Citation Nr: 1806907 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-10 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a higher initial rating for service-connected posttraumatic stress disorder (PTSD), currently rated as 30 percent disabling prior to October 30, 2014 and 50 percent disabling thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1996, including decorated combat service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington that granted service connection for an anxiety disorder and assigned a 10 percent initial rating. In January 2014, the RO changed the disability diagnosis to PTSD and assigned a 30 percent initial rating for PTSD. In December 2014, the Veteran had a Decision Review Officer (DRO) hearing. A hearing transcript is of record. In December 2015, the RO granted a 50 percent initial rating for PTSD from October 30, 2014. The Veteran requested a Board hearing, but withdrew his request in June 2015 and February 2016 correspondences. FINDINGS OF FACT 1. Prior to July 1, 2013, the evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran's service-connected PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas, but they did not more nearly approximate total occupational and social impairment. 2. From July 1, 2013, the evidence is at least evenly balanced as to whether the symptoms and impairment caused by the Veteran's PTSD more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to July 1, 2013, the criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. From July 1, 2013, with reasonable doubt resolved in favor of the Veteran, the criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.125, 4.126, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran was appropriately notified about the information and evidence needed to substantiate the claim in an April 2012 letter. The Veteran has not asserted prejudice from any notification deficiency and none has been identified by the Board. The duty to notify is satisfied. In addition, VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and affording him VA examinations, most recently in June 2015. The Board has considered the Veteran's objections to the April 2012 and October 2014 VA PTSD examinations. To address his objections, the Board has preferred his reports concerning PTSD symptoms over the assessments found in these VA examination reports and granted increased ratings. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (VA must give due consideration to pertinent lay evidence). Thus, the Veteran is not prejudiced by any deficiency in the prior VA examinations. The Board notes references to Social Security Administration (SSA) payments and outstanding counseling records. The Veteran does not otherwise indicate that he is in receipt of SSA disability benefits for psychiatric disability or that he wanted these records considered in the instant adjudication. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). Then, in a June 2015 report the RO inquired about private counseling records for PTSD treatment. He responded that he did not want these records considered. Given the above, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. A remand for further development would not raise any reasonable possibility of substantiating entitlement to additional benefits than those granted in the instant decision. Winters v. West, 12 Vet. App. 203, 208 (1999) (en banc) ("[A] remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the [Board] without the possibility of any benefits flowing to the appellant."); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"); 38 C.F.R. § 3.159(d). II. Higher ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The Veteran's PTSD is currently evaluated as 30 percent disabling prior to October 30, 2014 and 50 percent disabling thereafter under 38 C.F.R. § 4.130, DC 9411. All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders. Under the general rating formula, a 30 percent evaluation is assigned for 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 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; 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 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 an 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. A total schedular rating of 100 percent 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, DC 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In his October 2011 claim, the Veteran reported he had PTSD due to Vietnam War stressors. In April 2012, the Veteran underwent a VA PTSD examination. The examiner diagnosed an Anxiety disorder with a GAF of 85. Currently, the Veteran reported living alone following his 2006 divorce. He had been dating another woman, but they had no intentions of marrying. The Veteran said he had several good friends, including one who drove him to the appointment. The Veteran did not drive, but denied anxiety as a reason for doing so. He recounted numerous stressors from his many years in active service. Following service, he had been working at Home Depot for 16 years. He earned the title Master Gardener. He recently started working part time due to being eligible for SSA benefits. Prior to working part time, he was a department head, but found it too stressful and requested his current part time status. He denied a history for any mental health treatment. During service, he avoided seeking medical care for fear of being labeled a malingerer and continued to avoid medical treatment. Quantitative testing was administered with sub-PTSD threshold symptoms found. Mental status examination (MSE) showed the Veteran to have grossly normal functioning. The examiner diagnosed anxiety disorder related to combat stressors. She reported that the avoidant symptoms and the intensity of most symptoms were too limited for a PTSD diagnosis. In January 2013, the Veteran filed a notice of disagreement. He reported having significant hypervigilance and startle response symptoms due to combat stressors. He avoided seeking medical care due to his military stressors and was experiencing a great amount of stress filing the instant claim. His intrusive memories had become more vivid and difficult to suppress. He believed his avoidant behavior was large factor in his 2006 divorce. He also objected to the April 2012 VA examination. He reported that the examiner did not fully consider his service history, nor properly interview him about his current symptoms. He said she interrupted the examination by taking two cell phone calls. He reiterated that he continued to graphic, instructive Vietnam combat memories that caused significant symptoms. Also in a January 2013 report, his ex-wife stated that the Veteran had PTSD symptoms for many years, notably sleep disturbances, depression, severe memory impairment, self-isolation, and avoidant behaviors, particularly with medical care. In his February 2014 substantive appeal, the Veteran reported that he had impaired short and long term memory, judgment and thinking. He struggled with motivation, relationships and finding another job. He had difficulty finding work due to panic attacks with customers and forgetfulness. He indicated his panic attacks were precipitated by his forgetfulness. His forgetfulness had become so severe that he would essentially have no recollections of certain events. Recently, he had irritable episodes with others and could only recall being at home alone with no idea of how he arrived or any prior argument. In October 2014, a psychologist completed a PTSD Disability Benefits Questionnaire (DBQ) for the Veteran. He diagnosed PTSD. He assessed the level of occupational and social impairment as consistent with occasional decreases in work efficiency. The Veteran was single and spent a considerable amount of time alone. He had contact with friends, but indicated he sometimes alienated others with his comments. Following service, the Veteran worked at Home Depot for many years, but had recently left due to a disagreement with his manager. He had been looking for another job without success. He reported that his PTSD symptoms dated to Vietnam and had varied over time. However, they had increased since he filed the instant claim due to having to chronicle his stressors. He now had constant nightmares, sleep disturbances and excessive startle response due to the stressors. The examiner reported how the Veteran's symptoms met the PTSD criteria. He listed the current symptoms of depressed mood and anxiety. He advised the Veteran to seek outpatient treatment. In December 2014, the Veteran had a DRO hearing. He reported recently leaving his longstanding job at Home Depot due to interpersonal conflicts with both supervisors and customers. Currently, he was single. He reported having only one friend and no family relationships. He recounted difficulty managing medications by himself. Due to an accidental medication mix up, he had a dissociative episode where he ransacked his house. He asserted his most recent VA examination was inadequate since the examiner did not fully assess his current symptoms and much of the time was spent correcting prior information that had been erroneously recorded. He reported that he had violent ideations and had greater difficulty with impulse control. He reported applying to a wide variety of jobs. He stated that once employers learned about his PTSD condition they stopped the interview process. In June 2015, another PTSD DBQ was completed. The examiner assessed the Veteran's PTSD symptoms as causing occupational and social impairment with reduced reliability and productivity. The Veteran continued to be single and live alone. He had hobbies of gardening, drawing and collection coins. He reported isolating himself due to his irritable outburst that negatively affected his friendships. He had not found another job. He reported applying for 35 to 40 jobs. However, his irritability episodes prevented him from being hired. He had tried outpatient counseling, but lost trust in the counselor after she disclosed his treatment history. He was not on any medication. He reported having panic attacks 3 to 4 times per week. Currently, he regularly had nightmares. He described memory lapses, as blackout episodes where he would wake up in another room in his house and not remember how he got there. He had episodes of disorientation to time and space nearly 3 times per week. He was unable to sleep with the lights off or in a silent room. The examiner listed the symptoms of depressed mood, anxiety, suspiciousness, panic attack more than once a week, chronic sleep impairment, disturbances of motivation and mood and disorientation to time or place. The examiner reported that his observations of the Veteran were notable for a dysphoric mood. Although the Veteran denied audio/visual hallucinations, the blackout symptoms were noted. The blackout episodes were described as the Veteran losing track of time and awakening in a different area of his house or having dissociative episodes while being at the mall. The Veteran contends that higher ratings are warranted for service-connected PTSD. In this case, the Board will apply the benefit of the doubt doctrine to find that the frequency, severity and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas prior to July 1, 2013 and total occupational and social impairment from that date, as explained below. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. 1. Prior to July 1, 2013 During this period, the frequency, severity and duration of PTSD symptoms more closely approximate deficiencies in most areas of occupational and social function. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. The Board considers the Veteran and his ex-wife's reports to be competent and credible evidence of PTSD symptoms of a greater severity than reflected in the contemporaneous VA examination report. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). The severity of PTSD symptoms described by the Veteran and ex-wife suggest that the Veteran had great difficulty interacting with others, severe memory impairment, isolative behaviors, panic attacks, among other symptoms. The Board has considered the April 2012 VA examination report suggesting substantially less severe symptoms. Although the report appears superficially complete, the Veteran objected to its adequacy and it conflicts with the Veteran's and his former spouse's description of impairment from PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Caluza, 7 Vet. App. at 506. The Board does not find it persuasive. The Board declines to assign a total rating since the Veteran continued to be employed. His employment weighs against a finding that symptoms and impairment more nearly approximated total occupational impairment. His difficulties interacting with supervisors and customers prior to leaving work have been considered. However, the fact that he continued to work even on a part time basis during this period supports the conclusion that the symptoms and impairment did not more nearly approximate total occupational impairment. For the above stated reasons, an initial rating of 70 percent prior to July 1, 2013 is warranted for service-connected PTSD. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. 2. From July 1, 2013 During this period, the frequency, severity and duration of PTSD symptoms more closely approximated total impairment in occupational and social function. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. The competent and credible reports of PTSD symptoms from this period include dissociative episodes and an overall level of impairment that precludes substantially gainful employment. The Board places particular emphasis on reports that the Veteran left his longstanding job and has been unsuccessful at obtaining another job due to unmanageable PTSD symptoms. Although the Veteran has not been hospitalized at any point, the Board considers his reports of no family relationships, isolative behaviors, dissociative episodes and irritable outbursts towards others to more closely resemble total social impairment. Caluza, 7 Vet. App. at 506. The October 2014 and June 2015 VA PTSD DBQ reports that include clinical assessments that the Veteran's PTSD symptoms were less severe than those contemplated by the total rating criteria. However, the Board does not find these reports persuasive due their inconsistency with the above reports about social interaction and occupational history that more nearly approximate total occupational and social impairment. Id. For the above stated reasons, a rating of 100 percent from July 1, 2013 is warranted for service-connected PTSD. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. 3. Additional considerations 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). The Board has considered entitlement to a total disability rating based upon individual unemployability (TDIU) as part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the Veteran reported that he stopped working in June 2013. See December 2014 DRO hearing, p.2. Although he was working part time, it appears the primary reason for doing so was to maximizing SSA benefits. See April 2012 VA examination report, p. 7. He has not asserted, nor does the record otherwise indicate, that his part time employment would qualify as sheltered employment or that it was not substantially gainful. 38 C.F.R. § 4.16(a). For these reasons, substantially gainful employment is demonstrated and entitlement to a TDIU prior to July 1, 2013 is not warranted. From July 1, 2013, the Veteran is now in receipt of a 100 percent rating for PTSD. The Court has held that a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for SMC benefits pursuant to 38 U.S.C.A. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). In this particular case, the Veteran is additionally service-connected for tinnitus, 10 percent disabling and residuals of left hand injury and hearing loss, both rated as noncompensable. There is no indication that these additional service-connected disabilities are productive of unemployability to substantiate an independent TDIU award. In this particular case, entitlement to TDIU from July 1, 2013 is effectively rendered moot by the total rating award for PTSD in the instant decision. See id. ORDER Prior to July 1, 2013, an initial rating of 70 percent, but no higher, is granted for service-connected PTSD, subject to controlling regulations governing the payment of monetary awards. From July 1, 2013, a rating of 100 percent for service-connected PTSD is denied, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs