Citation Nr: 18159624 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-04 332 DATE: December 20, 2018 ORDER Entitlement to an increased disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s PTSD has been manifested by no worse than occupational and social impairment with reduced reliability and productivity, without deficiencies in most areas or total occupation and social impairment. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 50 percent for PTSD have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1971 to March 1973. Although the June 2016 rating decision on appeal was issued in response to a March 2016 increased rating claim filed by the Veteran, the Board is mindful that a prior October 2015 Board decision referred an increased rating claim for PTSD based upon an August 20, 2014 statement by the Veteran. As such, in order to afford the Veteran due process, the Board has considered the relevant temporal period from one year prior to the Veteran’s August 20, 2014 statement. Additionally, to the extent that the Veteran has submitted prior statements concerning his appeal regarding entitlement to an earlier effective date for the assignment of a 50 percent disability rating for PTSD, the Board notes a December 2013 Board decision granted an earlier effective date of September 3, 2010 for the grant of an increased 50 percent disability rating for PTSD; this was subsequently implemented by a December 2013 rating decision. Thereafter, the Veteran did not continue to appeal the effective date claim; as such, it is not before the Board and need not be addressed herein. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Disability Rating in Excess of 50 percent for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. 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 Veteran’s service-connected PTSD is currently rated as 50 percent disabling from September 3, 2010 under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. Under the applicable rating criteria, a 50 percent disability rating is warranted when 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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. Finally, a 100 percent disability rating 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; memory loss for names of close relatives, own occupation, or own name. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501 (2012); 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over inclusive. The Secretary’s use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are “like or similar to” those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” See also Bankhead v. Shulkin, No. 15 2404 (Vet. App., Mar. 27, 2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). As discussed below, following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased disability rating for PTSD in excess of 50 percent for the entire period on appeal. Upon VA PTSD examination in April 2016, the Veteran reported that he continued to live with his wife and adult son and that he spent his time around the house watching TV or going online, or taking a walk, going out to eat, or going to the store. He noted that he did not socialize much and did not enjoy being around other people. He reported that he retired from his job as an aircraft mechanic at American Airlines in 2013 due to an inability to concentrate and physical difficulties from his diabetic neuropathy. The Veteran had continued to receive mental health treatment from VA, though it was limited to medication management, despite recommendations to restart mental health therapy since it had stopped in 2014. Following a psychiatric evaluation, the VA examiner identified PTSD symptoms including anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. Upon mental status examination, the Veteran appeared alert and oriented, with no significant cognitive or memory deficits, and no evidence of a formal thought disorder, delusions, hallucinations, overdetermined content, pressure of speech, or suicidal or homicidal ideation. The VA examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Board has also reviewed ongoing VA treatment records throughout the appeal period. Significantly, VA psychiatric treatment records from October 2013 to November 2016 document regular mental status examinations wherein the Veteran reported stable and consistent psychiatric symptoms, including ongoing sleep impairment with nightmares, anxiety, depression, and irritability, without a history of impulsiveness, risky behavior, or physical violence. To the extent that he has also reported auditory and visual flashbacks, he also denied any resulting compulsions, delusions, or other psychotic symptoms; moreover, these flashbacks have not resulted in deficiencies in most areas. The Veteran also consistently presented with normal speech, broad affect, normal though processes and content, as well as appropriate impulse control, judgment, and insight, without any impairment of personal hygiene, and no suicidal or homicidal ideation. Additionally, the Board notes that while the Veteran has previously been granted a total disability rating based upon individual unemployability, a November 2016 treatment note documents that the Veteran was attending cognitive behavioral therapy for insomnia but had to leave a session early to attend a new, seasonal job. This is also evidence that tends to show that the Veteran’s PTSD has not resulted in occupational impairment with deficiencies in most areas. Notably, the probative evidence of record, including as discussed above, weighs against the Veteran’s claim of entitlement to an increased disability rating in excess of 50 percent for PTSD, as the Veteran’s PTSD symptomatology does not more closely approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. The probative evidence during the appeal period does not document suicidal ideation; obsessional rituals, which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; or neglect of personal appearance and hygiene or other symptoms of this level of severity. While the objective evidence documents the Veteran report of irritability, he has denied any history of violence or risky behaviors, and consistently presented with appropriate impulse control. Additionally, the Board has considered the severity, frequency, and duration of the mental health symptoms displayed by the Veteran during the relevant period on appeal. Having considered the relevant evidence, including the April 2016 VA PTSD examination and VA treatment records, the Board finds that the manifesting mental health symptoms were not of such severity, frequency, and/or duration to more nearly approximate deficiencies in most areas or total occupational and social impairment. The Board is also mindful that the April 2016 VA examiner specifically identified that the Veteran’s occupational and social impairment met the criteria for a 30 percent disability rating. While the adjudicator is responsible in determining which disability rating is warranted, the VA examiner’s conclusion that the Veteran’s impairment resulting from his service-connected PTSD is best described as meeting the 30 percent disability rating criteria is probative evidence against a finding that the Veteran’s service-connected PTSD results in occupational and social impairment with deficiencies in most areas or total occupational and social impairment for the entire appeal period. As the Veteran’s PTSD symptoms do not meet the rating criteria for a higher 70 percent disability rating for the appeal period, it follows that his PTSD symptoms also do not meet the more severe rating criteria for an increased 100 percent disability rating for the rating period. Significantly, he has not shown the required severity of occupational and social impairment necessary for an increased 70 or 100 percent disability rating during the rating period, and his symptoms as a whole are not of similar severity, frequency, and duration as those particular symptoms associated with a 70 or 100 percent disability rating. In conclusion, the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased disability rating in excess of 50 percent for PTSD for the entire period on appeal, as his PTSD is not more closely approximated by occupational and social impairment with deficiencies in most areas. As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. Extraschedular Referral Consideration The Board has also considered whether referral for an extraschedular rating is warranted for the service connected PTSD. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2017). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). However, the Board gives no deference to the Director’s adjudication and the Board is permitted to exercise jurisdiction over the question of entitlement to an extraschedular rating whether or not the Director of the Compensation and Pension Service finds an extraschedular rating warranted. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board); Cf. Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular rating inadequate. A comparison between the level of severity and symptomatology of the Veteran’s PTSD with the established criteria found in 38 C.F.R. § 4.130, Diagnostic Code 9411, reflects that the diagnostic criteria reasonably describe the Veteran’s disability level and symptomatology and degree of occupational and social impairment. The diagnostic criteria convey that compensable ratings will be assigned for PTSD which manifests by various levels of occupational and social impairment. The Veteran’s disability picture has been shown to encompass occupational and social impairment based on symptoms including anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships, among other symptoms discussed above. All the impairment and symptoms are either explicitly part of the schedular rating criteria or are “like or similar to” examples or symptoms in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. For these reasons, the Veteran’s service connected PTSD has not been shown to be productive of an exceptional disability picture; therefore, the Board determines that referral of this case for extra schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above. In the absence of exceptional factors associated with the Veteran’s mental health, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel