Citation Nr: 1827237 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 12-23 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to initial evaluations in excess of 50 percent, prior to September 4, 2014, and in excess of 70 percent from September 4, 2014, for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from April 1967 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The case is currently under the jurisdiction of the RO in Columbia, South Carolina. The Veteran testified before the undersigned at a January 2016 Video Conference hearing. The hearing transcript is of record. In April 2016, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. Prior to July 14, 2014, the Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Beginning July 14, 2014, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. Prior to July 14, 2014, the criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. Beginning July 14, 2014, the criteria for an initial 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). 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. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 9411, a 50 percent rating is warranted if 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 warranted 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score ranging from 31 to 40 is appropriate where there is "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work." Id. A score of 41 to 50 is indicated where there are "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51 to 60 is appropriate where there are, "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. A score of 61 to 70 is indicated when there are, "Some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Analysis In a July 2010 rating decision, the RO granted service connection for PTSD. A 30 percent evaluation was assigned, effective August 17, 2009. The Veteran appealed this initial rating. In an August 2016 rating decision, the RO granted an increased evaluation of 50 percent for the service-connected PTSD from August 17, 2009, and an increased rating of 70 percent, effective September 4, 2014. The Veteran continues to appeal the assigned ratings. Period Prior to July 14, 2014 On VA examination in October 2009, the Veteran reported sleep impairment, resulting in tiredness and irritability; episodes of depression lasting 3-4 days at a time; brief panic attacks twice a week; and continuous flashbacks and nightmares. On mental status examination, orientation was full, appearance was normal, speech was normal and attitude was positive. Affect was blunted and mood was euthymic. There was no evidence of paranoia, delusions, hallucinations or suicidal or homicidal ideations. Judgment, intelligence and insight were adequate. Memory was normal. The examiner diagnosed PTSD and provided a GAF score of 55. Treatment records from the Charleston Vet Center, dated from July 2013 to September 2014, are of record. Although these records indicate what topics were discussed during the Veteran's group counseling; they do not specifically identify the Veteran's reported symptoms at that time. See treatment records from the Charleston Vet Center, dated from July 2013 to September 2014. As such, the Board finds that these records do not provide the information necessary to determine if the Veteran meets the criteria for an increased rating. Although the Veteran endorsed symptoms of severe depression and frequent panic attacks during this period, the evidence does not show deficiencies in most areas. In this regard, there is no evidence of symptoms such as suicidal ideation, obsessional rituals, spatial disorientation or neglect of personal hygiene. The Veteran did report irritability, but this was reported in conjunction with fatigue. Furthermore, speech was normal and judgment and insight were adequate. There is also no evidence during this period showing that the Veteran's family relations or employment was notably impaired due to his PTSD. In summary, the Board finds that the Veteran may have demonstrated some of the symptoms required for a rating in excess of 50 percent for PTSD during this period. However, his major symptoms during this period appear to be sleeping problems, flashbacks, nightmares, anxiety with panic attacks, fatigue with irritability, depression and disturbance of mood. His symptoms were not of such frequency, severity or duration so as to approximate the criteria for a higher rating. Therefore, the Board finds that his symptoms more nearly approximate the criteria for a 50 percent rating, and a rating in excess of 50 percent for PTSD is not warranted prior to July 14, 2014. Period Beginning July 14, 2014 A July 14, 2014 statement from the Veteran's therapist at the Charleston Vet Center indicates that the Veteran was experiencing frequent nightmares, vivid memories and flashbacks, difficulty sleeping and short- and long-term memory problems. He also reported social isolation and hyperarousal symptoms, as well as problems trusting, paranoia and ritualistic behavior-checking doors and windows for safety prior to bed and during the night, periodic unprovoked outbursts of irritability and uncontrollable rage and anger, depression and past suicidal ideation. The Veteran also reported that he had problems adapting to stressful situations and that due to his paranoia, he kept a weapon near him most of the time, including when sleeping and, therefore, he posed a persistent danger of hurting others. The therapist concluded that the Veteran's PTSD interfered with his ability to function effectively, and that he had definite impairment in social and occupational functioning and his affect was flat. On VA examination in September 2014, the Veteran reported a good relationship with his second wife and his daughter, but he was estranged from his son due to arguments. He had minimal friends, but attended social events in his community. He continued to complain of poor sleep and anxiety, but noted that his prescribed medication helped "level him out" and prevented panic attacks. He also complained of increased intrusive thoughts and hypervigilance (keeping a handgun at his bedside), occasional nightmares leading to full physiological arousal and excessive perimeter sweeps to insure his safety. He also reported increased feelings of worthlessness due to a reduction in activity, and as a result, a deepening sense of numbness and dissatisfaction. The examiner noted that the Veteran's affect was full-ranged, but his mood was somewhat dysthymic with some underlying angst. Communication was fine, thought process was clear, cognitive functioning was adequate and there was no evidence of psychosis. The examiner concluded that the Veteran had become increasingly avoidant (quit working and moved into the country) as a mechanism to reduce his anxiety. There was a concern that this strategy was fostering worsening depression, as he recognized that he was giving up too many stimulating activities to cope with his anxiety/irritability. Regarding employability, the examiner concluded that the Veteran's anxiety would likely interfere with his ability to work as a physical therapist due to the intensity of his intrusive thoughts as he engaged with patients. In summary, the examiner concluded that the Veteran's PTSD caused 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 the Charleston VA Medical Center dated from September 2014 to January 2016 show that the Veteran continued to take several different psychotropic medications. He reported increased nightmares in 2015, but denied suicidal or homicidal ideation, symptoms of psychosis or mania. On VA examination in May 2016, the examiner noted that there had been no significant changes in the Veteran's social/marital/family circumstances since his last examination in September 2014. With regard to social functioning, he continued to live with his second wife of 8 years. He was still estranged from his son, but he kept in contact with his daughter and he and his wife occasionally spent time with his sister and he had occasional contact with his two brothers. The Veteran also noted that he had "superficial" social contact with his neighbors, but no other real intimate social relationships. He also noted that he attended a weekly Veteran's support group at the Vet Center, and he participated in the Guitars for Vets program, which he enjoyed. The Veteran continued to complain of sleep impairment, panic attacks several times a week, active intrusive thoughts and occasional episodes of road rage. On mental status examination, his speech was normal, he denied current or recurrent homicidal or suicidal ideation, bizarre or delusional beliefs or morbid preoccupations. He complained of impaired concentration, but there was no evidence of significant impairment in basic cognitive functioning. Reasoning, recall, judgment, concentration and communication abilities appeared to be within normal limits. His primary expressed concern was his irritability, disrupted sleep with nightmares, hypervigilance and hyperarousal, and inability to tolerate frustration in social interactions. The examiner concluded that the Veteran's PTSD caused 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. A July 2016 PTSD Disability Benefits Questionnaire (DBQ) indicates that the Veteran was divorced from his first wife, but had remarried. He was estranged from his son with no communication. It was also noted that due to his inability to tolerate stresses associated with his daily work demands from clients and management, which resulted in an increased and constant state of hypervigilance and intrusive thoughts, he was no longer gainfully employed in his profession. He was noted to have feelings of detachment or estrangement from others and it was noted that his PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner concluded that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas. Treatment records from the Charleston Vet Center, dated from September 2014 to August 2016 are of record. Although these records indicate what topics were discussed during the Veteran's group counseling; they do not specifically identify the Veteran's reported symptoms at that time. See treatment records from the Charleston Vet Center, dated from September 2014 to August 2016. As such, the Board finds that these records do not provide the information necessary to determine if the Veteran meets the criteria for an increased rating. Based on the evidence noted above, and resolving all doubt in the Veteran's favor, the Board finds that as of July 14, 2014, the Veteran's PTSD symptoms more nearly approximated the criteria for a 70 percent rating, based on occupational and social impairment, with deficiencies in most areas. Specifically, the Board notes that as early as July 14, 2014, during treatment at the Charleston Vet Center, the Veteran reported symptoms of social isolation, hyperarousal symptoms, problems trusting, paranoia, ritualistic behavior, unprovoked outbursts of irritability and uncontrollable rage and anger, persistent danger of hurting others (sleeping with a gun nearby) depression, past suicidal ideation and problems adapting to stressful situations. However, the evidence for this period does not show that the Veteran has total social and occupational impairment. In this regard, the record reflects that the Veteran had a good relationship with his second wife as well as his adult daughter. He also reported as recently as 2016 that he had some form of relationship or contact with his sister and brothers. Furthermore, although he alleges that he does not have any close friendships, the Veteran has reported that he attends social events in his community and a PTSD support group. Moreover, the Veteran has been retired for several years, and examiners have noted that his PTSD would make it difficult for him to work in his previous profession as a physical therapist. However, the evidence does not conclusively show that he would not be able to work in any profession due to his PTSD. Moreover, none of the examiners during this period concluded that the Veteran's PTSD caused total social and occupational impairment. There is no evidence of total occupational and social impairment of record. As the evidence does not show that the Veteran is totally socially and occupationally impaired, a rating in excess of 70 percent is not warranted for the period beginning July 14, 2014. Consideration under 38 C.F.R. § 3.321(b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). (CONTINUED ON NEXT PAGE) ORDER Prior to July 14, 2014, a rating in excess of 50 percent for PTSD is denied. For the period beginning July 14, 2014, a 70 percent rating, but no higher, for PTSD, is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs