Citation Nr: 1817883 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-22 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent from June 29, 2012 to April 26, 2016 for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased rating greater than 40 percent for residuals of prostate cancer. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This matter was previously before the Board in March 2016 and was remanded for further development. As remand directives have been substantially complied with, the Board will proceed with adjudication of the Veteran's claims. Stegall v. West, 11 Vet. App. 268 (1998). In an April 2016 rating decision, the RO granted a 100 percent rating for the Veteran's PTSD, effective April 26, 2016. Therefore, as the Veteran has the maximum schedular rating from April 26, 2016, the matter of an increased rating for that period is moot and the issue has been characterized accordingly. FINDINGS OF FACT 1. For the period beginning June 29, 2012 to April 26, 2016, the Veteran's PTSD manifested with symptoms that caused occupational and social impairment with occasional decrease in work efficiency, but not occupational and social impairment with reduced reliability and productivity. 2. The Veteran's prostate cancer residuals have not required the use of an appliance or absorbent materials which must be changed more than four times per day. CONCLUSIONS OF LAW 1. For the period beginning June 29, 2012 to April 26, 2016, the criteria for a rating greater than 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 8 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an evaluation in excess of 40 percent for residuals of prostate cancer have not been met. 38 U.S.C. § 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (2017). These notice requirements were accomplished in a December 2012 letter sent prior to the adjudication of the Veteran's claim. VA has fulfilled its duty to assist the Veteran. Service treatment records, private treatment records identified by the Veteran, and VA medical treatment records, have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA examinations were conducted in September 2013 and again in April 2016 in response to the Board's remand directives. The examiners made all required clinical findings and provided sufficient information. 38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the VA examinations are fully adequate for adjudication purposes. Additionally, there is no indication in the record that any additional evidence, relevant to the issues decided, is available and is not a part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Increased Ratings Generally Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). PTSD The Veteran's PTSD has been evaluated as 30 percent disabling from June 29, 2012 to April 26, 2016 for the period on appeal under Diagnostic Code 9411 which evaluates impairment from PTSD. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Under the General Rating Formula, a 30 percent rating is warranted 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 50 percent rating is assigned 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 70 percent evaluation is warranted when there is 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The maximum schedular rating of 100 percent is warranted when there is 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2017). The rating agency shall assign an evaluation based on all 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b) (2017). Use of the term "such symptoms as" in § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and because the plain language of the regulation makes clear that "the veteran's impairment must be 'due to' those symptoms," 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." Vazquez-Claudio, 713 F.3d at 116-17. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran contends a higher rating is warranted for his PTSD. In support thereof, the Veteran submitted a statement from a private physician in January 2013. The physician noted that the Veteran's PTSD causes sleep impairment, paranoia in that he cannot sit without facing a room, and that loud noises drive him "crazy." He further noted the Veteran is tired, weak, debilitated, and frightened at times. He has memory loss that has worsened with time, and he cannot complete a mini mental examination, nor can he do serial 7's or serial 6's. The Veteran submitted a second medical opinion in January 2013 from a private physician who noted that the Veteran's most salient symptoms include being startled by loud noises, fearfulness, irritability, memory loss, and forgetfulness. In September 2013, the Veteran received a VA examination. The Veteran reported being married and divorced once, and that he currently lives with his sister. The Veteran denied social impairment. Occupationally, the Veteran reported that he was a state trooper from 1971-1985, and quit to start a private security company which closed in 1996. He worked as director of security for another company but two years ago they stopped paying him and took away his car, although he does not know the reason for this. He stated that he has not worked since that time because of his chronic fatigue syndrome. The examiner reported symptoms of avoidance of places, activities, and people related to his trauma, sleep impairment, hypervigilance, depressed mood, and disturbances of motivation and mood. The examiner found that the Veteran exhibited 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; symptoms controlled by medication. In January 2014, the Veteran submitted a Review PTSD Disability Benefits Questionnaire (DBQ). The examination noted symptoms of depressed mood, anxiety, short-term memory impairment, disturbed mood, and the inability to sustain work and social relationships, and found that the Veteran exhibited occupational and social impairment with reduced reliability, and impairment with deficiencies in most areas. After considering the evidence of record, the Board finds that a rating greater than 30 percent is not warranted as the evidence does not show that the Veteran's PTSD symptoms are of such severity, frequency, or duration that they equate to occupational and social impairment with reduced reliability or deficiencies in most areas such as school, family relations, work, mood, judgment or thinking, or total occupational and social impairment. Rather, the Veteran's reported symptoms of depressed mood, chronic sleep impairment, irritability, avoidance, paranoia, memory loss, hypervigilance, and his inability to trust anyone have been noted as mild throughout the appeal period. The evidence fails to demonstrate impairment of thinking or judgment, or that his psychiatric problems impacted his ability to work. In fact, in 2013, the Veteran denied any social impairment during his examination. Additionally, the Veteran was employed for fourteen years as a state trooper and went on to start his own security company. He subsequently worked as the director of another security company and while he reported the company stopped paying him, the Veteran noted that he stopped working due to his chronic fatigue syndrome, as opposed to his psychiatric symptoms. Further, the Veteran tested negative for PTSD as noted in an October 2013 case management note. The Board notes that the Veteran submitted medical opinions in January 2013 from two private physicians who noted the Veteran exhibited symptoms of being weak, frightened, fearfulness, irritability, memory loss, and forgetfulness; however, the Board finds that these symptoms are contemplated in the current 30 percent disability rating, and do not warrant a higher evaluation. Additionally, the January 2014 PTSD DBQ submitted was not complete, and was not signed nor dated, and there is no evidence the individual reviewed the Veteran's medical file prior to rendering any conclusions. Moreover, the examination does not indicate what type of physician, if any, completed the form; therefore, there is no indication that the examination was conducted by a psychologist or psychiatrist as required. Therefore, the examination is not entitled to much probative value. In any case, the Board finds that the findings that are present in this DBQ are inconsistent with the evidence of record. The Board notes that the Veteran's claims file is absent of any other evidence with regard to the Veteran's psychiatric impairment. There are no reports or evidence of delusions, hallucinations, suicidal/homicidal ideations, neglect of hygiene, or any other evidence that would support a higher rating at any time during the appeal period. Given the evidence of record, the Board finds that the Veteran's PTSD is appropriately rated and more nearly approximate the criteria for a 30 percent rating. As such, an increased evaluation is not warranted at any time during the period on appeal. As the preponderance of the evidence is against assignment of any higher ratings, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of Prostate Cancer The Veteran is seeking a rating in excess of 40 percent for the period on appeal. The evidence shows that the Veteran was diagnosed with prostate cancer in September 2009, and underwent laparoscopic prostatectomy in November 2009. The cancer has been in remission since that time, with no evidence of recurrence. Regulations provide that in such instances, the disorder is rated on its residuals. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. Diagnostic Code 7528 provides in relevant part that following cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures..., if there has been no local recurrence or metastasis, residuals are to be rated as voiding dysfunction or renal dysfunction, whichever is predominant. In this case, the predominant symptoms are most similar to those captured in the criteria for voiding dysfunction. See 38 C.F.R. § 4.20, authorizing the rating of a condition according to the requirements of an analogous condition. The record is absent of any evidence of renal dysfunction; however, the record consistently reflects voiding dysfunction during the period at issue. Section 4.115(a) states that voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. The only provision which allows for a rating greater than 40 percent is the criteria for voiding dysfunction. Under these criteria, a 40 percent disability rating is assigned for urine leakage, urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials that must be changed 2 to 4 times per day, and a 60 percent disability rating is assigned for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. See 38 C.F.R. § 4.115a. Turning to the relevant evidence, the Veteran received a VA examination in September 2013 for his prostate cancer. As an initial matter, the Board notes that while the examiner noted the Veteran's previous diagnosis of prostate cancer was in 2011, the evidence shows the Veteran was diagnosed and had surgery in 2009. Therefore, the Board finds this was a clerical error made by the VA examiner. Nonetheless, the examiner noted that the Veteran's cancer was in remission. The examiner also noted that the Veteran has voiding dysfunction requiring absorbent material which must be changed 2 to 4 times per day, but that it does not require the use of an appliance. The Veteran had increased urinary frequency of day time voiding intervals between 2 and 3 hours, and awakening at night to void 3 to 4 times. The examiner noted that the Veteran's erectile dysfunction is as likely as not caused by his previous prostate cancer or residuals, but that the Veteran did not have any other pertinent physical findings, complications, or conditions related to his prostate cancer or residuals. The Veteran received another VA examination in April 2016 for his prostate. The examiner also noted that the Veteran's previous diagnosed prostate cancer was in remission. The examiner noted that the Veteran has voiding dysfunction requiring absorbent material to be changed 2 to 4 times per day, but that his voiding dysfunction does not require the use of an appliance. The examiner further noted increased urinary frequency requiring daytime voiding with intervals between 2 and 3 hours and nighttime awakening to void 2 times. The examiner noted that the Veteran's erectile dysfunction is attributed to the Veteran's prostate cancer, but that the Veteran did not have any other pertinent physical findings, complications, or conditions related to his prostate cancer or residuals. After a review of all the evidence, the Board finds that the Veteran's service-connected residuals of prostate cancer most closely approximates the criteria for the currently assigned 40 percent disability evaluation. The Board finds that the Veteran's residual symptoms have been relatively consistent, and that the 40 percent evaluation takes into account the Veteran's voiding dysfunction, manifested by urinary frequency, for the entire rating period. Throughout the rating period, the Veteran's service-connected residuals of prostate cancer have been characterized by urinary frequency requiring daytime voiding no more frequent than every two and three hours, with nocturia of at most three to four times per night. Moreover, the Veteran has not required the wearing of absorbent materials which must be changed more than four times per day. Assignment of a 60 percent rating, the highest available for voiding dysfunction, requires a showing that the Veteran requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. The evidence shows that the Veteran did not require the use of an appliance; however, in his November 2013 NOD, the Veteran reported that he changes his pads 6 times a day. The Board recognizes that the Veteran is competent to report his symptoms, however, his statements must also be credible. The Board notes that the Veteran's contention is contrary to his VA examination that occurred two months prior which noted that he reported that he changes his pads two to four times a day. Additionally, there is no other evidence of record that supports the Veteran's contention except for a prostate examination submitted by the Veteran in January 2014 which noted that the Veteran uses depends 6 times a day. The examination appears to be from the same individual who performed the Veteran's January 2014 PTSD DBQ mentioned previously. Like the PTSD DBQ, the prostate examination is also incomplete in that the examination is not dated and there is no indication the Veteran's medical history was reviewed prior to rendering any medical conclusions. Therefore, the examination is not given as much probative value as the other evidence of record which contradicts the findings therein. As a result, the Board finds the Veteran's September 2013 and April 2016 VA examinations are the most probative evidence regarding the severity of the Veteran's prostate residuals. Moreover, the examinations are consistent with each other both noting that the Veteran changes his pads two to four times a day which presumably was derived from the Veteran's own report during the examination. As there is no other evidence of record to support a rating greater than 40 percent, the Board finds the preponderance of evidence weighs against the claim, and the currently assigned 40 percent disability rating adequately compensates the Veteran for his residuals of prostate cancer for this period. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating in excess of 30 percent from June 29, 2012 to April 26, 2016 is denied. Entitlement to an increased rating greater than 40 percent for residuals of prostate cancer is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs