Citation Nr: 1821801 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 11-03 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial rating in excess of 50 percent prior to July 28, 2016, for posttraumatic stress disorder (PTSD). REPRESENTATION The Veteran is represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In January 2012, the Veteran testified at a videoconference hearing at the RO, before the undersigned Veterans Law Judge. In a letter dated in February 2013, the Veteran was advised that the undersigned was no longer at the Board and given a choice as to whether he wanted another hearing. Thereafter, he chose to have another videoconference hearing before a different Veterans Law Judge, which was held in June 2013. By letter dated in May 2014, the Veteran was advised that the second Veterans Law Judge who conducted the hearing in June 2013, no longer worked at the Board, and he was again offered the opportunity to have another hearing. The Veteran was given 30 days to respond to the letter, but no response was received by the Board. Given that the undersigned Veterans Law Judge, who conducted the January 2012 hearing, has returned to the Board, that Judge will participate in the decision made on this appeal in accordance with 38 U.S.C. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2017). The transcripts for both hearings have been associated with the claims file. In a May 2017 decision, the Board denied the Veteran's above-captioned claim, as well as entitlement to a rating in excess of 70 percent on and after July 28, 2016, for PTSD. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court), but only in regard to the issue of entitlement to an initial rating in excess of 50 percent prior to July 28, 2016, for PTSD. As such, the issue of entitlement to a rating in excess of 70 percent on and after July 28, 2016, is considered abandoned and will not be addressed herein. In December 2017, the involved parties filed a Joint Motion to Vacate and Remand (Joint Motion), asking the Court to vacate that part of the Board's May 2017 decision that denied the claim of entitlement to a rating in excess of 50 percent prior to July 28, 2016, for PTSD. By a December 2017 Order, the Court granted the Joint Motion and remanded the matter to the Board for action consistent with the directives of the Joint Motion. FINDING OF FACT Prior to July 28, 2016, the Veteran's PTSD symptoms have been productive of no more than social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 70 percent, but not more, for PTSD, prior to July 28, 2016, have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.4, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (2017). Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. The Veteran's service-connected PTSD has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Pursuant to Diagnostic Code 9411, 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- 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned 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. Id. A 100 percent rating is assigned for 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, or for the Veteran's own occupation or name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. On a VA examination in March 2011, the Veteran described his relationship with his parents and brother as "fine." It was noted that the Veteran worked full time, and that he reported a history of steady work with only mild deficits in occupational functioning. He endorsed a history of problems with interpersonal relationships, including problems with anger. He reported having a healthy relationship with his wife and family, but did endorse occasional feelings of detachment and emotional unavailability. He had friends, and occasionally engaged in activities and hobbies such as going to church, but also occasionally isolated and had difficulty finding pleasure in most activities. He reported experiencing mild to moderate psychological distress since his discharge from the military. It was noted that he met the criteria for a diagnosis of chronic PTSD, and that prominent among his symptoms were intrusions, including nightmares several times a week, with themes of being in Vietnam; recurrent and intrusive recollections of the events, typically triggered by news of death and dying; avoidance symptoms including efforts to avoid thoughts, feelings, or conversations, as well as activities, people, and places that may remind him of the trauma; anhedonia; social isolation and withdrawal; and arousal symptoms including disrupted sleep, irritability, and anger problems. The Veteran denied a history of suicide attempts but did endorse a history of fleeting thoughts of suicide. On mental status examination, the Veteran presented as well-groomed, alert and oriented, and with appropriate eye contact and speech within normal limits. His mood was dysphoric and affect was appropriate to content. He did tear up on more than one occasion, but managed to maintain his composure. His thought processes were logical, coherent, and goal directed, and his thought content was within normal limits. There was no evidence of auditory or visual hallucinations and he denied suicidal and homicidal ideation. Insight and judgment appeared to be grossly intact. The examiner opined that the Veteran's PTSD symptoms have caused moderate psychological distress since his discharge from service and had intensified in recent months, and that according to this examination, his PTSD symptoms were likely having a mild impact on his ability to maintain steady employment, his ability to maintain close interpersonal relationships, and his social life, as he has few friends and isolates himself from others. On a VA examination in January 2014, the diagnosis was chronic PTSD. It was noted that the Veteran continued to have chronic insomnia and nightmares, and he reported having avoidance, hyperarousal, and negative alterations of cognitions and mood symptoms, including irritable behavior and angry outburst (with little or no provocation). It was noted that he recently experienced a worsening of PTSD symptoms following the death of a peer from his PTSD therapy group in September 2013, and earlier this year, after the Boston marathon attacks, he also had an exacerbation in PTSD symptoms. The examiner summarized the Veteran's level of impairment with regard to PTSD, as 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. The Veteran described his relationship with his wife as strained, but reported positive relationships with his adult children. He reported that his mother was 93 and he spoke with her daily, visited her a few times a month, and took care of her financially, with little to no support from his brother, which was a source of distress and conflict for him. He also reported that his closest friend, whom he had been friends with for over 50 years, passed away a few years ago. He indicated that his social activities were limited to activities with his children and grandchildren. He continued to work full time at PepsiCo in finance. It was noted that work was a positive setting for him and he enjoyed work. He anticipated retiring in a few years and possibly moving to Florida, with or without his wife. For the past three years the Veteran attended group therapy for PTSD, but the group leader, who the Veteran also saw for individual counseling, had retired and he was exploring different mental health support options. He was recently off all medication due to adverse side effects. It was noted that the he had tried numerous pharmacological regimens to address nightmares and PTSD symptoms, but had discontinued medications due to side effects. The symptoms related to the Veteran's PTSD included depressed mood, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, or recent events. On examination, the Veteran was found to be well-groomed. It was noted that he was difficult to engage in the interview, discussing past symptoms and difficulties at length without prompting, and the examiner also noted that it was somewhat difficult to redirect the Veteran to discuss current functioning and difficulties since his last examination. On a VA examination in July 2016, the examiner summarized that the Veteran experienced occupational and social impairment with reduced reliability and productivity. On examination, the Veteran reported that he is married, but did not endorse a healthy relationship with his wife. His mother had passed away and he was relatively estranged from his siblings. He reported having few friends and he endorsed a pattern of feeling detached and estranged from others. He rarely engaged in activities/hobbies and he isolated, and endorsed a pattern of irritability and occasional problems controlling his anger; which he attributes to having a short fuse. He reported he had been steadily employed for the past 50+ years as a business executive, and those last 25+ years with PepsiCo. He reported only mild deficits in occupational functioning related to symptoms of PTSD, stating that he preferred to remain busy. He expressed significant concern regarding his potential retirement and how that could impact his mental health; particularly PTSD symptoms. He did not report a history of difficulties with the law and denied a history of violence since his last examination. Symptoms associated with his PTSD included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and obsessional rituals which interfere with routine activities. On mental status examination, the Veteran was observed as relatively well-groomed, alert, and oriented. The examiner noted that rapport was gradually established and maintained throughout the evaluation, and that the Veteran's eye contact was appropriate and speech was within normal limits. His mood was dysphoric and his affect was generally flat. His thought processes were logical, coherent, and goal directed, and thought content was within normal limits. There was no evidence of hallucinations, and the Veteran did not endorse current suicidal or homicidal ideation. He did endorse a history of periodic suicidal ideation, but did not endorse recent intent and/or a recent plan. His insight and judgment appeared to be grossly intact. The examiner noted that since the Veteran was last examined in 2014, he continued to endorse significant psychological distress due to symptoms of PTSD, resulting in an increase in deficits in occupational and social functioning, with the majority of deficits impacting his social functioning. During the period prior to July 28, 2016, the Veteran exhibited a dysphoric/depressed mood on clinical evaluation, and also reported having nightmares, recurrent and intrusive recollections, avoidance symptoms, anhedonia, social isolation and withdrawal, and arousal symptoms including disrupted sleep, irritability, and anger problems, among other symptoms. With respect to how his PTSD symptoms impair social functioning, the Veteran did not have a total inability to establish and maintain effective relationships; rather, he had difficulty with relationships. As discussed above, the Veteran endorsed problems with interpersonal relationships, including problems with anger, during the March 2011 VA examination. However, the Veteran also reported having a healthy relationship with his wife and family, including parents and brother. He reported occasional feelings of detachment and emotional unavailability. During the January 2014 VA examination, he reported a strained relationship with his wife, but positive relationships with his adult children. He had a good relationship with his mother, but his relationship with his brother was a source of distress and conflict for him because he did not help take care of their mother. During the March 2011 VA examination, he reported having friends and occasionally engaging in activities and hobbies, such as going to church, but also that he occasionally isolated himself and experienced difficulty finding pleasure in most activities. During the January 2014 VA examination, he indicated that he limited himself to activities with his children and grandchildren. Accordingly, the Veteran experienced deficiencies with interpersonal relationships, although not of such severity, frequency, and duration to cause a total impair of social functioning. The evidence of record demonstrates that the Veteran experienced deficiencies in his mood, including having a dysphoric and depressed mood on clinical evaluation. Further, during the January 2014 VA examination, the Veteran exhibited mild memory loss, impaired impulse control (irritable behavior and angry outbursts), despite the clinical evaluations that showed he had good judgment, normal thinking, and normal cognitive functioning. Regarding occupational functioning, the evidence of record shows, at worst, minimal impairment, as the Veteran continued to work full time during the period prior to July 28, 2016. On the VA examination in March 2011, the Veteran reported a history of steady work with mild deficits in occupational functioning. Further, during the January 2014 VA examination, he stated that he continued to work full time, that work was a positive setting for him, that he greatly enjoyed work, and anticipated retiring in a few years. The Board notes that the Veteran's symptoms due to PTSD did not result in near continuous panic or depression that affected his ability to function independently, appropriately, and effectively during this period. Rather, the evidence shows that, although the Veteran exhibited a depressed mood, he was able to independently and effectively function during this period. Additionally, he was found to be alert and oriented on clinical evaluation. With respect to suicidal ideation, the Board notes that on the VA examination in March 2011, the Veteran denied a history of suicide attempts, but did endorse a history of fleeting thoughts of suicide. Further, during the January 2012 hearing, the Veteran testified that he harbored thoughts of suicide since 1970, and, according to a June 2012 VA treatment report, he endorsed intermittent, passive suicidal ideation. There were no findings of speech problems or neglect of hygiene, but the Veteran testified about experiencing auditory and visual hallucinations. Accordingly, the Board finds that the evidence of record relevant to the period prior to July 28, 2016, shows that the Veteran's PTSD symptoms at least as likely as not more nearly approximated occupational and social impairment, with deficiencies in most areas, but not total social and occupational impairment. Consequently, the Board finds that a 70 percent rating, but not more, is warranted prior to July 28, 2016. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Prior to July 28, 2016, a 70 percent rating, but not more, for PTSD is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs