Citation Nr: 18160894 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-23 973 DATE: December 28, 2018 ORDER An increased initial rating of 30 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT For the entire period on appeal the Veteran’s PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency due to suspiciousness, although he generally functions satisfactorily. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, but no higher, for PTSD are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1966 to May 1969. This matter is before the Board of Veteran Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which awarded service connection for PTSD and assigned an initial rating of 10 percent. The Veteran declined a hearing through his Form 9 filing and has been unrepresented throughout his claim. He was advised of his right to change, submit additional evidence, or additional argument through a letter sent by the Board in March 2017. VCAA Analysis The Board Veteran alleged in his Notice of Disagreement that the use of 38 CFR § 3.304(f) violated his rights under the VCAA and his 5th Amendment rights. The Board will review the steps taken pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). The Veteran filed his claim using VA Form 21-526EZ for fully developed claims. Under the framework for a fully developed claim, a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to his or her claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the Veteran with a VA medical examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. The fully developed claim form includes notice to the Veteran of what evidence is required to substantiate a claim for service connection and of the Veteran’s and VA’s respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. See id. Thus, in this case, the notice that is part of the claims form submitted by the Veteran satisfied the duty to notify.   VA also has a duty to assist a Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes obtaining “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159 (c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159 (c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159 (c)(4). Here, the record reflects that VA made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran’s Service Treatment Records (STRs), Military Personnel Record, VA examination report, private medical report, the Veteran’s lay statements, statement in support of claim as to in-service stressor, and a lay statement submitted by the Veteran from his wife. The Veteran was notified of his right to change representation, submit additional evidence, or additional argument to the Board prior to his appeal being decided. The Veteran has not identified any further outstanding evidence, to include any other medical records which could be obtained to substantiate his appeal and did not indicate any specific deficiency in the duty to assist in obtaining records. The Court has also held that VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA examination to evaluate his PTSD in August 2015. The Board also reviewed the private examination records submitted by the Veteran. While the Veteran contends that the C&P examination was inadequate,   the Board finds that the examination is adequate to evaluate the Veteran’s service-connected PTSD as they include interviews with the Veteran, a review of his service personnel records, service treatment records, wife’s statement in support of his claim, separation records, civilian medical records, and a full examination, addressing the relevant rating criteria. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no objective evidence indicating that there has been a material change in the severity of the Veteran’s service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran’s claim and that no further examination is necessary. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). 1. Increased initial rating for PTSD The Veteran filed a timely Notice of Disagreement (NOD) to the August 2015 rating decision that assigned a 10 percent rating for his PTSD. He argues that the initial rating should have been 100 percent. The Veteran also contends that the rating decision was based on VA’s Compensation and Pension (C&P) examination and failed to consider the private exam he had underwent. The Board notes that the C&P examiner found that the Veteran had a diagnosis of PTSD and the Veteran disagrees with the rating assigned by the RO based in part on that examination. In deciding the appropriate evaluation for the Veteran’s PTSD, it is the responsibility of the Board to consider all the evidence before it and to weigh that evidence. See Evans v. West, 12 Vet. App. 22, 30 (1998).   A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 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. If 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. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S. C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which is rated under the General Rating Formula for Mental Disorders (General Rating Formula). A 10 percent rating under this diagnostic code is associated with occupational or 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 continuous medication. Under the General Rating Formula, a 30 percent rating is warranted when there is 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 often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where the disorder is manifested by 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 affected 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned 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; 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2017). Ratings of psychiatric disabilities shall be assigned 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.   Further, ratings are assigned according to the manifestation of particular symptoms. However, the various symptoms listed after the terms “occupational and social impairment with deficiencies in most areas” and “total occupational and social impairment” in 38 C.F.R. § 4.130 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). Evidence presented regarding Veteran’s PTSD symptoms The Veteran currently has a 10 percent rating for PTSD and seeks a higher evaluation at this time. The Board first considers the information provided by the Veteran in relation to his claim. The Veteran reported that he had a close relationship with his family and a friend he served with in Vietnam. See Nov. 2014 Psychological Evaluation at 2, 4. He further described having little patience with his supervisors at work. See C&P exam at 3. He has worked at a pipefitters union for nearly 20 years and has been in the same field for over 40 years. Id. He indicated he had a number of jobs during this time, due in part to being fired from some due to disagreements with management. He reported being very good at his job and highly in demand. While he has had a number of different jobs, he indicated this is not uncommon in his industry. Id. He indicated he drank a good deal in his thirties which led to legal problems, but that he quit drinking approximately 30 years ago. Id at 4. The Veteran also reported that he loses his temper easily. The Veteran is competent and credible to report his history and his symptoms, and the Board assigns them significant weight. The Veteran’s wife submitted a statement in support of the Veteran’s claim. His wife is in a unique position to describe the effects of the Veteran’s PTSD based upon having known him before and after service and her statements are highly probative. Prior to his service she described her husband as being a very good student with a lot of potential, involved in numerous activities, and having a number of good friends. She indicated that after his service the Veteran lost his focus and was unable to complete school or stay at a job. She explained that he had problems with his employers and would quit or be fired as a result of always looking for something better or getting into arguments with bosses. She indicated he only had one friend that he visited regularly at a VA nursing home. She also indicated that he volunteers every week at the USO. The Veteran’s wife stated he seemed depressed to her, sometimes staying in bed the whole day. She indicated that she feared he was going to commit suicide in the past, but did not indicate this was a current concern. She described that he had a negative outlook on life and was afraid of losing family members, texting her frequently and other family members every day to check in on them. He has a difficult time in leaving family after visiting them according to her. She described his violent temper, indicating he becomes easily frustrated. She reported he had hit her twice in the past and had punched holes in the wall of their house. The Veteran’s wife is competent and credible in her lay observations of the Veteran’s symptoms. The Veteran submitted a Report of Consultation and Examination from a chiropractic physician with his claim of service connection for PTSD. This report lists numerous symptoms that the examiner linked to the Veteran’s PTSD, ( i.e. insomnia, anxiety, anger, isolation, memory loss, depression, etc.). While the examiner contends these symptoms are connected to the Veteran’s PTSD, he did not indicate on what basis or findings he linked these symptoms to the Veteran’s PTSD. The examiner indicated he did not treat PTSD patients and would defer to the appropriate mental health professionals with regards to the Veteran’s PTSD. There is no indication that the examiner providing the report has the necessary mental health background to diagnose PTSD or associate symptoms with the Veteran’s condition. Based upon the examiner’s own statements of deferring to the expertise of mental health professionals regarding PTSD the Board will assign no weight to this report.   The Veteran has had 2 psychiatric evaluations. In November 2014 the Veteran underwent a private psychological evaluation prior to the filing of his claim. The findings of this evaluation are based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). The Board notes that after August 4, 2014, VA’s Rating Schedule that addresses service connected psychiatric disabilities was to be based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V) and as such the Global Assessment of Functioning (GAF) score assigned will not be addressed by the Board. Golden v. Shulkin, U.S. Vet. App. No. 16-1208, 38 C.F.R. § 4.125. The August 2015 VA examination was based on the DSM-V criteria and the diagnosis of PTSD was confirmed and meets the requirements of 38 C.F.R. § 4.125. The Board finds both examiners to be competent and credible in their findings and will review the symptoms described by each examiner in determining an appropriate evaluation of the Veteran’s condition. During his 2014 private psychological evaluation the Veteran reported having a short temper, a past history of alcohol abuse, legal troubles, and past employment problems. The Veteran also reported previous marital problems. The Veteran noted one prior marriage counseling session, but denied any prior history of mental health treatment. He had difficulty describing his experience in Vietnam according to the examiner and was found to be hypervigilant. He described himself as not having a really high or really low mood most of the time. The Veteran noted past suicidal and homicidal ideation, but denied any present ideation. He described a history of panic attacks, but the examiner found them to be entirely attributable to stress reactions and did not find the criteria for a current diagnosis of panic disorder to be met. The examining psychologist found that the Veteran had a diagnosis of PTSD and depression, including anhedonia. He noted that the Veteran suffered from intrusive thoughts, and depressive symptomology which overlapped with his trauma related   symptomology. The psychologist indicated the Veteran experienced hypervigilance in the form of maintaining awareness of his surroundings. The Veteran was oriented to time, place, and person according to the psychologist. His speech and thought were observed to be normal during the examination. The psychologist found that the Veteran’s attention capacity, immediate memory, memory for recent events, and past events all fell within normal limits. His remote memory was found to be intact and his intelligence and fund of information was above average. His concentration, judgment and insight fell below normal limits. The Veteran was administered the Montreal Cognitive Assessment and the only difficulty noted was slight trouble with delayed recall. He noted the Veteran had problems with authority figures and this often presented itself at work. The psychologist noted problems with impulse control due to verbal outbursts and gave his opinion this was likely to lead to problems with employment. During the 2015 C&P examination the Veteran reported that his marriage was good and denied any problems in his relationships with his children. He described his leisure activities and reported he is kept busy between them and his job. He indicated he had been with the same union for 20 years and has had approximately 15 jobs over a 43-year career. He indicated this was not uncommon for his industry, but that he had been fired due to disagreements with bosses in the past. The Veteran also reported a recent incident of conflict with a boss. He indicated he is one of the best in his field. He denied missing work due to PTSD or other mental health issues and denied having panic attacks. He denied any problems with attention or concentration. He also denied any homicidal or suicidal ideation. He described his mood as not real high or real low most of the time. He did not report disturbed sleep, but did note some anxiety when he sleeps in on the weekends. He indicated he was capable of managing his own finances and described his memory as normal. He indicated he had been prescribed Valium in the 1970’s, but had no prior mental health treatment and has been prescribed no other mental health medications since that time.   The C&P examiner found that the Veteran experienced suspiciousness. He was attentive, and his thoughts were generally linear, relevant and logical according to the examiner. His mood was stable and his affect was congruent. The examiner found that the Veteran had prolonged psychological distress and avoided distressing memories, thoughts or feelings relating to his trauma. She also found he had irritable behavior and angry outbursts and noted that he had detachment or estrangement from others. The examiner noted that the Veteran had mild or transient symptoms which decreased work efficiency. There are no further treatment records that are a part of the record at this time. Analysis of Veteran’s Rating As noted above, PTSD is currently rated as 10 percent disabling. A 10 percent rating is assigned for occupational or 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 continuous medication. Regarding a rating of 30 percent for the Veteran’s PTSD, he was noted to have symptoms of suspiciousness during the August 2015 C&P examination. Based on the 2014 psychological evaluation, the Board notes the Veteran has a history of infrequent panic attacks that were entirely attributed to stress reactions. The Veteran generally appears to function well as evidenced by his ability to perform well and maintain a position with his union consistently for the past 20 years. He was noted to have mild memory problems based on the 2014 examination. Regarding occupational and social impairment, the Veteran has had approximately 15 different jobs in his field over a 43-year career. He further indicated that he was fired in the past for being cantankerous. His wife indicated he had been fired a number of times and that he changed jobs frequently and has had problems with nearly all his bosses. While the Veteran’s wife noted the troubles caused by his temper, it appears the Veteran has a good relationship with his family, has a close friend he visits frequently, and is able to volunteer on a regular basis. The Veteran is highly competent at his job and has been able to maintain a long career in his industry. He generally functions well in most aspects of his life, but has displayed periods of an inability to control his temper that have resulted in lost jobs and problems at work. These symptoms appear to be greater than merely mild or transient as they continue to cause problems at work presently as described by the argument he had with his boss. The Board finds based on the evidence that the rating criteria for 30 percent under DC 9411 have been met. The weight of the evidence is against a finding that the PTSD disability picture more closely approximates the criteria for the next higher 50 percent rating under DC 9411 for any period. PTSD symptoms are not of the frequency, severity, and duration contemplated by the schedular criteria for the 50 percent rating. The Veteran’s PTSD symptoms do not cause occupational and social impairment with reduced reliability or productivity. The Veteran was oriented to time, place and person upon examination. His speech was normal upon examination in 2014. His short and long-term memory were intact with only mild problems per the 2014 examination. While the 2014 examination notes that his judgment and impulse control were below normal limits it does not appear this currently affects his work noticeably as he is high demand. He has a history of panic attacks, but does not meet the criteria for a current diagnosis based on the 2014 examination and reported he has not missed work due to mental health issues in the 2015 exam. The Veteran reported being one of the first at work and one of the best in his field during the 2015 C&P exam. The Veteran has been employed in the same field for over 43 years and has been with the same union for 20 years. The Veteran has been married for over 44 years and has a relationship with all his children. The Veteran has established and maintained work and social relationships based upon these reports. Based on these findings and reporting the preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The weight of the evidence is also against a finding that the Veteran’s PTSD disability picture more closely approximates the criteria for a 70 percent rating under DC 9411 for any period. PTSD symptoms are not of the frequency, severity,   and duration contemplated by the schedular criteria for a 70 percent rating, and PTSD symptoms do not cause occupational and social impairment with deficiencies in most areas. He has maintained a steady work history through the pipefitters union and described himself as very skilled at that work. The Veteran denied having suicidal ideation in the 2014 and 2015 examinations. His thoughts were found to be logical in the 2015 examination and fell within normal limits during the 2014 exam. The 2015 examiner did not note any problems with the Veteran’s hygiene. The Veteran’s speech was normal in the 2014 exam and his thoughts were noted to be linear, relevant and logical in the 2015 examination. While the Veteran’s impulse control was evidenced by his legal problems and substance abuse in the 2014 exam it appears from the record that the legal problems were from prior to his claim while the Veteran was drinking heavily. The Veteran did not have disturbances of sleep other than a report of anxiety when awakening late on the weekends per the 2015 examiner. It does not appear there is a recent history of violence (within the claim period) from either examination. Cognitive impairment is not shown to substantially interfere with his work. The Veteran has been married for over 44 years and has good relationships with his children. He has been able to maintain employment with the same union for a considerable time. For these reasons the preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The weight of the evidence is also against a finding that the PTSD disability picture more closely approximates the criteria for the next higher 100 percent rating under DC 9411 for any period. PTSD symptoms are not of the frequency, severity, and duration contemplated by the schedular criteria for the 100 percent rating, and PTSD symptoms do not cause total occupational and social impairment. The Veteran suicidal ideation in the 2014 and 2015 examinations. His thought process was found to be logical in the 2015 examination and fell within normal limits during the 2014 exam. He was not reported to experience impairment in thought processes or communication or to be experiencing delusions or hallucinations in either exam. His mood was noted to be normal and no grossly inappropriate behavior was noted. The 2015 examiner did not note any problems with the Veteran’s hygiene. The Veteran’s speech was normal in the 2014 exam and his thoughts were noted to be linear, relevant and logical in the 2015 examination. The Veteran was oriented to time, place, and person and there was no memory loss reported. The Veteran has been able to secure employment and has been with the same union for 20 years. He has also been able to maintain a marriage for over 40 years and relationships with his children. Based on these findings the preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Veteran and his wife detailed the difficulties his PTSD has caused in the past the Board has considered the present level of disability from the time of his claim. Based upon the evidence and current impairment caused by the Veteran’s PTSD a 30 percent rating is the most appropriate rating and the preponderance of the evidence is against a higher rating for any period on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Middleton, Associate Counsel