Citation Nr: 1817797 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 16-57 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to March 30, 2017. REPRESENTATION Appellant represented by: Tammie L. Harrison, Agent ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from January 1961 to January 1969, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for PTSD with dementia and assigned a 50 percent disability rating. In a July 2017 rating decision, the RO increased the assigned rating for dementia and PTSD (previously rated as PTSD with dementia) to 100 percent, effective March 30, 2017. Therefore, the issue of a higher disability rating prior to March 30, 2017 remains on appeal. For clarity, and as discussed in detail below, although the RO characterized the Veteran's service-connected psychiatric disability as PTSD with dementia, the Board notes that VA examiners in June 2014 and July 2017 identified his PTSD and dementia as distinct, unrelated disabilities. Therefore, the Board has characterized the issue on appeal to reflect more accurately the medical evidence of record. The Board notes that the record demonstrates sufficient cause to advance the Veteran's appeal on the Board's docket based on his age pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Competent and probative medical evidence of record establishes that the Veteran's severe dementia or normal pressure hydrocephalus, which is manifested by impairment in memory, concentration, and impulse control, is a separate, distinct disability etiologically unrelated to PTSD. 2. Since receipt of the claim for service connection until March 29, 2017, PTSD with dementia was manifested by subjective reports of sleep impairment and nightmares, avoiding crowds, and suspiciousness. CONCLUSION OF LAW Prior to March 30, 2017 the criteria for a rating in excess of 50 percent for PTSD have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Neither the Veteran nor his agent 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). Thus, the Board finds that VA does not have a duty to assist that was unmet. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). II. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Generally, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also for consideration in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. The Veteran's service-connected PTSD has been rated as 50 percent disabling since service connection was established effective August 22, 2013 through March 29, 2017, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, which uses the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 10 percent rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or where symptoms are controlled by continuous medication. A 30 percent evaluation is assigned when there is 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 evaluation is for assignment when there is 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 establishing effective work and social relationships. A 70 percent evaluation is contemplated 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 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 evaluation is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The symptoms listed in the relevant rating criteria are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Turning to the evidence, in June 2014 the Veteran was afforded a VA examination. He endorsed current symptoms of chronic sleep impairment, avoiding crowds, suspiciousness, mild memory loss, and impairment in short- and long-term memory. His wife, who accompanied him to the examination, described him as a "loner." He indicated he had retired from his career as an accountant in 2003 after working for the same company for 31 years. Mental status examination findings included the following: cooperative with good eye contact; no abnormal movements; speech with normal rate, rhythm, and tone; no formal thought disorder; oriented to person, place, and time with the assistance of his wife, who explained to the Veteran that he was going to a psychiatry examination and not to a hearing test as he believed; euthymic mood; full affect; occasionally appeared confused; no suicidal or homicidal ideation; normal motivation and energy; and good judgment. Other symptoms observed included not responding to internal stimuli and difficulties with concentration and memory due to dementia from normal pressure hydrocephalus. The examiner detailed that the Veteran met the diagnostic criteria for PTSD based on a military stressor involving fear of hostile military activity and based on the number, duration, and degree that particular symptoms of PTSD caused clinically significant distress or impairment in social or occupational functioning. In this regard, the examining psychiatrist concluded the Veteran's PTSD symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner also indicated that due to symptoms of dementia from normal pressure hydrocephalus, which began with a diagnosis of Alzheimer's disease approximately two years earlier and remained somewhat in flux because his gait was not abnormal, the Veteran had difficulties with concentration and memory. Later in June 2014, the Veteran presented for a VA primary care visit to establish care. PTSD screening was negative, responding, "Yes," to one of four questions. The Veteran endorsed feeling constantly on guard, watchful, or easily startled. However, he denied having nightmares; denied trying not to think about military stressors or going out of his way to avoid situations that remind him of military stressors; and denied feeling numb or detached from others, activities, or his surroundings. The Veteran also expressly denied experiencing suicidal ideation. Depression screening was also negative with the Veteran responding, "Not at all," to experiencing little interest or pleasure in doing things and to feeling down, depressed, or hopeless. During the initial evaluation with the physician, however, he reported developing PTSD with nightmares, which his wife had witnessed. He also described having memory problems, stating he was thought to have normal pressure hydrocephalus and had a shunt placed to the perineum. He disclosed a family history of dementia. On the same day, the Veteran and his wife met with a VA social worker and declined any mental health services. During a June 2015 VA primary care visit, depression screening was negative. On examination, the Veteran was completely alert and well-oriented to person, place, and time. The VA physician noted the Veteran's active non-VA medications included Donepezil for his memory loss or dementia, which was managed aggressively by his private family physician. Subsequent VA treatment records pertinent to psychiatric and cognitive impairment were dated in April 2017 and later. They reflect that the Veteran moved to an assisted living facility in April 2017 due to rapidly progressing dementia since the 2012 craniotomy with ventriculoperitoneal shunt placement, but later returned to live at home; the Veteran's spouse accompanied him to VA appointments. April 2017 primary care records document negative PTSD and depression screening with the Veteran denying symptoms of anxiety, depression, PTSD, or insomnia during a review of systems. The assessment was severe dementia with hallucinations and agitation; normal pressure hydrocephalus status post ventriculoperitoneal shunt. During a May 2017 VA psychiatry consultation, the Veteran's wife indicated that as his memory worsened, he became more erratic, wandered, and had poor sleep. She related that he had tried to exit a moving car, go outside through windows, and started a fire when he left a cloth on a stove burner. She reported that since the onset of the Veteran's neurocognitive disorder, he would have verbal outbursts when frustrated. She stated he had a difficult initial adjustment to the assisted living facility, but his behavior improved with no further outbursts after he started taking BuSpar for anxiety and a sleeping pill, believed to be Trazodone. The Veteran emphatically denied suicidal or homicidal ideation, intent, or plans; auditory or visual hallucinations; paranoia; hopelessness or helplessness; or symptoms of mania, psychosis, or obsessions or compulsions. The psychiatrist indicated the Veteran did not have complaints related to past trauma, but could not "exclude that anxiety related to dementia may also have a component of anxiety triggered by old trauma." During a July 2017 VA examination to evaluate service-connected PTSD, the VA examiner indicated the Veteran's sleep impairment was attributable to his PTSD, and memory impairment, depression, and anxiety were attributable to his dementia. The examiner found the Veteran's dementia caused total occupational and social impairment and his service-connected PTSD caused 50 percent occupational and social impairment. The examiner explained that the Veteran's PTSD and dementia were separate, independent, orthogonal diagnoses; they shared no etiological connection and dementia was not secondary to PTSD. The examiner added that at present, the dementia was more advanced and was the more proximate etiology governing the Veteran's functioning. Having considered the medical and lay evidence of record, the Board finds the preponderance of the evidence weighs against the claim for an initial rating in excess of 50 percent for PTSD. Initially, the Board finds that although the RO has characterized the Veteran's service-connected PTSD to include a dementia disability, competent medical evidence of record establishes that the Veteran's dementia is unrelated to his PTSD. In this case, the June 2014 VA examiner identified normal pressure hydrocephalus as a medical diagnosis that began two years earlier and attributed difficulties with concentration and memory to that dementia diagnosis. Also, the July 2017 VA examiner explained that the dementia was a separate and independent diagnosis from PTSD, sharing no etiological connection and having no proximate cause between PTSD and dementia. Moreover, VA treatment records document a family history of dementia. Finally, the Board emphasizes that without exception the Veteran's memory problems and difficulty with concentration have been attributed specifically to his dementia by VA treatment providers and VA examiners. Therefore, to the extent that VA treatment records and examination reports document memory impairment and concentration problems, the Board finds the preponderance of the evidence supports the conclusion that those symptoms are attributable to the Veteran's progressive dementia disability, which began in 2012 and has been established by the June 2014 VA psychiatrist and July 2017 VA clinical psychologist as being unrelated to service-connected PTSD. Cf. Mittleider v. West, 11 Vet. App. 181 (1998). Since service connection was established effective August 22, 2013 until March 29, 2017, the Veteran's PTSD has been manifested by subjective reports of sleep impairment and nightmares, avoiding crowds, and suspiciousness. The Board finds these symptoms warrant a noncompensable, zero percent rating. Notably, the June 2014 VA examiner specifically concluded the Veteran's PTSD symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. The Board finds the VA examiner's assessment to be consistent with contemporaneous VA treatment records also dated in June 2014. Here, the negative PTSD and depression screening results suggest the Veteran's PTSD symptoms are intermittent and weigh against the assignment of a higher rating on the basis of severity or duration of symptoms. In addition, a higher 70 or 100 percent rating is not warranted for any period prior to March 30, 2017 because the Veteran's PTSD has not been manifested by "particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (describing when a veteran may qualify for a given disability rating under [38 C.F.R.] § 4.130). For example, while there was some suggestion of disorientation on VA examination in June 2014 because the Veteran thought he was there for an audiological examination, which had been scheduled for the following day, he was well-oriented to person, place, and time during a June 2015 primary care visit. Similarly, while the Veteran became dependent on his spouse or others in most activities of daily living, his difficulty was attributed to his dementia. See May 2017 VA psychiatry consultation. Finally, while the Veteran appears to have had impaired impulse control manifested by verbal outbursts, trying to exit a moving car, and climbing out of windows, the evidence of record documents the onset of such symptoms occurring with his dementia. Thus, the Board finds the Veteran's level of functioning has not exceeded that contemplated by the 50 percent rating criteria during the applicable appeal period. In addition, although the Board finds the Veteran's PTSD symptoms more nearly approximate the criteria for a noncompensable rating for the period prior to March 30, 2017, the Board will not disturb the more favorable, 50 percent rating currently assigned for that period. The Board has considered staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes they are not warranted because as explained above, the medical and lay evidence of record does not support a higher rating than already assigned for PTSD for the period prior to March 30, 2017. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial rating in excess of 50 percent for PTSD prior to March 30, 2017 is denied. ____________________________________________ DAVID GRATZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs