Citation Nr: 1820190 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 14-30 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 30 percent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Shah, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to June 1989, February 2008 to September 2008, August 2010 to December 2010, and January 2011 to March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a July 2013 rating decision, the RO granted service connection for PTSD and assigned an initial disability rating of 10 percent, effective the day after the Veteran's discharge from active duty, March 31, 2012. In an April 2014 rating decision by a Decision Review Officer (DRO), the RO granted entitlement to an initial rating of 30 percent for PTSD, effective March 31, 2012. In August 2016, the Veteran testified at a video conference hearing before the undersigned. A transcript of the hearing is of record. FINDING OF FACT The Veteran's service-connected PTSD is manifested by occupational and social impairment due to mild symptoms with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily; the PTSD does not more nearly approximate the criteria for occupational and social impairment with reduced reliability and productivity, for occupational and social impairment, or by total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent rating for PTSD have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA must notify the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A timing defect can be cured by later notice and readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Veteran filed his claim seeking service connection for PTSD on a VA Form 21-526EZ, which includes notice that is compliant with 38 U.S.C.A. § 5103(a). The Board points out that the instant appeal originates from the rating decision which granted service connection; as the underlying claim was substantiated by the grant, no further notice under 38 U.S.C.A. § 5103(a) is required in this appeal. VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. 38 U.S.C. § 5103. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The June 2013 and July 2016 VA medical opinions reflect that the examiners reviewed the Veteran's pertinent medical history and offered opinions supported by adequate rationale. Therefore, the opinions are adequate for determining entitlement to a higher initial rating. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. There is no indication that there exists any additional obtainable evidence that has a bearing on this case that has not been obtained. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. II. Background The relevant medical evidence of record consists of the Veteran's treatment with VA treatment providers, as well as reports of VA psychological examinations conducted in June 2013 and July 2016. During a June 2013 VA examination, the Veteran was diagnosed with PTSD and alcohol abuse secondary to PTSD. The examiner found that the Veteran's PTSD was caused by fear of hostile military activities in Iraq and Kyrgyzstan. The examiner found that the Veteran's symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner reported that his marriage ended due to many problems, that he had been living with his parents, and that he had five friends who he saw weekly. The examiner noted that the Veteran began working at his first job since he returned from active duty approximately three months before the examination. On examination, the examiner found that the Veteran experienced recurrent and distressing recollection of the in-service stressors; efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollection of the trauma; restricted range of affect; hypervigilance; and an exaggerated startle response. The examiner found that the symptoms of the Veteran's PTSD included anxiety and chronic sleep impairment. The examiner stated that the Veteran was drinking 6 to 10 beers a day as a type of medication because he could not sleep. The examiner stated that loud noises were difficult for the Veteran to handle and caused him to dodge for cover. The Veteran reported taking about 3 minutes to fall asleep and waking every night around 2:30 a.m. The Veteran denied having nightmares. The Veteran reported feelings of guilt, but denied feelings of hopelessness, depression and worthlessness. The Veteran also denied hallucinations or suicidal ideation. The examiner noted that the Veteran had periods of dissociation. The examiner found that the Veteran's long-term memory was better than short-term memory and that judgment and insight were intact for safety and self-care. The examiner noted that the Veteran denied intrusive or distressing thoughts, nightmares, flashbacks and any kind of emotion when he gets reminded of his experiences. The examiner noted that the Veteran reported fishing, mostly with a friend, and that the Veteran felt as though he fit into his society. The Veteran reported problems with being irritable and having a temper. The examiner stated that sudden unexpected sounds, like the pop of a balloon, would cause him to startle. In a September 2013 treatment note, the Veteran reported sleeping better and decreased agitation. The examiner noted that the Veteran continued to use alcohol, but was vague about his level of usage. Treatment records from October 2013 and November 2013 noted that the Veteran was able to obtain employment at his current residence in New Jersey and was planning on moving to Florida the next month to potentially work for a friend. Between November 2013 and August 2015, the Veteran had no significant mental health treatment. In August 2015, the Veteran re-started mental health treatment. The Veteran reported difficulty with loud noises in public settings. The Veteran also reported relying on alcohol to fall asleep, waking up several hours later, and being unable to fall back asleep. An April 2016 psychiatric note stated that the Veteran was not on medications. The Veteran reported having a fairly stable mood and considerably cutting down on his alcohol intake. The examiner opined that the Veteran may be compensating with food. The examiner found the Veteran's mood to be stable. The examiner noted that the Veteran would sleep for 4 to 5 hours per night, had intrusive thoughts when triggered by loud noises like thunder, and would avoid crowds. The examiner stated that the Veteran's trauma-related symptoms were intrusive thoughts about trauma and an exaggerated startle response. The examiner found the Veteran was alert, calm, and cooperative; displayed euthymic mood and broad affect; had normal attention, normal concentration, normal recent and remote memory, normal thought processes; did not experience auditory or visual hallucinations or delusional thoughts; demonstrated good judgment and good insight; and was oriented to person, place, situation, and date. In May 2016, the Veteran's father wrote a letter, stating that the Veteran has had a gradual but noticeable change in his personal relationship over the preceding years. The Veteran's father stated that the Veteran was more frequently depressed and anxious, was distrustful of people he did know and some that he was familiar with, and had become especially uncomfortable and guarded in crowds. The Veteran's father also stated that the Veteran was more forgetful, especially with keeping appointments and organizing files and other paperwork. During a July 2016 VA examination, the examiner found that the Veteran's PTSD resulted in 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 examiner found that the symptoms of the Veteran's PTSD included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner found that the Veteran was anxious, had appropriate content of his thoughts, never had auditory or visual hallucinations, had no indications of any delusional thinking, and did not experience suicidal or homicidal thoughts. The examiner stated that the Veteran had problems sleeping, usually only sleeping 4 or 5 hours each night; had an exaggerated startle response to loud noises; often got angry; and would get "very nervous, fidgety, and can't sit still." The examiner stated that the Veteran has had this anxiety since he returned home from deployment in 2009, including in crowded places, which he avoided to reduce his anxiousness. The examiner stated that the Veteran would get depressed three times per month, for a few hours each time. The examiner noted that the Veteran's hypervigilance was manifested by waking up in the middle of the night to make sure his doors were locked, by usually not sitting with his back to a door, and by a dislike of having people stand behind him. The examiner stated that the Veteran would have flashbacks about military experiences approximately twice per year, typically brought on by loud noises. The Veteran provided testimony in August 2016. The Veteran stated that his ex-wife and parents immediately noticed a difference in his demeanor since he returned from active duty. The Veteran explained that he would avoid crowds by changing his habits, including going to church earlier in the morning to avoid a large congregation. The Veteran also stated that he stopped attending events he regularly attended, like football games and birthday parties. The Veteran reported losing interest in activities he used to enjoy, like fishing and baseball, partially because he could no longer sit still. The Veteran stated that his father has noted a change in the Veteran's memory. The Veteran stated that, before he began his current medication, he would drink excessively to calm himself down. The Veteran explained that he got fired from his most recent job because he "freaked out" after a tray was loudly dropped, which ultimately resulted in him speaking angrily with a co-worker and his boss. The Veteran stated that this was the first time something like this occurred at that job. The Veteran explained his work history and indicated that this was the first time he had been fired. III. Legal Criteria and Analysis 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 resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Service connection for PTSD was granted in a July 2013 rating decision. A 10 percent rating was assigned, effective March 31, 2012. Pursuant to an April 2014 DRO decision, the 10 percent rating was increased to 30 percent for the entire period on appeal. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In the rating decisions, the Veteran's PTSD was evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, to include PTSD, a 30 percent rating is warranted when a mental disability results in: [o]ccupational 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 warranted when there is: [o]ccupational 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. Id. A 70 percent rating is warranted when there is: [o]ccupational 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 worklike setting); inability to establish and maintain effective relationships. Id. A rating of 100 is warranted when there is: [t]otal 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. Id. The symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that "any suggestion that the Board was required . . . to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation"). However, "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 v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). "The regulation's plain language highlights its symptom-driven nature" and "symptomatology should be . . . the primary focus when deciding entitlement to a given disability rating." Id. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 to the extent specified in the rating criteria, rather than solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a) (2017). Upon review of the evidence of record, the Board finds that an initial rating in excess of 30 percent is not warranted for the Veteran's service-connected PTSD for the entire period on appeal. The evidence from the VA examinations and the Veteran's treatment records reflect that his mental disability most nearly approximates a 30 percent rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task due to depressed mood, anxiety, chronic sleep impairment, irritability, hypervigilance, and mild memory loss. See Mauerhan v. Principi, 16 Vet. App. 436. In so concluding, the Board finds particularly persuasive the June 2013 and July 2016 VA examinations, which reflect that the Veteran experiences symptoms of chronic sleep impairment, hypervigilance, anxiety and depression. These findings have been echoed by the Veteran's treatment records, which note difficulties sleeping, alcohol use, positive moods, as well as his search and attainment of a new job. The Board notes that the Veteran's treatment records and VA examinations show that the Veteran demonstrates an ability to function independently, was consistently reported as alert and oriented, with normal speech and logical and goal-oriented thought process. The Veteran has established and maintained relationships with his parents and a few friends, as the Veteran himself stated in the June 2013 VA examination report. The Board notes that although the Veteran reports impairment in memory. The June 2013 examiner found that the Veteran's long-term memory was better than his short-term memory. An April 2016 treatment note stated that the Veteran had normal recent and remote memory. The Veteran's father stated that the Veteran was more forgetful, especially with keeping appointments and organizing files and other paperwork. Based on the foregoing, the Board finds that the Veteran has a mild memory impairment. The evidence does not show symptoms associated with a 50 percent rating: 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 and maintaining effective work and social relationships. The absence of these symptoms is not outcome determinative. However, the Veteran also failed to show other symptoms of similar severity, frequency, and duration. Therefore, the Veteran does not meet the level of severity of the symptomatology required for a 50 percent rating, i.e. occupational and social impairment with reduced reliability and productivity. See Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). While the evidence does suggest that the Veteran may have reduced social interaction, he has not shown symptomatology of deficiencies in most areas, particularly, work, judgment, thinking, or mood such that his symptoms equate to the severity, frequency, and duration of panic attacks more than once a week; impaired judgment and abstract thinking; disturbances of motivation and mood; flattened affect; or circumstantial, circumlocutory, or stereotyped speech. Therefore, the evidence of record simply does not support symptoms of such frequency, severity, or duration to warrant a 50 percent disability rating for PTSD for the appeal period. 38 C.F.R. 4.130, Diagnostic Code 9411. The evidence does not show symptoms associated with a 70 percent rating: 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; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. The absence of these symptoms is not outcome determinative. However, the Veteran also failed to show other symptoms of similar severity, frequency, and duration. Therefore, the Veteran does not meet the level of severity of the symptomatology required for a 70 percent rating, i.e. occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. See Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Throughout the pendency of the appeal, the Veteran has not demonstrated symptoms of suicidal ideations. Although the Veteran's argument at work that led to the loss of his job may reflect an impairment of impulse control, the Veteran has not shown symptomatology of deficiencies in most areas, particularly, work, judgment, thinking, or mood such that his symptoms equate to the severity, frequency, and duration of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant spatial disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective relationships. Therefore, the evidence of record simply does not support symptoms of such frequency, severity, or duration to warrant a 70 percent disability rating for PTSD for the appeal period. 38 C.F.R. 4.130, Diagnostic Code 9411. The evidence does not show symptoms associated with a 100 percent rating: 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 absence of these symptoms is not outcome determinative. However, the Veteran also failed to show other symptoms of similar severity, frequency, and duration. Therefore, the Veteran does not meet the level of severity of the symptomatology required for a 100 percent rating, i.e. total occupational and social impairment. See Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although the June 2013 examiner stated that the Veteran had periods of dissociation, the Veteran has consistently denied having delusions or hallucinations and he has not shown symptomatology of deficiencies in most areas, particularly, work, judgment, thinking, or mood such that his symptoms equate to the severity, frequency, and duration of persistent delusions or hallucinations; gross impairment in thought processes or communication; 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; or memory loss for names of close relatives, own occupation, or own name. Therefore, the evidence of record simply does not support symptoms of such frequency, severity, or duration to warrant a 100 percent disability rating for PTSD for the appeal period. 38 C.F.R. 4.130, Diagnostic Code 9411. In addition, the Board notes that in accordance with Fenderson, supra, staged ratings have been considered, but because the Veteran's disability was fairly consistent throughout the period on appeal, a staged rating is not warranted. For the forgoing reasons, the Board finds that throughout the period on appeal, the Veteran's service-connected PTSD does not warrant an initial disability rating in excess of 30 percent. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. ORDER Entitlement to an initial rating for PTSD in excess of 30 percent is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs