Citation Nr: 18160744 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-55 578 DATE: December 27, 2018 ORDER Entitlement to an initial evaluation higher than 70 percent for service connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s PTSD did not approximate total social and occupational impairment. CONCLUSION OF LAW The criteria for entitlement to an evaluation higher than 70 percent for service- connected PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130 Diagnostic Code (DC) 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from August 2008 until June 2013. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In September 2017, the Board granted a 70 percent evaluation for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Court granted the parties’ Joint Motion for Remand (JMR), vacating and remanding the portion of the Board’s decision that addressed the evaluation for PTSD as a new claim for increase. In the JMR, the parties agreed that the Board erred in failing to provide an adequate statement of reasons and bases regarding whether the Veteran’s initial July 2013 claim was final. The portion of the Board’s decision that addressed an increased evaluation for chronic pneumonitis was not disturbed. Additionally, the Veteran’s claims of entitlement to an increased evaluation for patellofemoral syndrome, right knee surgical scar, and entitlement to a total disability evaluation based on individual employability (TDIU), were previously remanded and are not before the Board. In September 2017, the RO issued a rating decision to implement the September 2017 Board decision. In August 2018, the Veteran filed a Notice of Disagreement (NOD) with the effective date assigned. In November 2018, a statement of the case (SOC) was provided and the Veteran filed a substantive appeal in the same month. The issue of entitlement to an earlier effective date for PTSD has not been certified to the Board. Accordingly, the issue will not be addressed in this decision. Duties to Notify and Assists Neither the Veteran nor his attorney 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 a duty to assist argument). Procedural Issues The Veteran filed a claim for entitlement to service connection for PTSD in July 2013. In a November 2013 rating decision, entitlement to service connection for PTSD was granted with a 30 percent evaluation. After the November 2013 rating decision, a February 2014 VA treatment record, an October 2014 VA examination, and an April 2014 medical evaluation were added to the claims file. This evidence contained information regarding the severity of the Veteran’s PTSD. This evidence is thus new and material and submitted prior to the expiration of the appeal period; therefore, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, despite the Veteran submitting a claim for an increased evaluation in March 2014, the November 2013 rating decision remained pending. However, the RO denied an increased evaluation in a November 2014 rating decision. The Veteran did not submit new and material evidence within the one-year appeal period. The Veteran submitted an informal claim in June 2015. That communication did not contain express dissatisfaction or disagreement with the rating decision and a desire to seek appellate review or the proper form for a notice of disagreement after March 2015. See 38 C.F.R. § 20.201 (2014); Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Thus, the June 2015 informal claim for increase that was later perfected in a November 2015 formal claim, is the date of the claim on appeal. In a March 2016 rating decision, the RO assigned a 50 percent evaluation, effective June 10, 2015. The Board finds that the appeal period begins with that date. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran’s service connected PTSD is rated under 38 C.F.R § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, the Veteran’s current 70 percent evaluation contemplates 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. A 100 percent evaluation is warranted for a mental disorder 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, DC 9411. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms; the length of remissions; and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). In addition, the evaluation must be based on all the 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. 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). “[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 v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be based on all the 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. 38 C.F.R. § 4.126. In March 2014 and April 2014 VA treatment records, the Veteran regularly attended group therapy and reported his mood as good. The Veteran returned for individual therapy in March 2014. The Veteran stated he was going through a divorce. The Veteran reported nightmares, feelings of guilt, and low energy. The treatment provider determined his affect as normal, no delusions, cognition and memory grossly intact, concentration fair, judgement fair, and insight fair. The Veteran denied suicidal and homicidal ideation. In April 2014 VA records, the Veteran endorsed severe irritability. He stated a worker came to his home to cut off his electricity and the Veteran threatened to kill him. When the worker returned with the sheriff there were no issues. The Veteran endorsed passive thoughts of wanting to die but denied a plan or intent. The treatment provider noted an irritable mood, concentration and attention span fair, poor judgment, and poor insight. In May 2014 VA records, the Veteran endorsed reduced irritability. The Veteran stated he started school majoring in computers. The Veteran endorsed worrying about people from his time in the service coming after him but stated he knows that is not a reasonable belief. The treatment provider determined the Veteran’s mood was less anxious, no suicidal or homicidal ideation, memory grossly intact, concentration and attention span fair, judgement fair, and insight fair. In June 2014 VA records, the Veteran reported he was stable since his last visit. The Veteran stated his anxiety was under control and his only complaint was insomnia. The treatment provider noted an okay mood, bright affect, and no other changes in behavior. In August 2014, the Veteran endorsed stable mood, improved concentration, and mild sleep impairment. The treatment provider noted good mood with congruent affect and no other changes in behavior. In September 2014 VA records, the Veteran reported depression, feelings of hopelessness, and daily nightmares. The Veteran denied any suicidal intent or plan and denied homicidal ideation. The treatment provider noted a down mood with congruent affect. The treatment provider determined the Veteran was pleasant and cooperative, and thoughts were coherent and directed. The Veteran received a VA examination in October 2014. The Veteran reported that he continues to reside with his girlfriend of two years and they have one daughter who is ten months old. The Veteran also has four sons who reside in his home. The Veteran reported a close relationship with all his children and an “ok” relationship with his girlfriend. The Veteran endorsed playing video games, watching movies, completing home projects, going to museums, zoos, fishing, and attending his children’s school functions. The Veteran indicated he was starting college classes online, but he had memory problems which made coursework difficult. The examiner noted that the Veteran’s statements and reported symptoms were inconsistent and appeared to be exaggerated. The Veteran endorsed frequent distressing thoughts of military trauma that affected him three times a week for twenty minutes. The Veteran endorsed symptoms of nightmares, avoiding things that reminded him of his military trauma, hypervigilance, reduced concentration, and irritability. The examiner found that the Veteran was diagnosed with PTSD and that it resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. In November 2014 the Veteran reported improved sleep, improved mood, no suicidal ideation, and no panic attacks. The Veteran reported some problems with focus and concentration. The mental health provider observed that the Veteran was well groomed, pleasant, cooperative, good mood, no homicidal or suicidal ideation, no psychosis, alert, and oriented. In February 2015 the Veteran endorsed thoughts of suicide with no plan. The VA conducted a suicide risk assessment and determined the Veteran to be low risk for suicide. The treatment provider determined that the thoughts were persistent due to financial stress and recommended therapy and re-assessment. The Veteran reported poor memory and sleep impairment. The treatment provider opined that these symptoms were strongly related to psychosocial stressors including, the death of a friend, recent divorce, and custody battle. In March 2015, the Veteran continued to report passive suicidal ideation, sleep impairment, and indifferent mood. The Veteran denied intent or plan of suicide and stated he could not do such a thing because of his kids. The mental health provider observed that the Veteran was well groomed, pleasant, cooperative, okay mood, no homicidal ideation, no psychosis, and alert and oriented. In May 2015, the Veteran endorsed improved mood, improved sleep, anxiety under control, and denied symptoms of depression. The Veteran stated he was still in school full-time, has some difficulty with his wife, and enjoys spending time with his kids. The mental health provider observed that the Veteran was well groomed, pleasant, cooperative, good mood, no homicidal or suicidal ideation, no psychosis, alert, oriented, and insight and judgement intact. In August 2015, the Veteran reported sleep impairment due to headaches and stated he was beginning a new school semester and doing better. The mental health provider observed that the Veteran was casually dressed, grooming and hygiene were fairly good, speech was within normal limits, mood fair, affect was mood congruent and appropriate, no thought disorder, no suicidal or homicidal ideation, no psychosis, alert and oriented, and insight and judgment were intact. In December 2015 the Veteran reported panic attacks that last for 15 minutes whenever he was in a crowd. The Veteran stated the symptoms resolved once he is out of the crowd. The treatment provider observed grooming and hygiene were fairly good, no tremor or abnormal movement, good eye contact, speech within normal limits, good mood, no homicidal or suicidal ideation, no psychosis, alert, oriented, and insight and judgement intact. The Veteran received a VA examination in January 2016. He continued to report frequent/distressing symptoms of intrusive memories, avoidance, negative moods, and increased arousal/reactivity consistent with his previous diagnosis of PTSD. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The Veteran stated he lives with his girlfriend and their two-year-old daughter. The Veteran has three sons from a previous marriage, whom he sees regularly on alternating weekends and holidays. He reported a generally positive relationship with his children. He indicated that his relationship with his girlfriend was strained due to finances and irritability. The Veteran reported limited activities outside of the home due to social anxiety. He has no close friends and only socializes with family. He spends his time playing computer games. The Veteran had not worked since his 2014 VA examination and was taking online college classes in cyber operations. He was starting his sophomore year at the time of the examination. The Veteran indicated his preference for remote classes due to his desire to avoid interactions with other students in a classroom. The examiner determined the Veteran had occupational and social impairment due to mild or transient symptoms. The Veteran returned to VA mental health treatment on June 2016. The Veteran reported up and down mood but denied suicidal and homicidal ideation. The treatment provider observed grooming and hygiene were good, no tremor or abnormal movement, good eye contact, speech within normal limits, mood up and down, affect euthymic, no homicidal or suicidal ideation, no psychosis, alert, oriented, and insight and judgement appeared intact. A different mental health treatment provider observed an anxious mood but affect inconsistent with mood. The Veteran complained of short term memory difficulty. In a June 2016 statement, the Veteran endorsed anger towards others, flashbacks, nightmares, sleep impairment, difficulty remembering, names, dates, appointment, and taking medication. The Veteran stated his fiancé must remind him to take his medication. In July 2016, the Veteran reported to the emergency room with shortness of breath for the last three days. The Veteran indicated his symptoms were getting worse with the fireworks and endorsed irritability. The treatment provider determined the shortness of breath was caused by anxiety. The Veteran was prescribed new medication and instructed to follow-up with mental health treatment. In September 2016, the Veteran reported having custody issues with his ex-wife and being suspended from school because of difficulty learning. The Veteran endorsed symptoms of irritability and flashbacks. The treatment provider observed a good mood, no homicidal or suicidal ideation, no psychosis, alert, oriented, and insight and judgement intact. In December 2016 the Veteran reported good mood and no symptoms of depression. The Veteran endorsed enjoyment spending time with his family and stated his significant other is very supportive. The mental health provider did not observe any changes in mood or behavior and noted the Veteran’s positive outlook. In March 2017 the Veteran reported gaining custody of his children. He stated that he has been enjoying spending time with them and taking care of them. The Veteran reported symptoms of sleep impairment and anxiety in crowds. His anxiety prevented him from attending a concert but he stated his significant other was very supportive. The mental health provider did not observe any changes in mood or behavior. The Veteran received a private psychiatric assessment in April 2017. The private provider noted his extensive psychiatric history including multiple past suicide attempts (attempting hanging and overdose) and two subsequent psychiatric hospitalizations. The Veteran indicated that part of the reason for his leaving employment in 2014 was due to loud bangs that would occur over the course of the work day that would cause him to have flashbacks. The Veteran also endorsed problems with anger and irritability directed towards his supervisors. The Veteran at one point alleges that he threatened to kill a worker who came to his house, but that his anger has lessened significantly since that time. The Veteran endorsed symptoms related to his PTSD of hypervigilance, emotional volatility, intrusive ideation, and night terrors. The examiner diagnosed the Veteran with PTSD, rule-out generalized anxiety disorder, and rule-out major depressive disorder. The examiner indicated that, due to the comorbidity of the Veteran’s psychiatric disabilities, it was impossible to separate symptoms out from one another. The private provider opined that the Veteran’s psychiatric symptoms result in occupational and social impairment with deficiencies in most areas, including work, school, family, judgment, and mood since at least 2013. Since that year, it was noted that the Veteran’s medical records consistently document anxiety, interpersonal withdrawal, increased depressed mood, panic attacks, survivor’s guilt, irritability, anger, insomnia, and sleep interruption. The examiner further explained that the Veteran’s difficulties at work and school, in interacting with people, as well as decreased social engagements, and the difficulties that such isolation creates within his immediate family all stem from the Veteran’s PTSD symptoms. The Veteran missed an appointment in August 2017 and returned to VA mental health treatment in September 2017. The Veteran endorsed that he was working part-time as a U.S. Postal service worker. The Veteran reported having more nightmares recently. The treatment provider observed a tired mood with apathetic quality and noted judgment and insight fair. In December 2017 the Veteran endorsed depression, anxiety, nightmares, and forgetting to take medication. The Veteran stated he stopped working as a postal worker because of anxiety and knee pain. The Veteran also reported that his 80-year-old grandmother came to live with him but that she can be depressing. The treatment provider noted some intrusive paranoid thoughts that have subsided since the Veteran left his job. The provider determined memory grossly intact, speech normal, thought process logical, no suicidal or homicidal ideations, and judgement and insight good. In March 2018 and May 2018, the Veteran reported doing okay. The treatment provider noted an anxious mood but no others changes in behavior. In May 2018 the Veteran endorsed increased energy with medication change. In August 2018, the Veteran stated he was stressed out and expressed frustration with his current financial situation. The Veteran endorsed symptoms of anxiety, depression, suicidal ideation, irritability, flashbacks, and memory difficulty. The provider determined that the suicidal ideation were fleeting thoughts but no risk. The Veteran stated he would not act on his thoughts because of his family. The provider observed normal speech, normal and logical thought process, no homicidal ideation, no hallucinations, depressed and anxious mood with congruent affect, and judgement and insight fair. The Veteran missed a recent appointment in September 2018. Based on a thorough review of the evidence of record, including the Veteran’s lay statements, the Board finds that the evidence of record reflects that the Veteran’s PTSD symptoms during the entire claims period do not warrant an evaluation of 100 percent. The VA treatment records, VA examination, and private examinations demonstrate significant but not total social and occupational impairment. First, the Veteran does not have total social impairment. The Veteran maintains an enjoyable relationship with his children. The Veteran consistently endorsed that his significant other was supportive and reminds him to take medications. Additionally, the Veteran has a relationship with his grandmother. Second, the Veteran does not have total occupational impairment due to PTSD symptoms. The Veteran went to school full-time and worked as a postal worker part-time. Furthermore, the Veteran’s symptoms are contemplated by the 70 percent rating criteria, despite reports of suicidal ideations. The evidence of record does not demonstrate that the Veteran experienced gross impairment in thought processes or communication or persistent delusions or hallucinations. The findings did not show grossly inappropriate behavior or a persistent danger of hurting himself or others. The evidence of record does not indicate that the Veteran had an intermittent inability to perform his activities of daily living, including minimal personal hygiene. He was described as oriented to time and place and there is only mention of mild memory loss that presented difficulty in school, without the loss of the names of his close relatives, his own occupation, or his own name. The Board finds that the symptoms, although significant, do not more nearly approximate the criteria for a 100 percent evaluation and are not of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. Accordingly, a 100 percent evaluation is not for assignment. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel