Citation Nr: 1817162 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-12 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Kuczynski, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In that decision, the RO granted service connection for an anxiety disorder otherwise specified and assigned a 10 percent evaluation effective from April 30, 2010. During the pendency of the appeal, the RO issued a May 2012 rating decision that increased the evaluation for PTSD (previously characterized as anxiety disorder not otherwise specified) to 50 percent effective from April 30, 2010. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher initial evaluation remains on appeal The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2016. A transcript is of record. The Board remanded the case for further development in August 2017. That development was completed, and the case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The issue of entitlement to TDIU will be addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's PTSD is not productive of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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 a duty to assist argument). Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. 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. 38 C.F.R. § 4.7. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. In this case, as explained below, a uniform evaluation is warranted. The Veteran is currently assigned a 50 percent evaluation for PTSD, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent rating is warranted when the psychiatric disorder results in 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 when the psychiatric disorder results in 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the psychiatric disorder results in 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. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an initial evaluation in excess of 50 percent for PTSD. Initially, the Board notes that there has been some question as to whether some of the Veteran's symptoms may be attributable to a nonservice-connected brain injury. In this regard, a September 2016 VA examiner indicated that it was not possible to differentiate the symptoms attributable to the Veteran's service-connected PTSD as opposed to a nonservice-connected traumatic brain injury. However, a January 2018 VA examiner found that the Veteran did not have a traumatic brain injury. The Board finds that the record does not contain sufficient evidence to distinguish between any symptomatology attributable to the service-connected PTSD and any nonservice-connected traumatic brain injury. Thus, the Board has considered all such symptomatology is evaluating the service-connected disability. 38 C.F.R. § 3.102; see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must resolved in an appellant's favor and all symptomatology attributed to the service-connected condition). In this case, the record does not demonstrate that the Veteran's overall disability picture is consistent with a 70 percent rating or higher, to include consideration of the Veteran's lay statements, treatment records, and the VA examination reports. The Veteran has not been shown to have 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. In fact, the June 2010 VA examiner noted that the Veteran had a clean appearance and was able to maintain hygiene. He had unremarkable psychomotor activity, thought content, and thought process. His speech was clear, coherent, and unremarkable; his attention was intact; and he was oriented to person, time, and place. There were no delusions or hallucinations, and the Veteran denied having suicidal and homicidal thoughts. He was also found to have good impulse control and had no episodes of violence. The Veteran did report being a bit obsessive in regards to having his house in order; however, he found house cleaning to be a desired rather than distressing activity, and there was no indication that the behavior interfered with routine activities. In addition, the September 2016 VA examiner indicated that the Veteran's grooming and hygiene were appropriate, and he was alert, oriented, and cooperative. Although his speech was somewhat pressured and his voice became raised when discussing Vietnam experiences, there was no indication that his speech was intermittently illogical, obscure, or irrelevant. His thought processes were clear and goal-directed, and there was no evidence of a formal thought disorder or any overt indications of the Veteran responding to internal stimuli. He denied having any recent violent outbursts. He did endorse some passive suicidal thoughts, but he denied having any plan, intent, or actions. Moreover, the January 2018 VA examiner noted that the Veteran was dressed and groomed appropriately. His speech had a regular rate, rhythm, and volume, and his judgment and insight were intact. There was no evidence of hallucinations, delusions, or paranoia, and he denied having suicidal and homicidal ideation. The Board also finds it significant that the Veteran told the June 2010 VA examiner that he had no more than brief periods of depressed mood that is elevated by activity. He further indicated that he did not believe that he had significant problems other than anxiety. The examiner specifically noted that the Veteran's PTSD did not result in deficiencies in judgment, thinking, mood, or work and stated that the disorder was not severe enough to interfere with occupational or social functioning. In addition, the September 2016 VA examiner indicated that the Veteran had occupational and social impairment with reduced reliability and productivity, which is commensurate with the rating criteria for a 50 percent evaluation. Moreover, the January 2018 VA examiner stated that the Veteran had 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. Such a finding is commensurate with a 30 percent evaluation. Recent VA treatment records also note that the Veteran's PTSD has been improving and that the prognosis was good. As to social impairment, the evidence shows that the Veteran has maintained relationships during the appeal period. During the June 2010 VA examination, he reported having been married to his wife since 1991 and described his marital relationship as very good. He also indicated that he had good relationships with his stepchildren. The Veteran told the examiner that he had a group of friends and described himself as social with no difficulties in social activity or relationships. Moreover, at the time of the September 2016 VA examination, he remained married to his wife and described the relationship as loving and supportive although he sometimes snapped due to irritability and a low frustration tolerance. The Veteran continued to get along with his stepchildren and remained in contact with two of his brothers and his sister (who accompanied him to the appointment). In terms of friendships, he indicated that he was close to two other veterans and kept in contact with previous band members. In addition, at the time of the January 2018 VA examination, the Veteran still remained married although they had some issues, and he reported having five to six good friends. With regard to occupational impairment, the Board notes that the Veteran was employed for the majority of the appeal period. In this regard, he told the June 2010 VA examiner that he worked on cars about 20 hours per week, but was cautious about such work because he was in receipt of disability benefits from the Social Security Administration (SSA). He also indicated that he had been working at a grocery store for about nine years. SSA records reveal that the grant of disability benefits was based on fractures of the lower limb and a soft tissue injury to the upper extremity following an accident. The Veteran later told the April 2016 VA examiner that he quit his job at the grocery store that month. He indicated that he had some difficulties tolerating others and engaging in confrontations with customers and co-workers, but he denied having any issues with tardiness, absenteeism, time lost from work, reduced productivity, or disciplinary action taken at his place of employment for mental health reasons. Lay statements written by the Veteran's wife and sister also indicated that he had been struggling at work. Nevertheless, the September 2016 VA examiner opined that the Veteran had only occasional decreases in work efficiency due to difficulty with dealing with the public and dealing with large crowds of people. Moreover, during the July 2016 hearing, the Veteran indicated that he planned to find another job once his leg healed. Thus, while the Veteran may have some degree of occupational impairment, the evidence does not show that he had severe or total occupational impairment as a result of his PTSD during the appeal period To the extent that any of the symptoms of a 70 percent rating may be shown or argued, the Board emphasizes that, overall, the Veteran's PTSD has not been shown to be productive of occupational and social impairment in most areas or total occupational and social impairment to warrant a higher rating. In this regard, as noted above, suicidal ideation has been noted at times during the appeal period, which is contemplated by the 70 percent disability rating. However, that symptom has not been shown to have an impact on the Veteran's overall ability to function socially or occupationally. With regard to the report of suicidal ideation, in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court indicated that the severity, frequency, and duration of the signs and symptoms of a mental disorder must be considered when determining the appropriate rating. The September 2016 VA examiner indicated that the Veteran did endorse some passive suicidal thoughts, but he denied having any plan, intent, or actions. He also testified at the July 2016 hearing that he had thought about suicide recently. However, during the June 2010 and January 2018 VA examinations, the Veteran denied having any suicidal ideation. Moreover, even considering such symptom, there was no finding by the September 2016 VA examiner that the overall disability picture caused occupational and social impairment with deficiencies in most areas. After considering the evidence of record, the Board finds that the Veteran's symptoms more closely approximate the criteria for a 50 percent disability evaluation for the entire appeal period. Overall, the Veteran has not demonstrated a level of impairment consistent with the 70 percent criteria, nor have the Veteran's symptoms caused occupational and social functioning in most of the areas or total occupational and social functioning referenced by the 70 and 100 percent evaluation criteria. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 70 percent have not been met or approximated. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Thus, the weight of the evidence is against a rating in excess of 50 percent for PTSD and as such, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53. ORDER Entitlement to an initial evaluation in excess of 50 percent for PTSD is denied. REMAND Regarding the TDIU claim, the Veteran is currently service-connected for PTSD, hearing loss, and tinnitus, and the combined evaluation is 60 percent. However, the evidence does not include a medical opinion addressing the combined effects of these disabilities and their resulting impairment. Therefore, the Board finds that a VA examination and medical opinion are needed to ascertain the combined effects of his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA examination by an appropriate examiner. The ultimate purpose of the examination is to ascertain the combined impact of the Veteran's service-connected disabilities and resulting impairment. If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should elicit and set forth the pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and industrial capacity. The report should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the claims file. 2. After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the case should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs