Citation Nr: 1817593 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-13 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to July 6, 2017. 2. Entitlement to an evaluation in excess of 50 percent for PTSD on or after July 6, 2017. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2007 to August 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction of this case was subsequently transferred to the RO in Denver, Colorado. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that additional documents have been added to the claims file since the November 2018 Statement of the Case was issued. However, a review of those documents shows that they are not relevant to the issues on appeal. Thus, a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ) is not needed. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Prior to July 6, 2017, the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity. 2. During the February 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he was satisfied with the 50 percent evaluation assigned for his service-connected PTSD since July 6, 2017. There is no remaining case or controversy as to that issue. CONCLUSIONS OF LAW 1. Prior to July 6, 2017 the criteria for an initial 50 percent evaluation for PTSD, but no higher, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2017). 2. The claim of entitlement to an evaluation in excess of 50 percent for PTSD on or after July 6, 2017, is dismissed. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has 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, uniform evaluations are warranted. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's PTSD is currently assigned a 30 percent evaluation prior to July 6, 2017, and a 50 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent evaluation is assigned for occupational and social impairment with an 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 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." The Board notes that the regulations were recently revised to incorporate the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) rather than the Fourth Edition (DSM-IV). These provisions only apply to cases received by or pending before the AOJ on or after August 4, 2014. The change does not apply to cases certified to the Board prior to that date. In this case, the Veteran's claim was certified to the Board after August 4, 2014; therefore, the regulations pertaining to the DSM-V are for application. Initially, the Board notes that, during the February 2018 hearing, the Veteran indicated that he was content with the 50 percent evaluation assigned for his PTSD. Rather, he indicated his belief that he was entitled to a 50 percent evaluation since 2011 because his PTSD had been just as severe at that time. Therefore, the Board finds that the Veteran is satisfied with the current 50 percent evaluation assigned for his service-connected PTSD. As such, there is no remaining case or controversy with respect to the issue of entitlement to an evaluation in excess of 50 percent for PTSD on or after July 6, 2017. Given that there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review that issue, and it is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. Moreover, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 50 percent evaluation for his service-connected PTSD prior to July 6, 2017. During an October 2012 VA examination, the examiner noted that the Veteran had voluntarily sought treatment for symptoms related to his PTSD upon his discharge from service. He reported having symptoms of anger and anxiety, and he expressed discomfort when meeting new people. The examiner noted that the Veteran had symptoms of suspiciousness, chronic sleep impairment, and difficulty in adapting to stressful circumstances. In an October 2012 VA treatment record, the Veteran reported that he tried to control his anger around his girlfriend because she did not want to be around him when he was feeling angry. He described an incident where he became angry at a man and would have become violent had his girlfriend not been with him. He also reported that his family and girlfriend had told him that he got angry often and quickly, and at times, it seemed as though he could not control his anger. The Veteran also reported that he had difficulty concentrating. In a July 2013 counseling record, the Veteran reported that he experienced high anxiety in social settings and had a difficult time relating to or having an interest in people who were not veterans. In an August 2013 assessment, he reported that he had feelings of hopelessness and despair and experienced sleep disturbances. In his April 2014 Form 9, the Veteran indicated that he experienced difficulties with sleep, avoided crowds when possible, was easily agitated, and had startled responses. He also reported having slight depression and hypervigilance, and he felt more withdrawn. During the February 2018 hearing, the Veteran testified that the symptoms he reported during his July 2017 VA examination, which resulted in the assignment of the 50 percent evaluation, were the same symptoms that he had experienced since 2011. He indicated that there was nothing that caused his PTSD to worsen as of that date. He explained the reasons that he was unable to seek treatment at times over the years and noted that the June 2017 VA examiner had focused on his current state and did not ask him about the past. The Veteran stated that, although he reported the symptoms on the specific date of the examination, he had experienced them since his discharge from service. The Board finds that the foregoing evidence demonstrates that the Veteran's PTSD symptoms more closely approximate the rating criteria for a 50 percent evaluation prior to July 6, 2017. He has been described as irritable, anxious, angry, and depressed during the time period on appeal. While his depression fluctuated, the Veteran's medical records indicate that his anxiety and anger reflect an overall disturbance of motivation and mood, such that his level of impairment does not reflect a mild disability, but rather a moderate one. The Veteran's symptoms of anger and anxiety have also affected his social relationships. Although the Veteran is now married, he reported that his anger caused stress in that relationship prior to July 6, 2017. He also did not maintain strong relationships with his family since service. His symptoms of anger and anxiety also significantly affected his work relationships. The Veteran had lashed out at colleagues on different occasions, and he indicated that his coping mechanism of isolation conflicts with the nature of his work-related responsibilities. Moreover, notably, during the February 2018 hearing, the Veteran reported that his symptoms of PTSD had been consistent throughout the appeal period and were present prior to his July 2017 VA examination. Thus, the Board finds that the Veteran's symptoms were productive of occupational and social impairment with reduced reliability and productivity, and a 50 percent evaluation is warranted prior to July 6, 2017. As noted above, the Veteran is satisfied with the 50 percent evaluation for the entire appeal period and feels that his symptoms are adequately contemplated by that evaluation. As such, any discussion of entitlement to an evaluation in excess of 50 percent prior to July 6, 2017, is unnecessary. Accordingly, the Board finds that, prior to July 6, 2017, the Veteran's symptoms more closely approximated the criteria for a 50 percent evaluation. As such, an evaluation of 50 percent, but no higher, is warranted for service-connected PTSD prior to July 6, 2017. ORDER An initial evaluation of 50 percent, but no higher, for service-connected PTSD prior to July 6, 2017, is granted. The appeal for the issue of entitlement to an evaluation in excess of 50 percent for service-connected PTSD on or after July 6, 2017, is dismissed. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs