent evaluation for his PTSD, effective January 5, 2010, and a 70 percent evaluation for his PTSD, effective December 26, 2012, in respective April 2012 and December 2015 rating decisions. The Board, as will be discussed below, has taken these awards of benefits into consideration in analyzing this claim. This case was previously before the Board in August 2012 and January 2017, at which time the Board remanded the claim for further development. The case has been returned to the Board at this time for further appellate review, following substantial compliance with the previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). As noted in the September 2007 rating decision, the Veteran filed his claim for increased evaluation of his PTSD on May 7, 2007; therefore, the Board has considered the evidence of record since May 7, 2006, in conjunction with this decision. See 38 C.F.R. § 3.400(o). As noted above, the Veteran’s PTSD was assigned a 30 percent evaluation for the period prior to January 5, 2010, a 50 percent evaluation for the period of January 5, 2010 through December 25, 2012, and for the period beginning December 26, 2012, a 70 percent evaluation. All evaluations were assigned under Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, 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), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. A 50 percent evaluation 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.. See Id. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted 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; 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. See Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116 Turning to the evidence of record, the Board reflects that a copy of the May 7, 2007 claim for increased evaluation for his PTSD is not of record at this time. A May 2007 consult psychiatric report from the North Mississippi Medical Center reflects that on examination, the Veteran’s affect was flat and he appeared to be significantly sad. His speech was normal and coherent and he was cooperative. He acknowledged difficulty sleeping. His mood was depressed; his thought processes was spontaneous; he was oriented to person, place, and time; and there was no psychosis noted. He reported suicidal ideation at times but denied suicidal thoughts at the time of the examination. The Veteran also reported flashbacks. Additionally, the evidence of record, including in the September 2007 rating decision and the July 2008 statement of the case, the Agency of Original Jurisdiction (AOJ) had listed an August 2007 VA psychiatric examination report was reviewed. The Board notes that VA examination report is not of record, and after remand to attempt to obtain those records, the AOJ indicated in an September 2017 memorandum to the file that the August 2007 VA psychiatric examination report was unavailable and that further attempts to obtain that report would be futile. Given the absences of this evidence of record, the Board has carefully explained its findings and considered the benefit of the doubt in this case, as discussed further below. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). During the October 2008 hearing before the DRO, the Veteran’s wife reported that he revisited Vietnam a lot of times. He had difficulty with short term memory, he could not use the bathroom on his own anymore, he could not drive and cook on his own, he had anger outbursts daily, difficulty sleeping, and he did not have any conversations with his family. The Veteran’s son testified that a VA doctor told him that the Veteran should be rated as 100 percent disabling. The Veteran did not testify and when he was asked one question, he stated “I don’t know.” During a January 5, 2010 VA examination, the Veteran reported that he continued to feel depressed every day, and rated the severity of his depressed mood as “7-8” on a scale of increasing severity (with 10 indicating “severely depressed mood”). He denied low self-esteem but reported anhedonia and passive suicide ideation. The examiner reported that the Veteran’s wife provided most of the information noted in the report as the Veteran presented with expressive aphasia since his stroke in 2007. However, he noted, the Veteran attributed his difficulty responding to short-term memory impairment. The Veteran’s wife reported that since 2007, her husband regressed to a child-like state and became dependent on her for everything. She believed that this was due, in part, to his physical problems, but also attributed this dependence to the Veteran’s low energy and lack of motivation secondary to his worsening depression and PTSD symptoms. The Veteran reported that there were no problems in their relationship. However, the Veteran’s wife reported that there had been increased tension in their relationship since 2007 due to his physical and mental health problems. The Veteran’s wife reported that he has previously been close to his three sisters and one brother but has not spoken to them, or his mother, in recent years. The Veteran reported that he had some friends although he remained at home most of the time. Additionally, he reported increased isolation since 2007 and stated that he did not want to socialize with his friends anymore. His wife reported that he would only interact with his wife and children and would not visit his mother. The Veteran reported that he previously enjoyed drag racing, hunting, and fishing. He reported that he no longer engages in these activities. He reported that he spent most of the day watching television or just sitting around appearing lost in his thoughts. The examiner reported that during the examination, the Veteran displayed low energy and insisted that he could not answer most of the questions presented. He deferred most questions to his wife and sat with his head down looking into his lap. The examiner reported that the Veteran appeared dysphoric and did not initiate conversation with the examiner. However, when addressed, the Veteran would maintain eye contact and smile, even when his answer was to defer to his wife’s opinion. On examination, his mood was depressed; he was easily distracted; he was intact to person, time, and place; he repeatedly stated that he could not remember the answer to a question posed; no delusions; and good judgment and insight. The Veteran reported sleep impairment described as four to five hours of broken sleep per night due to his difficulty with both falling asleep and staying asleep. The Veteran did not have any hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal thoughts, and suicidal thoughts. The examiner noted that the Veteran had fair impulse control and no episodes of violence. The examiner noted there was slight to severe problems with activities of daily living. The Veteran’s wife reported that the Veteran would sometimes state “I am going to hit you” when he became “aggravated” but he has never struck her or anyone else since Vietnam. The examiner noted that there was not total occupational and social impairment due to PTSD signs and symptoms. The Veteran reported that he felt depressed every day and that he was more depressed now than he was two years ago. The Veteran’s wife reported that he presented with low energy and anhedonia, and he did not seem to enjoy activities even if he could be convinced to engage in them. Additionally, she reported that he had poor appetite. The examiner indicated that some of these symptoms may be secondary to his seizures and his stroke in 2007. The Veteran reported that he felt unable to make decisions and sometimes thought he would be better off dead. He denied active suicidal ideation, intent, or plan. The Veteran reported good memory for past events including his childhood and military service. However, he repeatedly stated that he did not remember information about recent events. He explained that these difficulties may be a result of his recent stroke or seizure activity. He reported that medical records reflect that he was prescribed medication from the rehabilitation center for memory. In a December 26, 2012 VA examination report, the examiner reported that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran’s psychiatric symptoms included depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; suicidal ideation; impaired impulse control; and neglect of personal appearance and hygiene. The Veteran’s daughter stated that he had a temper and would become angry and impulsively make verbal threats to others. She recounted a time where he stated, “I will shoot you because I have nothing to live for anyway.” The Veteran reportedly needed help with toileting, bathing, dressing, transportation, cooking, and transferring from his wheelchair. The Veteran denied any hobbies. He reported that riding in cars could precipitate anxiety due to hypervigilance. The Veteran reported re-experiencing nightmares at least two to three times a week. The Veteran’s daughter reported that she believed he had them nightly. She also reported that he rarely slept at night. He reported chronic anxiety symptoms such as restlessness and low frustration tolerance. He reportedly became increasingly angry about his physical limitations. Due to feelings of helplessness, his hypervigilance increased. He reported that he continued to have anger outbursts, irrational fears, panic attacks, and crying spells. The Veteran reported that he had intrusive thoughts on a daily basis. He reported he had thoughts of suicide but denied actual intent or past gestures. A November 2014 VA examination report reflects that the examiner reported that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran’s sleep was described as “good.” He denied having many nightmares. He reported that his energy level and mood was good most of the time. He reported that he experienced a depressed mood several times a month which he felt very sad, low, and tearful. His depression had been much worse since his wife died in 2014. He reported that he was having some problems with irritability and feeling short tempered but indicated that he tried to remain pleasant around his family members and grandchildren. He stated that anger management was no longer a problem but reported that at one time, he did have frequent outbursts and was involved in some physical altercations when he was a younger man. He reported that now his anger is well controlled and he does not have any periods of violence or aggressive outbursts. He did not have suicidal or homicidal ideations. He reported that his appetite was good. His social interactions were limited and he was unable to get around. He reported that he had anxiety, but did not have problems with feeling nervous every day. He reported he felt anxious when he had appointments and when he went out in public where there were a lot of people. He denied any panic attacks, either at home or in public situations. He says that he does not have any serious problems with ruminative thinking, worrying, or relaxing. He reported that his concentration was described as pretty good most of the time. He reported mild memory loss. He denied any psychotic symptoms, history of manic episodes, and obsessive compulsive behavior. The Veteran is not independent and requires assistance with many aspects of his personal care. He was able to manage all toileting without assistance due to remodeling his bathroom. He was able to feed himself. The Veteran reported that his wife died in 2014 of lung cancer. He saw his daughter once a week and his oldest son on a daily basis. He reported that he had a few friends and he saw them occasionally when they stopped by the house to talk. He spent his time watching television (avoiding shows about Vietnam or combat). The Veteran reported that he used to love hunting and fishing but could not do either due to his physical limitations. He was not able to perform any chores and housekeeping. He reported that he ate out occasionally with one of his family members and is not bothered by the restaurant environment. Socialization with others was limited as he is unable to get around on his own anymore. He saw his family regularly. At the time of the evaluation, the Veteran complained of intrusive thoughts and memories, flashbacks, emotional and physical reactivity. He reported feelings of detachment, difficulty expressive positive emotions, irritability, hypervigilance, heightened startle responses, and mild difficulty concentrating. VA and private treatment records reflect continued treatment for the Veteran’s PTSD with psychiatric symptoms consistent with the symptoms noted in the VA examination reports. Upon review of the evidence of record, the Board finds that the Veteran’s PTSD more nearly approximates the criteria required for a 70 percent disability rating, but no higher. As noted above, the evidence of record reflects that the Veteran had suicidal ideation, anger outbursts, depression, difficulty with intimate and social relationships, depression, low motivation and energy, panic attacks, intrusive thoughts, flashbacks, and sleep impairment throughout the appeal period. The Board finds that such evidence is demonstrable of occupational and social impairment with deficiencies in most areas throughout the appeal period. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (“VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.”). In so awarding a 70 percent evaluation throughout the appeal period, the Board assigns that evaluation as effective May 7, 2007, the date on which his claim was received in this case. The Board, however, denies a 70 percent evaluation prior to that date, as there is no evidence prior to that date on which it is factually ascertainable that an increase in symptomatology occurred. See 38 C.F.R. § 3.400(o). Additionally, the Board has also considered whether the evidence supports a 100 percent evaluation at any time during the appeal period; the Board finds that it does not. The Board acknowledges that there have been consistent reports of the Veteran’s difficulties with activities of daily living and grooming throughout the appeal period; however, it is noted that the Veteran suffers from lupus, a seizure disorder, and had a stroke in 2007 has resulted in significant physical impairment. As noted in the Veteran’s 2012 and 2014 VA examinations, his psychiatric disability does not affect his ability to maintain his personal hygiene after remodeling his bathroom, indicating that his impairments in aspect of his functioning was due to physical not mental impairments. Additionally, the Veteran maintained a relationship with his wife (up until her death) and remains close to his children; he also reported that he had friends. He was found to be fully oriented throughout the appeal period. The evidence does not demonstrate that the Veteran had any hallucinations or delusions, significant memory loss, that he was a persistent danger to himself or other, or evidence of a gross impairment in thought processes and communication throughout the appeal period. Consequently, the Board is compelled to find that that the Veteran’s psychiatric disability does not at any time demonstrate psychiatric symptomatology such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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, resulting in total occupational and social impairment. In conclusion, the Board finds that a 70 percent evaluation, but no higher, is warranted in this case beginning May 7, 2007, but no earlier; in all other aspects, the Board finds that an evaluation in excess of 70 percent for his PTSD must be denied at this time. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laroche, Natalie