Citation Nr: 1826097 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 13-12 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to November 14, 2013. 2. Entitlement to an evaluation in excess of 50 percent for PTSD beginning on November 14, 2013. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted the Veteran service connection for PTSD with an evaluation of 10 percent. In July 2017, the Board remanded the case for further development. In December 2017, the Appeals Manager Center granted an increased rating of 50 percent for PTSD, effective November 14, 2013. The Board notes that this does not represent a full grant of the benefit sought, and therefore entitlement to a higher initial rating is still on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT For the entire appeal period, the Veteran's PTSD has been productive of occupational and social impairment with reduced reliability and productivity, with symptoms including a flattened affect and panic attacks. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent prior to November 14, 2013 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an evaluation in excess of 50 percent for the period beginning November 14, 2013 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. The General Rating Formula for Mental Disorders provides for a 10 percent rating for mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or when symptoms are controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is assigned for 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). Id. The criteria for a 50 percent rating are 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; and difficulty in establishing and maintaining effective work and social relationships. Id. The criteria for a 70 percent rating are 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. Id. The criteria for a 100 percent rating are 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); or disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. Id. Furthermore, as the United States Court of Appeals for the Federal Circuit (Federal Circuit) explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "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). Additionally, 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, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The Veteran was afforded a VA examination in August 2009. The Veteran reported being argumentative and upset easily. On examination, the examiner noted the Veteran exhibited flattened affect, poor attention and concentration, panic attacks, sleep impairment, irritability, avoidance behaviors, and loss of interest in activities the Veteran once found enjoyable. April 2010 VA treatment notes with M.M., Ph.D. recorded the Veteran exhibiting symptoms of sleep impairment, waking up at night to check the locks in his home, low energy, irritability, poor concentration, depressed mood, suicidal ideations, anxiousness, jumpiness, and hypervigilance. The examiner diagnosed the Veteran with severe PTSD, anxiety disorder, depressive disorder, and difficulty spending time with others. In a January 2012 statement, the Veteran reported nightmares, an aversion to large crowds and loud noises, isolation, and depression. In a March 2013 VA treatment notes, the Veteran reported he experienced nightmares, intrusive thoughts, hypervigilance, flattened affect, feelings of hopelessness, anxiety, depression, sleep impairment, and was easily angered. The Veteran also reported that suicidal ideations occurred 10 years prior when his wife left him. The examiner found the Veteran exhibited speech at a retarded pace, flattened affect, tense motor activity, and sleep impairment. A November 14, 2013 VA treatment note indicates that the Veteran was anxious and labile recently ("cries inside"). Citing this record, the VA Appeals Management Center increased the Veteran's evaluation for PTSD to 50 percent effective from the same date in a December 2017 rating decision. The Veteran was afforded a new VA examination in August 2017. The examiner found occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. On examination, the Veteran exhibited suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, and inability to establish and maintain effective relationships. The examiner also noted the Veteran would likely have difficulty socially due to his anxiety and his irritability and agitation when around others which caused the Veteran to lash out. The Veteran PTSD was initially evaluated at 10 percent disabling. Based on the medical and lay evidence, the Veteran's PTSD initially met the criteria necessary to warrant an evaluation of 50 percent. When viewing the evidence in a light most favorable to the Veteran, during the August 2009 examination, the Veteran's symptomatology included panic attacks, chronic sleep impairment, disturbances in motivation and mood, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. The complete symptomatology most closely approximated a 50 percent evaluation, and therefore an evaluation of 50 percent from April 10, 2009 to November 13, 2013 is warranted. As the Veteran PTSD is currently evaluated at 50 percent disabling, the Veteran's PTSD symptomatology must more closely approximate the criteria of 70 percent under Diagnostic Code 9411 to warrant an increased evaluation. Based on the medical and lay evidence, the Veteran's PTSD does not meet the criteria necessary to warrant an evaluation in excess of 50 percent at any point during the appeal period. The record is negative for current 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; and neglect of personal appearance and hygiene. He has most recently been described as having occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran did display symptoms of difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, and impaired impulse control. The Board notes that although some of the Veteran's symptoms do meet the criteria of 70 percent, the majority of symptoms and the overall findings as to social and occupational impairment most closely correlate to the criteria for a 50 percent evaluation. Accordingly, the 50 percent evaluation is warranted for the entire appeals period. This determination represents a grant for the period prior to November 14, 2013 and a denial for the subsequent period. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the record reflects that the Veteran submitted a May 2013 resignation letter which cited PTSD as his reason for resigning, and an October 2016 letter from the Fresno Vet Center Readjustment Counseling Service where the social worker noted the Veteran had not been able to be gainfully employed since 2013. Subsequently, during the August 2016 Board hearing, the undersigned Veterans Law Judge asked the Veteran if he could work again given the PTSD and the Veteran said "[he] could probably work" if in a better job situation than the one he resigned from. During his August 2017 examination, he indicated that he did not like to be supervised and had not sought employment since that time due to unspecified "medical issues" and because he does not believe he would be able to work effectively with others. Overall, the Board finds that the Veteran has indicated significant interference with employment due to PTSD symptoms - and his current rating (and the partial grant made in this decision) reflect this - but has not made statements suggesting that he is precluded from securing or following a substantially gainful occupation due to the same symptoms. Moreover, there is no other evidence or record suggesting that the Veteran is unable to secure or follow a substantially gainful occupation on account of PTSD. Accordingly, the Board finds that entitlement to TDIU has not been raised by this evidence of record and does not consider such a claim to be part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER An initial disability rating of 50 percent is granted for PTSD for the period prior to November 14, 2013, subject to the laws and regulations governing monetary benefits. A disability rating in excess of 50 percent for PTSD beginning on November 14, 2013 is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs