Citation Nr: 1806740 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-31 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 2000 to June 2005. This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2016, a travel Board hearing was held before the undersigned in Winston-Salem, North Carolina. A transcript of the hearing is associated with the Veteran's claims file. The issues regarding the initial rating awarded for migraine headaches and the denial of service connection for obstructive sleep apnea have been appealed by the Veteran and his representative, but are currently under development by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of an increased rating for PTSD was addressed in a July 2016 remand by the Board. At that time the matter was remanded for further development of the evidence. This has been accomplished and the case has been returned for further appellate consideration. FINDING OF FACT Throughout the appeal, the Veteran's PTSD has been primarily manifested by symptoms of anxiety; depression; panic attacks; nightmares; daily intrusive thoughts; avoidance behaviors; and arousal symptoms such as irritability, hypervigilance, concentration problems, and an exaggerated startle response; as well as disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships and impaired impulse control that is productive of social and industrial impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an increased rating in excess of 50 percent for PTSD have not been met for any period. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code (Code) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by a letter dated in October 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA PTSD examinations, most recently in January 2018. The Board finds that the opinions obtained are adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2017). Increased Rating Laws and Regulations 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 (2017). Where there is a question as to which of two evaluations shall be applied, the higher rating 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 (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2017). The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). PTSD Service connection for PTSD was granted by the RO in a February 2006 rating decision. A 10 percent initial disability rating was awarded under the provisions of Code 9411. The rating was increased to 50 percent in the November 2010 rating decision that gave rise to this appeal. A 50 percent rating is warranted for occupational and social impairment with reduced reliability, and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideations; 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 worklike settings); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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, Code 9411 (2017). The regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. In this decision, the Board considered the rating criteria not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples or symptoms "like or similar to" the Veteran's PTSD symptoms in determining the appropriate schedular rating assignment. Ratings are assigned according to the manifestation of particular symptoms. The Board has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 21-30 reflects that behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). A score of 31-40 is assigned where there is "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work)." DIAGNOSTIC AND STASTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 41-50 is assigned where there are "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A score of 51-60 is appropriate where there are "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers." Scores ranging from 61-70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household). Id. (The Board notes that GAF scores are not utilized in the current DSM manual (DSM-5). An examination was conducted by VA in October 2010. At that time, it was noted that the Veteran took anti-depressant and anti-anxiety medication. He stated that if he skipped his medication, he became angry toward his family. He did not take part in psychotherapy, but stated that he was to begin attending a PTSD group in November 2010. He stated that he continued to have nightmares, but that his medications helped somewhat with his anger and irritability levels. On examination he was clean, neatly groomed, appropriately dressed, but tense. Speech was unremarkable. Affect was constricted. Mood was dysphoric. He became tearful when talking about his experiences in Iraq. He reported increased concentration and attention problems. He said that he forgot information that people told him and that it was difficult for him to retain information. He was oriented to person, time and place. Thought process and content were unremarkable. There were no delusions. The Veteran understood the outcome of his behavior. The Veteran had sleep impairment, stating that he averaged three to four hours per night, with difficulty falling and staying asleep. He had nightmares about Iraq, three to four times per week. There were no hallucinations, he was able to interpret proverbs appropriately and there were no inappropriate behaviors. He did have obsessive or ritualistic behavior in that he checked his shotgun daily. He described panic attacks, stating that they were "intense anger" to the point where he almost blacked out. He did not meet the criteria for a separate diagnosable panic disorder. He had no homicidal thoughts, but did have suicidal thoughts while in Iraq, but denied suicidal ideation since his return from deployment. Impulse control was good. He was able to maintain minimal personal hygiene. He described having lost interest in activities that he used to enjoy such as going to restaurants, due to hypervigilance. Recent memory was mildly impaired. The diagnosis was PTSD. His GAF score was 60. He described two re-experiencing symptoms of nightmares (3-4 times per week) and daily intrusive thoughts. He also had three avoidance symptoms, including avoiding conversations about his trauma, feeling detached from others, and decreased interest in activities he used to enjoy. His arousal symptoms included sleep problems, irritability, hypervigilance, concentration problems, and an exaggerated startle response. An examination was conducted by VA in September 2016. At that time, the diagnosis was PTSD. The examiner described the Veteran's level of occupational and social impairment as 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. It was noted that he lived with his wife of five years and their two year old son. He described his relationship as good, although he is irritable at home. He enjoys restaurants and going out with his family, but was bothered by crowds and fireworks when he went to the beach over the summer. Regarding his occupation, he was a truck driver who drove locally. He had been with the same company for one year and had done well. He had had no inpatient admissions, but was receiving outpatient treatment. He denied suicidal or homicidal ideation, but did report passive thoughts of death. He met all of the diagnostic criteria for a diagnosis of PTSD. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and a difficulty establishing and maintaining effective work and social relationships. In regard to occupational functioning the Veteran presented with mild to moderate degree of impairment. He was considered capable of working and by his report his current employment provided an environment that resulted in success. He had been employed in the same job for one year and was the new driver trainer as well as being assigned to delivery routes. An examination was conducted by VA in January 2018. At that time, the diagnosis was PTSD. His occupational and social impairment was summarized as being with reduced reliability and productivity. He had lost his job in April 2017 because he would fall asleep secondary to sleep apnea. He currently drove intermittently for Uber. He reported progression of his symptoms in relation to PTSD. He had previously participated in therapy and had not benefited from psychotropic medication. He met all of the diagnostic criteria for a diagnosis of PTSD. Symptoms related to PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control such as unprovoked irritability with periods of violence. The Veteran was alert and oriented. He appeared to provide an accurate history and insight was adequate. Auditory comprehension was intact and response times were normal. Affect was congruent to mood. Thought processes were linear and coherent. He was not distractible. Spontaneous speech was fluent, grammatic and free of paraphasia. Immediate, recent and remote memories appeared within normal limits. Suicidality and homicidality were denied. Since the effective date of the 50 percent rating for PTSD, which was awarded coincident with the current appeal, the Veteran's disability has been primarily manifested by symptoms of anxiety; depression; panic attacks; nightmares; daily intrusive thoughts; avoidance behaviors; and arousal symptoms such as irritability, hypervigilance, concentration problems, and an exaggerated startle response. On examination in September 2016, the Veteran was noted to have symptoms of a depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and a difficulty establishing and maintaining effective work and social relationships. The examiner characterized the Veteran's impairment as productive of 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. In January 2018, additional symptoms such as impaired impulse control and unprovoked irritability with periods of violence were noted, with the examiner characterizing the Veteran's impairment as productive of reduced reliability and productivity. While some of this symptomatology is noted in the criteria for a rating of 70 percent, the Board does not find that the symptoms cause deficiencies in most areas, such as work, school family relations, judgment, thinking or mood. The Veteran does not report suicidal ideations and while he does have an obsessional ritual of checking his shotgun nightly, this is not shown to interfere with his routine activities. While he has complaints of panic attacks, these are not shown to be near continuous in nature. His depression is not shown to affect his ability to function independently. There is no evidence of spatial disorientation or neglect of personal appearance or hygiene. The Veteran no longer participated in regular therapy sessions or took medication for his psychiatric disability. The severity, frequency and duration of the Veteran's PTSD symptoms more nearly approximate the level of occupational and social impairment described for a 50 percent evaluation. Given the symptoms described in the VA examinations in the record, the Board finds that the criteria for a rating in excess of 50 percent have not been met and the appeal must be denied. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating for PTSD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 50 percent for PTSD is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs