Citation Nr: 18159608 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 13-29 383 DATE: December 20, 2018 ORDER Entitlement to an initial rating of 70 percent for the period prior to April 21, 2016 for post-traumatic stress disorder (PTSD) is granted. Entitlement to an initial rating in excess of 70 percent for PTSD is denied. REMANDED Service connection for left ear hearing loss disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, for the entire period on appeal, the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas such as work and family relations; near-continuous depression; recurring suicidal ideations without plan; difficulty interacting with people and maintaining relationships; and by anxiety, flashbacks, isolation, hypervigilance and startled response. CONCLUSIONS OF LAW 1. For the appellate period prior to April 21, 2016, the criteria for an evaluation of 70 percent for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Diagnostic Code 9411 (2017). 2. For the entire appeal period, the criteria for an evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1961 to July 1965. This case comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and April 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2017, the Board denied entitlement to service connection for left ear hearing loss, as well as a higher initial rating for the Veteran’s service-connected PTSD. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC). In an August 2018 Order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the portion of the Board’s decision denying entitlement to service connection for left ear hearing loss and a higher initial rating for PTSD, and remanding these issues back to the Board for further development and readjudication in compliance with directives specified. The issue of entitlement to TDIU was noted to not be before the Court. The case has now been returned to the Board for adjudication. Increased Rating The Veteran’s PTSD is currently rated as 50 percent disabling prior to April 21, 2016 and as 70 percent disabling thereafter. He seeks an increased disability rating. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). As described above, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating; that is, be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-28. 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 for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Under the rating criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent evaluation is appropriate with 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is provided 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 or hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is provided for PTSD where 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; memory loss for names of close relatives, own occupation, or own name. In evaluating psychiatric disorders, it must be shown that industrial impairment is the result of actual manifestations of the service-connected psychiatric disorder. The severity of a psychiatric disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful employment and decrease in work efficiency. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. A lay person is competent to report observable symptoms they observe. Layno v. Brown, 6 Vet. App. 465 (1994). Whether lay evidence is considered competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Board has thoroughly reviewed all the evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). This claim is governed by DSM-IV. Service connection for PTSD was granted in an April 2013 rating decision, which assigned an initial 50 percent rating, effective February 9, 2011. A July 2016 rating decision increased the rating to 70 percent, effective April 21, 2016. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). The record consistently notes a history of depression, including a July 2000 medical note stating a history of depressed mood and reports of severe depression. The Veteran has reported that his depression was so severe that it led him to lock himself in his home and not leave for several days at a time. During a March 2011 VA psychiatric evaluation, the clinician noted that the Veteran presented with severe depression, amongst other problems. He presented with “suicidal thoughts due to back pain.” He was medically treated resulting in stability of symptoms. In April 2011, the Veteran presented for a follow-up psychiatric evaluation at a VA treatment facility. The Veteran reported symptoms of severe nightmares, poor sleep, memory loss, and difficulty concentrating. He also reported that he was going to “start a garden with his buddy whom lives [with].” During the evaluation, the clinician noted that the Veteran presented as neat and clean, and cooperative with a congruent affect. Psychomotor activity was unremarkable and the thought process was coherent. There was evidence of severe depression, but only a little hostility and impulsivity. The clinician also noted that the Veteran had current thoughts of hurting or killing [himself]. The clinician noted a moderate suicidal risk level, but the Veteran was noted as not acutely dangerous to self. During an April 2013 VA examination, the Veteran reported that he was married for approximately 27 years until divorcing. He reported a good relationship with his children. He reported having multiple friends, although his social life is currently “very limited.” He reported having few friends, avoiding large groups of people, feeling detached or estranged from others, and being reluctant to get close to others. He stated that he tends to spend most of his time watching television. He also reported having a lack of patience and difficulty forming close relationships post-service. The examiner noted that the Veteran’s PTSD symptoms consisted of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner also reported persistent symptoms of irritability/outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. There were no symptoms of panic attacks; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or Inability to establish and maintain effective relationships. The AXIS I diagnoses were PTSD, chronic and moderate; and alcohol abuse. The examiner noted that it was not possible to differentiate what symptoms are attributable to each diagnosis because the alcohol abuse is secondary to the PTSD. The examiner determined the Veteran’s overall level of impairment was occupational and social impairment with reduced reliability and productivity due to hypervigilance, drinking and anxiety. VA treatment records between 2014 and 2016 show the Veteran reported symptoms including memory and concentration difficulties, chronic sleep impairment, nightmares, low energy. Objective evaluations revealed no evidence of psychotic symptoms. His thought process was logical and coherent and thought content was appropriate to circumstances and mood. Mood was at times depressed, irritable or dysphoric. Speech was appropriate. Grooming and hygiene were appropriate. The Veteran’s level of judgment and insight into his current difficulties ranged from poor in 2013 to good in 2016. Affect ranged from blunted to mildly restricted. During an April 2016 VA examination, the Veteran reported that he resides with his sister and her family. He maintained that his sister was his main social support system. His PTSD symptoms consisted of chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work-like setting. He was appropriately dressed and groomed. He was oriented times three, calm and coherent. His affect was slightly restricted, but otherwise reported a “good” mood. The VA examiner also noted that the Veteran was cooperative, responded to questions and had friendly mannerisms. The VA examiner reported that the Veteran’s judgement was fair, his thought process was organized and coherent, and his speech was average. His short-term and long-term memory were intact. There was no evidence of suicidal or homicidal ideations. The Veteran denied past and current audio and visual hallucinations. The VA examiner opined that the Veteran’s overall level of PTSD was best described as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood symptoms caused moderate occupational impairment. The examiner then further indicated that the Veteran’s PTSD was considered moderate as it causes “interpersonal relatedness impairments with interpersonal relatedness defined by the ability to listen attentively and respond appropriately (communicating that one has listened); to initiate conversation; to give and receive constructive criticism; to offer and receive advice.” The VA examiner also indicated that the Veteran’s interpersonal problems occur due to “1) irritability or outbursts of anger which causes him to alienates himself and creates fear in other people; 2) apathy which saps desire to connect to others; 3) detachment causing Veteran’s difficulty in relating to other people.” The VA examiner further noted that the Veteran’s PTSD causes “attention, concentration, and memory problems, where attention [and] concentration defined as ability to focus attention, to assimilate sensory and perceptual inputs, to comprehend, analyze, and remember information. The memory and concentration problems occur due to recurrent hypervigilance.” For the period prior to April 21, 2016, the Veteran has been rated at 50 percent for his service-connected PTSD and he seeks a higher rating. Upon careful review of the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the reported symptomatology for this period of time has more nearly approximated that of a 70 percent disability rating. During this period of review, the Veteran’s PTSD is primarily manifested by social avoidance, disturbance of mood including irritability, near-continuous depression and anxiety; chronic sleep impairment, exaggerated startle response, hypervigilance, and suicidal ideation or thoughts. In terms of social functioning, the evidence shows that the Veteran has some deficiencies in establishing and maintaining social relationships. He reported having few friends, avoiding large groups of people, feeling detached or estranged from others, and being reluctant to get close to others. He stated that he tends to spend most of his time watching television. He also reported having a lack of patience and difficulty forming close relationships post-service. In terms of occupational functioning, occupational impairment has been shown. The April 2013 VA examiner found that the Veteran’s PTSD symptoms have affected his ability to establish and maintain effective work and social relationships. The examiner also determined that the Veteran’s occupational impairment, based on the history and clinical presentation, was best described as “reduced reliability and productivity.” The record shows near-continuous reports of depression affecting the Veteran’s ability to function independently. This level of occupational impairment is consistent with a 70 percent rating. Finally, the Veteran has endorsed suicidal ideations during this appeal period. After looking to the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture, the Board finds that the preponderance of evidence demonstrates that disability due to the Veteran’s psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent. See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that his symptoms more nearly approximate the frequency, severity, and duration of symptoms ratable at the 70 percent disability evaluation or higher. As such, a disability rating of 70 percent is granted prior to April 21, 2016. As such, a uniform rating of 70 percent is now in effect for the entire period on appeal. The Board must now determine if a disability rating in excess of 70 percent is warranted at any time during the appeal period. In this regard, the Board notes that in accordance with Mauerhan and Vazquez-Claudio, the Board recognizes that the Veteran’s PTSD produces a wide range of symptoms; however, there has been no evidence of total occupation or social impairment to warrant a 100 percent rating. None of the evidence of record, shows that the Veteran’s PTSD causes “total” occupational and social impairment, which is required by the 100 percent criteria. 38 C.F.R. § 4.130. The Veteran’s PTSD is primarily manifested by social avoidance, disturbance of mood including irritability, near-continuous depression and anxiety; chronic sleep impairment, exaggerated startle response, hypervigilance, and suicidal ideation or thoughts. See April 2016 VA examination. These symptoms, and their severity, frequency, and duration as shown by the evidence are contemplated in the current 70 percent rating. Further, the objective symptoms noted and the subjective symptoms reported since April 2016 do not correlate with the type of symptoms (or frequency, duration, or severity of such symptoms) for an assignment of a 100 percent rating. For instance, the evidence of record does not reflect that the Veteran had problems with his thought processes, grossly inappropriate behavior, persistent danger of hurting himself or others, or an intermittent inability to perform activities of daily living; that is, many of the symptoms that have traditionally been associated with a 100 percent rating. In terms of social functioning, the evidence shows that he is able to establish and maintain social relationships even despite his irritability, outbursts of anger, and diminished interest in social activities. As noted in the April 2016 VA examination report, the Veteran was able to maintain residing with his family and remain socially engaged with his sister despite his interpersonal difficulties. In terms of occupational functioning, total occupational impairment has not been shown. The April 2016 VA examiner determined, based on the history and clinical presentation, that the Veteran’s level of occupational impairment was best described as deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood which the Board notes is consistent with a 70 percent rating. The examiner did not find that total impairment was demonstrated. After carefully considering all of the evidence of record, to include VA and private examinations, treatment records, the Veteran’s statements to include his testimony at the hearing and additional lay statements of record, the Board finds that a 100 percent rating is not warranted at any point during the appeal period. 38 C.F.R. § 4.119; Hart, supra; Vazquez-Claudio, 713 F.3d at 117. The Board notes that in a November 2018 brief, the Veteran and his representative stated they were only seeking that a 70 percent disability rating be assigned since the grant of service connection for PTSD. As such, the decision above constitutes a full grant of the benefits sought. Regardless, as discussed above, the evidence does not support a finding of total occupation and social impairment. Consequently, the Board finds that an initial rating of 70 percent, but no higher, for PTSD is warranted for the entire appeal period. REASONS FOR REMAND Service connection for left ear hearing loss is remanded. In the August 15, 2018 joint motion for remand (JMR), the parties determined that the Veteran’s February 2014 VA hearing loss examination was inadequate. Thus, the Board must remand this matter for compliance with the Court’s August 15, 2018 order granting the parties’ JMR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or explain why the terms will not be fulfilled). The matter is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a new VA examination with an ENT specialist to evaluate his hearing loss disability. The claim file, to include any newly associated evidence, should be provided for review by the examiner, and all required studies should be performed. 2. If there is a diagnosis of a left ear hearing loss disability that meets the minimum standards under 38 C.F.R. § 3.385, then the examiner should provide an opinion, with detailed rationale, addressing the question of whether the Veteran’s left ear hearing loss disability is at least as likely as not (a greater than 50 percent probability) caused by or related to his active duty service. 3. The examiner should acknowledge and consider the evidence of record, including the Veteran’s military occupational specialty of Boatswains Mate in the United States Navy. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Kerner, Associate Counsel