Citation Nr: 1826656 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 13-28 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from August 1992 to August 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO, inter alia, granted service connection for PTSD and assigned an initial disability rating of 30 percent effective September 1, 2012. The Veteran timely filed a notice of disagreement (NOD) in March 2013 and a substantive appeal, via a VA Form 9 Appeal to the Board of Veterans' Appeals, in September 2013. In his September 2013 VA Form 9, the Veteran requested a videoconference hearing before the Board. In October 2015 correspondence, the Veteran was informed of his hearing that was scheduled for October 29, 2015. However, the Veteran failed to appear to the scheduled hearing. Furthermore, he did not request an additional hearing. The October 2015 hearing letter was not returned as undeliverable. Accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (d) (2017). In a September 2013 rating decision, the RO assigned a higher initial evaluation of 50 percent with an effective date of September 1, 2012 for service-connected PTSD. The Veteran has not indicated satisfaction with the increased rating that has been granted and the Board will therefore address this claim. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). FINDING OF FACT Throughout the entire period on appeal, the symptoms and overall impairment caused by the Veteran's service-connected PTSD have more nearly approximated occupational and social impairment with reduced reliability and productivity, but have not more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has raised any issues with regard to 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). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 of adjustment during periods of remission. The rating agency shall assign a rating 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(a). When evaluating the level of disability from a mental disorder, VA will also 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(b). The Veteran contends that he is entitled to a higher evaluation for his service-connected PTSD. He is currently rated as 50 percent disabling from September 1, 2012 for PTSD under 38 C.F.R. § 4.130, DC 9434-9400. Under the General Rating Formula, 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; in difficulty establishing effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 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. Id. When determining the appropriate disability rating to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-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 ward a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-24 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that 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. Vazquez-Claudio, 713 F.3d at 118. During the May 2012 VA examination, the Veteran reported that he is married with four children. He described "decent" relationships with his children and a "good" relationship with his spouse. He reported that he rarely did anything socially and only went out when he had to. He reported that he attended church but felt that this was a "have to attend" function for his life. He reported that he did nothing for relaxation, other than sit in his locked home. The Veteran reported current problems with irritability, anger, and anxiety. The examiner noted that the Veteran's symptoms included: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, and flattened affect. The examiner noted 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. VA treatment records from a physical conducted in November 2012 reflect that the Veteran reported that he was not driving because of his fear, as well as being isolated. He reported issues with bathing or hygiene because of his isolation. He reported he had trouble doing regular hygiene as a "normal person." He reported that he generally was not "fitting the world." He reported issues with his marriage. He reported that during his various activities, he felt that someone is always following him and he tried to watch around. He reported that he sometimes had visual hallucinations. He reported that he did not like people to be close to him physically and he always watched around and thought someone was going to attack him. He reported startled behavior and that he was always on guard. He reported that he enjoyed computer games. He reported that at night, he woke up and would check the house-checking the doors three to four times. He reported that he did not feel that he was hurting himself, but sometimes felt he might hurt someone. He reported at times he got very angry, but he did not have any experience where he attacked anyone or hurt anyone or hit anyone; it was just thoughts that came and went. Overall, he felt "confused." The physician noted that the Veteran was not suicidal and was not homicidal, though he had some thoughts. For example, if someone got him angry, he had some thoughts to hurt them, but not to kill them. He reported that he was able to control his anger to a certain extent. The physician noted that the Veteran's symptoms are multiple and most of them were still active. Subsequently, the Veteran was referred for a psychosocial assessment. VA treatment notes from November 2012 psychiatric care reflect that the Veteran was alert and oriented. His concentration and memory were good and his behavior was appropriate. The Veteran was depressed and anxious. He reported that his depression was at a "5" and his anxiety at a "7-8" on a scale of 1-10 with 10 being the worst. His insight and judgment were noted as good. His thought processes were good and he denied suicidal and homicidal ideation. VA treatment notes from February 2013 reflect that the Veteran reported hypervigilance. He reported that he never had any suicidal thinking or plans. A mental health noted his speech was spontaneous and moderate in tone and speed. His mood was euthymic and his affect was stable. He was oriented to person, place, and date. The examiner noted that he had no auditory or visual hallucinations. Additionally, he had no suicidal or homicidal ideation or plans. His judgment was noted as fair and insight as good. In a March 2013 statement, the Veteran reported that PTSD affects his daily activities because in order to maintain himself through the smallest activities, such as work, going shopping, or spending time in public, he had to remain medicated to the point where it is dangerous for him to drive or operate equipment. During a February 2014 psychiatric follow up, the Veteran reported that he felt that he had been more anxious. He denied depression and reported that he did not have any hopeless thoughts. He reported that at work he still had to take a moment to step out because he was irritable. He recounted that he knew that in the past this had been helpful. He stated that he also had some difficulty with his sleep, but that he was working on it. He was trying to eat healthy and he denied any abuse of alcohol or illicit substances. On mental status examination, the examiner noted that the Veteran had good hygiene and he was pleasant and cooperative. His speech was spontaneous of moderate tone and speed. His mood was anxious and his affect was stable sensorium. He was oriented to person, place, and date. Intelligence was above average thought process and content. There were no auditory or visual hallucinations as well as no suicidal or homicidal ideation or plans. His judgment was fair and his insight was good. His abstracting ability was appropriate. In his September 2014 substantive appeal, the Veteran reported that he is medicated for his PTSD. He stated that he had to travel two hours to work and has to operate heavy machinery at work. He reported that he could not take medication due to this during the day and he has to wait until the evening after work to take his medication. He reported that he needs the medication during the day because it is dangerous to himself and others. He reported that he has been disciplined at work due to his behavior. He reported that he could not function socially, at work, and with family during the evening. Upon review of the evidence of record, the Board finds that the Veteran's PTSD more nearly approximate the criteria required for a 50 percent disability rating and no higher. The Veteran has consistently reported feelings of depression, anxiety, irritability, isolation, sleep impairment, hypervigilance, suspiciousness, and panic attacks of less than once a week. At times, he had flattened affect and difficulty with short term memory. He also reported difficulty with work relationships as he would have to "take a moment" when he became irritable and he reported that he has been disciplined at work due to his behavior. Additionally, his relationship with his family was, at times, with issue. Moreover, on May 2012 VA examination, the examiner found that the Veteran 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. His symptoms and overall impairment did not, however, more nearly approximate the criteria for a rating of 70 percent or higher. As stated above, the Veteran denied suicidal and homicidal ideation. During the November 2012 physical, the physician noted that the Veteran was not homicidal, though he had some thoughts. The thoughts were explained as, for example, if someone got him angry, he had some thoughts to hurt them, but not kill them. Treatment records since the November 2012 physical reflect that the Veteran consistently denied homicidal ideation. Furthermore, examination and psychiatric treatment notes reflect that the Veteran maintained normal thought process and judgment, was oriented to time and place, and had normal speech. While the Veteran reported issues with hygiene during his November 2012 physical, treatment notes since the physical note good hygiene. Additionally, during the November 2012 physical, the Veteran reported hallucinations; however, during his May 2012 VA examination, he did not report hallucinations and subsequent to the November 2012, the Veteran continually reported that he did not experience auditory or visual hallucinations. Thus, it cannot be said that this symptom more nearly approximated the persistent hallucinations listed in the criteria for a 100 percent rating. Finally, the Veteran maintained relationship with his family, albeit, at times, there were difficulties. Thus, the evidence reflects that the symptoms and overall impairment more nearly approximated the difficulty in establishing and maintaining effective work and social relationships listed in the criteria for a 50 percent rating rather than the inability to do so listed in the criteria for a 70 percent rating. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board"(quoting Dingess v. Nicholson, 19 Vet.App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). As indicated by the cases cited above, the criteria in the general rating formula for mental disorders include both the symptoms listed and symptoms "such as" those listed, along with the overall impairment caused by these symptoms. This broad language contemplates all of the symptoms even though they are not specifically listed. Finally, as the Veteran continued to work full time throughout the appeal period, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). For the foregoing reasons, an initial disability rating in excess of 50 percent for PTSD is not warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs