Citation Nr: 1807747 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-19 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 30 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), for the period from August 12, 2013. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1971. This appeal is before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In June 2016, the Board remanded the Veteran's appeal with instruction to obtain VA treatment records for the period remaining on appeal. The appropriate records have been obtained and are now associated with the Veteran's claims file. The Board is therefore satisfied that the instructions in its June 2016 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT For the period from August 12, 2013, the Veteran's acquired psychiatric disability was not productive of occupational and social impairment with reduced reliability and productivity; of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or of total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for an acquired psychiatric disability, to include PTSD, for the period from August 12, 2013, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks an increased rating for PTSD. Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. 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. § 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Diagnostic Code 9411 of 38 C.F.R. § 4.130 specifically addresses PTSD; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, the Veteran's current 30 percent rating is warranted 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, and 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; and difficulty in establishing 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, 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); and 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). VA treatment records reflect that in November 2013, the Veteran reported that because of pain and poor quality of sleep he was no longer having nightmares. He rated his current depression at 5/10 and anxiety at 2-3/10. Mood was euthymic and anxious, and affect was congruent to mood and responsive. His diagnosis remained PTSD. In January 2014 he rated his depression at 6-7/10 and anxiety at 8-9/10. His mood was depressed and anxious. In March 2014 he reported sleep fragmented by dreams. He rated his depression at 4/10 and anxiety at 3/10. In May 2014 he reported difficulty with motivation and recurrent thoughts about his experience with Vietnam. He stated that he was remaining active and going on bike rides 3-4 times per week. He rated his depression at 5/10 and anxiety at 5/10. In August 2014 he reported continued sleep difficulties and dreams. He reported that he no longer is able to watch the news. He rated his depression at 4/10 and anxiety at 4/10. In October 2014 he reported increased depression with poor motivation and problems making decisions. He continued to have problems sleeping. He rated his depression at 6/10 and anxiety at 6/10. VA treatment records reflect that in January 2015 the Veteran reported continued sleep difficulties. He stated that he was coordinating with other veterans to help plan a World War II commemoration. He rated his depression at 6/10 and anxiety at 6/10. In April 2015 he reported uninterrupted sleep and continued activity in the veteran community. He rated his depression at 8-9/10 and anxiety at 8-9/10; this is likely related to dealing with his son's addiction problems and the recent death of his oldest brother. In July 2015 he reported concern that he had not cried when grieving his brother's death. He reported that he could not remember the last time he cried. He reported continued sleep difficulties. He was working on building a model of the USS Constitution. He rated his depression at 5/10 and anxiety at 5/10. In September 2015 he continued to report concern over how he grieves and began group therapy. In October 2015 he reported nightly dreams. He rated his depression at 5/10 and anxiety at 4/10. In May 2016 he reported progress in dealing with grief. He reported continued dreams. It was noted that he was living with his wife and had no marital difficulties. VA treatment records further reflect that in June 2016 the Veteran underwent a psychosocial assessment. He reported daily nightmares which regularly wake him up. He reported difficulty experiencing and expressing emotions. He attributed recent exacerbation of his symptoms to his retirement, as he now had the time to think about things. He reported regular intrusive thoughts, with feet making him think of toe tags. He stated that he viewed others as untrustworthy and struggles to connect. He reported feelings of survivor's guilt. He was diagnosed with PTSD. The Veteran underwent a VA examination in October 2016. He reported waking up from nightmares and constant intrusive thoughts. He exhibited anxiety and sleep impairment. He reported that his relationship with his wife was good for the most part. He stated his relationship with his children was better with his older child, as the younger was in recovery from drug addiction. He reported that he had 20 friends and enjoyed golfing and dining out with them. He described his general attitude towards socializing as interested. He stated that his typical day was spent managing his health, bike riding, and completing home tasks. Leisure time was spent constructing model trains and ships. He was diagnosed with PTSD productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Board finds that an evaluation in excess of 30 percent is not warranted for PTSD for the period from August 12, 2013. Higher ratings are available for occupational and social impairment with reduced reliability and productivity; for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood; or for total occupational and social impairment. The evidence weighs against manifestations of such severity. The evidence shows that the Veteran has maintained effective relationships with family and friends and leads an active social life. He coordinates with other Veterans to arrange commemorative activities and engages in hobbies and exercise. His symptoms of depression, anxiety, sleep disturbances, intrusive thoughts, and difficulty with grieving are comparable to the symptoms listed in the criteria for his current 30 percent rating. While these symptoms are productive of impairment, it is not the debilitating nature of impairment which warrants a higher rating. Treatment records do not include any descriptions of panic attacks, memory loss, poor impulse control, difficulty with social relationships, impaired judgment, impaired abstract thinking, suicidal or homicidal ideation, flattened affect, or any other symptoms of similar nature and severity. For these reasons, the Board finds that an evaluation in excess of 30 percent is not warranted for PTSD for the period from August 12, 2013. ORDER An evaluation in excess of 30 percent for an acquired psychiatric disability, to include PTSD, for the period from August 12, 2013, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs