Citation Nr: 1829229 Decision Date: 05/24/18 Archive Date: 06/12/18 DOCKET NO. 14-28 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1970, with additional service in the United States Army Reserve. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDING OF FACT During the appeal period, the Veteran's PTSD has been characterized by panic attacks more than once a week, impaired memory and abstract thinking, and severe disturbances of motivation and mood; occupational and social impairment, with deficiencies in most areas, has not been shown. CONCLUSION OF LAW During the appeal period, the criteria for a 50 percent rating, but no more, have been met. 38 U.S.C. §§ 1110 , 1155 (2014); 38 C.F.R. §§ 4.1 , 4.2, 4.6, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained, or made all required attempts to obtain, the Veteran's VA treatment records, service treatment records, VA examination reports, military personnel records, and statements from the Veteran and his representative. Neither the Veteran nor any of his past representatives notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c) (2017). VA provided relevant and adequate examinations in July 2010, March 2012, and June 2012. The examiners reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These examinations also utilize the DSM-IV criteria rather than DSM-V. However, given that the Board is granting a rating in excess of 30 percent, and given that the Veteran's symptoms do not approximate a 70 percent rating, a remand for such an examination is likely to unnecessarily delay adjudication of this matter. Moreover, the record contains evidence of examinations, including psychiatry notes dated March 2015, utilizing a DSM-V diagnosis. The Board notes that the Veteran missed a VA examination in January 2016, but asserts that there was good cause for missing this exam. However, the Board need not adjudicate whether a new examination is necessary, as the Veteran's representative explicitly stated that a new examination was not necessary, and that his prior VA examinations and other evidence of record was adequate to reflect that an increased rating was warranted. Therefore, in order to prevent potentially unnecessary delays, the Board will adjudicate the appeal based on the evidence of record. Accordingly, all available and relevant records have been obtained and associated with the claims file. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating The Veteran is presently service connected for PTSD, rated as 30 percent disabling for the period on appeal. He contends that he is entitled to a higher rating for this disability due to a worsening of his condition. The Board finds that he is entitled to a rating of 50 percent, but no more, for PTSD. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1 (2017). Where, as in the case of the Veteran's PTSD, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here 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 (2017). The Veteran's PTSD is rated under 38 C.F.R. 4.130 (2017), Diagnostic Code 9411, which provides the general rating formula for mental disorders. Under the applicable diagnostic criteria, a 30 percent rating is granted 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). 38 C.F.R. 4.130, Diagnostic Code 9411 (2017). A 50 percent rating is assigned for 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. Id. 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 ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); and inability to establish and maintain effective relationships. Id. 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 examination. See 38 C.F.R. § 4.126 (a) (2017). Further, 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) (2017). 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 (2017). Based on the evidence of record, a rating of 50 percent, but no more, is warranted for the Veteran's PTSD. Specifically, while the evidence indicates that the Veteran's symptoms are characterized by occupational and social impairment with reduced reliability and productivity, they do not rise to the level of occupational and social impairment, with deficiencies in most areas. Throughout the appeal period, the Veteran maintained normal hygiene and appearance, clarity of speech and thought and alertness. For example, throughout the period on appeal, the Veteran demonstrated normal alertness and clarity of speech and thought. In a note dated February 2012, a mental health professional found the Veteran alert and oriented to person, place, and day. His hygiene and grooming were appropriate and he maintained appropriate eye contact. His speech was coherent, relevant, and goal directed. Notes dated August 2015, August 2016, and December 2016 made similar observations. The Veteran's immediate attention was intact. While his affect ranged from "pleasant" in a June 2012 mental states evaluation, to "congruent" in evaluations dated March and September 2014, to "reserved" beginning in August 2016, this lack of affect is less severe than the flattened affect required for a 50 percent rating. Further, the examiners who studied the Veteran's mental status in February 2012, June 2012, and as recently as June 2015 found the Veteran fully oriented, despite his mood disturbances. While the Veteran suffers from disturbances of motivation and mood, these disturbances are adequately reflected in the 50 percent rating assigned in this decision. The Veteran's mood was reflected as fair to euthymic in several medical records, including visits dated October 2013 and March 2014. However, later records describe it as worsening. For example, an August 2015 medical record indicates that with medication, the Veteran's temper flares are under control; this implies that without medication, the Veteran would experience lack of temper control. Further, the Veteran, in his June 2012 VA examination, and his Notice of Disagreement dated August 2013, complains of a lack of motivation to follow his hobbies of fishing and riding his motorcycle, or to take care of household chores. Finally, an August 2016 psychiatry note shows an edgy, irritable mood related to an increase in the Veteran's stress level. Moreover, psychiatry notes dated June 2012, September 2014, and December 2015 describe panic attacks. The December 2015 note states that the attacks come at a frequency of one to five per week. However, such panic attacks are contemplated in his current rating scheme, and do not reflect the near-continuous panic mentioned in the criteria for a 70 percent rating. In addition, there is evidence in the record reflecting periods of domestic disturbance that could be construed as impaired impulse control contemplated in a 70 percent rating. For example, the Veteran's ex-wife relates in a December 2015 affidavit that the Veteran's mood swings have had an impact not only on their marriage, but on their sons' lives as well. However, through the period on appeal, the Veteran has shown the ability to control his impulses and regulate his emotions. Indeed, "near continuous panic" and "depression affecting the ability to function independently" have not been shown. Further, despite bouts of anger, anxiety, and depression, the Veteran is able to function independently and was found able to manage his own financial affairs by all of his examiners. The Veteran's chronic sleep impairment, while notable, is contemplated by his current rating under DC 9411. Specifically, the Veteran told his June 2012 examiner that he has nightmares three to four nights per week, and that he gets four to five hours of sleep, and that he would always wake up thinking about the military. Likewise, he told his December 2015 examiner that his sleep is poor and that he sleeps about two to three hours before he startles awake. The Trazodone with which this disturbance is treated leaves the Veteran with a hangover effect. While the Veteran has some mechanisms to cope with sleep disturbances, an August 2016 psychiatry note reflects an increase in disturbed sleep and nightmares. Such sleep disturbances, while undoubtedly unsettling, are not uncommon with PTSD. Further, the Veteran has not alleged periods of absence from work due to lost sleep. Accordingly, any resulting occupational or social impairment is contemplated in the Veteran's current 50 percent rating. Despite notes dated February 2012 and June 2012 indicating a grossly intact memory, the Veteran self-reports diminishing short term memory at several points in the record. For example, the Veteran stated in an August 2011 note that his concentration and memory had receded, and in June 2012, he told his examiner that his short term memory and concentration had not been the same. These complaints are contemplated by his current 50 percent rating and a higher rating is not necessary to address them. Similarly, the Veteran's judgment at all times on appeal was fair. He showed few impulse control problems, and no hallucinations or delusions during the appeal period, which would justify a rating in excess of 50 percent. Finally, throughout the period on appeal, the Veteran has had no delusions or hallucinations. The Board acknowledges that the Veteran's wife's affidavit mentions an unspecified time period in which the Veteran said he was suicidal. Moreover, a letter from the Veteran's attorney dated November 2014 states that the Veteran had suicidal thoughts earlier that year. However, the record does not reflect a frequency and intensity of these thoughts sufficient to merit a 70 percent rating. Thus, the Veteran's general cognitive state most resembles his current 50 percent rating. Based on the symptoms clinically observed, the Veteran has experienced some of the relevant symptoms that might support a rating in excess of 50 percent. For example, he has exhibited spatial disorientation, neglect of his personal appearance and hygiene, and difficulty in adapting to stressful circumstances. According to a February 2018 lay statement, the Veteran also obsesses over locking doors and looking out of windows to make sure he is safe. However, these symptoms do not reach the degree required to demonstrate occupational and social impairment with deficiencies in most areas. The criteria for the next-higher 70 percent rating depict a level of impairment, when viewed as a whole, that is more severe than the symptoms displayed by the Veteran. Indeed, many of these objective symptoms, such as obsessional rituals which interfere with routine activities, and illogical, obscure, or irrelevant speech, have not been demonstrated. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of total occupational and social impairment, to include social and occupational inadaptability. In this regard, it is clear that the Veteran's service connected PTSD impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 50 percent is warranted. During the period on appeal, the Veteran has demonstrated a family life, albeit a somewhat strained one. As history, his July 2010 examiner observed that the Veteran and his wife divorced in approximately 1990. While they live in the same house, they remain on opposite sides and limit their interaction, evidently due to his unpredictable mood. The Veteran has two sons. In a March 2012 evaluation, the examiner noted that the Veteran's relationship with his children is not bad. The Veteran also has a good relationship with one of his two living brothers, and that the two often fish together. The Veteran told his June 2012 examiner that he has a small group of fellow veterans that he and his ex-wife will visit together on occasion. Any difficulty the Veteran experiences in establishing social relationships is contemplated in his current 50 percent rating and does not reflect occupational and social impairment with deficiencies in most areas. Likewise, any occupational inadaptability is also reflected in the Veteran's current rating. The Veteran retired from his long-time position in a power plant in February 2012. According to a statement dated October 2011, the Veteran's former manager observes some struggling with concentration issues and retaining what the Veteran had just read in a memo or equipment manual. Some short term memory impairment was also observed, as the Veteran had been forgetting things that have always stuck with him. Indeed, the Veteran himself maintains that he had been having trouble concentrating at his job and was concerned he might cause injury to himself or others. However, he Veteran denied ever getting a negative write up or a verbal reprimand. While the Veteran's diminished concentration and lapses in short-term memory affect his occupation, such impairment of abstract thinking and memory loss are contemplated in his current 50 percent rating. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his PTSD is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a 50 percent rating is warranted for the Veteran's PTSD for this period. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Further, the record does not reflect hospitalization or other marked interference with his employment during the period on appeal. Moreover, while a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, no relevant symptoms have been excluded in the Board's analysis. See Mauerhan, 16 Vet. App. at 444. As such, the Veteran's symptoms are not so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration. While the Veteran claims to have retired due to his PTSD symptoms, the Veteran does not contend, and the evidence does not show, that his service-connected disabilities, as a whole, render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). For the foregoing reasons, a rating in excess of 50 percent is not warranted for the period on appeal. ORDER For the period on appeal, an increased rating of 50 percent, but no more, for post-traumatic stress disorder (PTSD) is granted. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs