Citation Nr: 19115992 Decision Date: 03/05/19 Archive Date: 03/05/19 DOCKET NO. 14-16 639 DATE: March 5, 2019 ORDER Entitlement to an initial rating of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT For the entire period on appeal, the Veteran’s PTSD more closely approximated social and occupational impairment with deficiencies in most areas. CONCLUSION OF LAW For the entire period on appeal, the criteria for an initial rating of 70 percent, but not higher, for PTSD have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1970 to December 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was most recently before the Board in December 2017, at which time the appeal was remanded for further development. The case has now been returned to the Board for appellate action. In connection with this appeal, the Veteran and his girlfriend, testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2017 and the Veteran accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. In an April 2018 rating decision, the Veteran was assigned a 50 percent rating for his PTSD, effective April 23, 2018. That does not constitute a full grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. Increased Rating - PTSD The Veteran has asserted that he should have higher ratings for his PTSD as his symptoms are worse than those contemplated by the currently assigned ratings. The medical evidence of record reflects that the Veteran endorsed psychiatric symptomatology that included suicidal ideation; significant legal issues; persistent marijuana use; suspiciousness; panic attacks; hyperarousal; anxiety; avoidance behaviors; chronic sleep impairment; mild memory loss; flattened affect; interpersonal relationship issues; obsession rituals; impaired impulse control; nightmares; isolation; irritability; inability to experience positive emotions; reckless or self-destructive behavior; and depression. A December 2011 VA treatment record indicates that the Veteran was noted to have significant legal problems in that year, and he was on house arrest due to possession of heroin. He reported he smoked marijuana regularly and that he had stopped all heroin and narcotic pain medication use. He stated he benefited from marijuana use as it calmed him down. He reported he had lost strength and independence and needed more help at home. In January 2012, the Veteran was afforded a VA psychological examination. At that time, the Veteran endorsed the following symptoms: re-experiencing trauma; avoiding trauma-related experiences; hyperarousal; depression; anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; obsessional rituals which interfered with routine activities; chronic sleep disturbance; historical suicide attempts without suicidal behaviors since that time; and occasional suicidal ideation without plan or intent. The examiner opined that the Veteran’s PTSD manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner noted the Veteran was capable of managing his financial affairs. Of record is a January 2012 lay statement submitted by D.W, Jr. In that statement, D.W, Jr. indicated that the Veteran was his caregiver before the Veteran became paralyzed. He stated that the Veteran never slept in his bed and would fall asleep in the guestroom in a reclining chair so that he could see the front and back doors. He stated the Veteran always had problems sleeping, and would wake in the night with night sweats and bad nightmares. He reported the Veteran never spoke to him about his problems. Of record is an October 2013 private psychological evaluation by J.A, M.A. At that evaluation, the Veteran reported caffeine, alcohol, and drug use. He described his present state of health as “poor I guess.” He reported he had a girlfriend, and that their relationship was good and bad. He lived alone. He reported he last worked as a mechanic, and denied leaving his job due to any emotional or behavioral factors. He stated he could not work unless he was medicated. The Veteran was observed to be slow, guarded, reticent, inexact, digressive, and frequently interrupting questions. Upon mental status evaluation, the Veteran was observed to be: vague; digressive; and listened marginally. He had a reticent and guarded attitude toward the examination. His concentration was poor. His attention span was short. His psychomotor activity was slow. His speech patterns tended to be coherent, but sparse, hesitant, and unsure. His ability to abstract was moderately impaired. His ability to calculate was unimpaired. His affect was flat and diminished. He gave vague descriptions regarding his mood. He reported historical suicidal ideation and attempt, and denied any current intent or plan. He reported fairly low energy and draining fatigue. He denied mania or hypomania. He reported agitation, anxiety, anger, touchiness, irritability, and prior assaults. He reported nightmares. He denied any obsessions or compulsions. He reported he had some unusual perceptual phenomena, but only when using drugs or alcohol in the past. He admitted he had feelings of thought reading, but denied any disturbing, strange, or frightening thoughts or impulse or feelings of supernatural forces or influences. He characterized his interpersonal relationships as touchy and suspicious. His general fund of information was poor. His judgment and insight were fair. He was fairly oriented to time, place, and person. His memory was broadly intact but spotty and inexact for specifics. His associations were relevant and the stream of thought was slowed and scattered. His sleep patterns were marked by insomnia, and he reported only sleeping once every three days. He reported a fair appetite and thought he was gaining weight. J.A, M.A., opined that the Veteran’s PTSD was clearly in excess of the 30 percent evaluation and that his PTSD has “pervaded every aspect of his life since he got back from Vietnam.” In March 2014, the Veteran was afforded another VA psychological examination. At that time, the Veteran reported he lived in the same residence and that his cousin was living with him. He reported he had a girlfriend of 20 years and that they were still together. He stated he was very limited in his mobility due to a spinal cord disease, and that he was wheelchair bound. He stated he spent a lot of time watching television and movies. He reported he generally tried to stay to himself to avoid potential conflicts, and that he didn’t sleep much. He stated sometimes he woke up thinking something was on fire, and that it would take some time to get re-oriented to reality. He stated he felt like he was going downhill and forgetting more; and he described short-term memory problems and problems retaining new memories. He admitted that his marijuana use had an impact on his memory. He was not working. He denied any recent mental health treatment or medication. He stated he had good days and bad days, and some days he would get confused. He stated he realized he couldn’t manage his own life and that his girlfriend managed his bills. He stated his life was harder now that he couldn’t get out and about anymore. He stated most of his decline was physical. The Veteran endorsed the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. Upon mental status examination, the Veteran was observed to arrive early; move with the assistance of a motorized wheelchair; was neatly and casually dressed appropriate to the weather and situation; was cooperative; made good eye contact; was fully oriented; speech was clear and coherent; mood was somewhat depressed; affect was generally flat; and had thought processes that were logical and goal-directed. His thought content was relevant and with sparse detail. His gross concentration and memory were adequate. He had fair insight and judgment was intact. There was no evidence of perceptual disturbance. There was no evidence of thought disorder or hallucinations. He denied homicidal and suicidal ideation. The examiner opined that the Veteran’s PTSD manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner noted the Veteran was capable of managing his financial affairs. A September 2016 VA treatment record indicates the Veteran reported he had poor sleep, nightmares, intrusive thoughts, depression, fleeting suicidal ideation without intent, hypervigilance, paranoia, distrust of others, and that loud noises made him duck. At his August 2017 Board hearing, the Veteran stated that his depression and anxiety had gotten worse, and had been worse since he was granted service connection for PTSD. The Veteran and his girlfriend testified that his PTSD symptoms included: depression; nightmares; flashbacks; sleep disturbances; lack of sleep, averaging about 3 hours a night; insomnia; panic attacks occurring every day or every other day; irritability; snapping at people; isolation; pushing people away; paranoia; distrust of others; suicidal ideation; grogginess from medication; hypervigilance, to include never sleeping in the bed so that he could watch the doors and windows; shortness of breath; difficulty with concentration; difficulty with focus; memory loss; and loss of interest and motivation in hobbies that previously interested him. Of record is a September 2017 private psychological evaluation by J.A., M.A. At that evaluation, the Veteran reported that he smoked cigarettes, he drank alcohol once or twice a week, and used marijuana on a daily basis. He stated marijuana was the only thing that helped with his PTSD symptoms and flashbacks. He reported he had smoked marijuana that morning. He stated he had not used heroin in 8 years since he became paralyzed. He denied the use or abuse of any other drugs, narcotics, or self-induced intoxicants. He stated he did not know what the current state of his health was. He reported he was a widower and was married for 20 years before his wife died. He had 3 daughters and a girlfriend of 20 years. He stated he had a good relationship with his girlfriend and saw her weekly. He stated his last job was working as a mechanic before he was paralyzed. He reported he did not usually have problems on the job with the people he worked with, and denied leaving jobs because of emotional or behavioral factors. He stated he had flashbacks, sometimes caused by drugs, while employed. The Veteran endorsed the following symptoms: intrusive thoughts; unwanted memories that would flash or pop in his mid during the day; distress on a daily basis; nightmares; sleep disturbances; dissociative flashback reactions; distress when reminded or cued of Vietnam; avoidance of memories, thoughts, and feelings of Vietnam at all times; avoidance of things that might remind him of Vietnam; inability to remember some things while overseas; negative emotional states; diminished interests or participation in usual activities, and felt as though his life was destroyed over his use of heroin; lack of interest at all times; alienation from others; paranoia; detachment from others; nastiness towards his caregivers so that they will not want to come back; inability to experience positive emotions; irritable behavior; reckless or self-destructive behavior; hypervigilance; exaggerated startle response; problems with concentration and focus; difficulty remembering names, addresses, and phone numbers; misplaces things; lose track of the content of TV programs; trouble with concentration and focus; problems staying asleep or falling asleep; severe bad dreams; social isolation due to self-isolating behaviors. Upon mental status evaluation the Veteran was observed to be alert; vague; listened only marginally; attempted to be cooperative; have fair concentration; short attention span; normal psychomotor activity; speech patterns that tended to be coherent, but somewhat uncertain and the Veteran displayed a perceptual amount of age related cognitive decline; his ability to abstract was moderately impaired; his ability to calculate was slow, but accurate; his affect was within normal limits; he reported his mood to be “in between”; and described emotional lability with irritation and crying spells. He reported his depression had its onset after his mother died in 1990 and that he felt depressed a lot of the time for a few days at a time. He stated in 1990 he felt like killing himself and that he tried to overdose on heroin. He denied making any further attempts and denied any current suicidal feelings or plan. He described his current energy as very low and reported having frequent draining fatigue and being “weak all the time.” He denied any mania or hypomania. He reported feelings of agitation every day. He reported anxiety symptoms; anger; and feelings of harm towards other in the past. He reported he had assaulted people at various times but that he denied any wishes to harm anyone now. He stated he had some paranoid ideation with some auditory hallucinations; but that these were not significant. He reported suspicion and being difficult. He stated he only had a couple people he interacted with. His physical condition precluded him from going out to any kind of social events. His general fund of information, judgment, and insight were shown to be fair. He was oriented to time, place, and person. His memory was broadly intact. His associations were relevant and the stream of thought was normal. His sleep patterns were marked by incessant difficulty. He reported a poor appetite with some weight loss. J.A, M.A. opined that the Veteran’s current impairment from PTSD was manifested by: disturbances of motivation and mood; difficulty establishing and maintaining work and social relationships; unprovoked irritability; difficulties with mood; and impairments from past heroin addiction was caused by his PTSD. In April 2018, the Veteran was afforded another VA psychological examination. At that time, the Veteran reported he smoked marijuana daily to help relax him and manage pain, and that he still had sleep disturbances. He reported he had flashbacks, could not stand noise, felt depressed, and denied suicidal and homicidal ideation. He reported he felt better, but also reported an incident when acorns fell on the roof of his home that reminded him of gun shots. He reported nightmares, anxiety, feeling guarded and watching ever little movement, feeling sad, and having issues with transportation. He reported he lived in the same place, had the same girlfriend, and spent much of his time at home. The examiner noted there were no suicide attempts since 2004, and noted an extensive arrest history related to heroin abuse prior to 2014. The Veteran endorsed irritability, mood disturbance, distrust of people, and trying to “just tune things out.” He stated sometimes he could not sleep for days and was afraid to get a good, deep sleep. He reported he would wake up afraid that the house was on fire. The Veteran endorsed the following symptoms: anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and impaired impulse control. Upon mental status examination, the Veteran was observed to be adequately groomed and neatly dressed; presented in a motorized wheelchair; was fully oriented to person, place, time, and circumstance; was fully engaged and exhibited good eye contact; and had a subdued mood, with flat affect. His speech was clear and of normal rate and tone. His thought processes were congruent and goal-directed. There was no evidence of psychosis, delusions or perceptual disturbance. He denied active suicidal and homicidal ideation, plan, or intent. His judgment and insight appeared to be intact. The examiner opined the Veteran’s PTSD manifested in occupational and social impairment with occasional decrease in work efficiency. The examiner opined that the Veteran’s PTSD manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner noted the Veteran was not capable of managing his financial affairs. In that regard, the examiner noted that the Veteran struggled with significant forgetfulness and that his girlfriend had managed his finances for over 15 years. A May 2018 VA treatment record indicates that the Veteran reported he still had poor sleep, did not have that many nightmares, his depression was still the same and some days were worse than others, denied suicidal and homicidal ideation, continued to use cannabis to treat anxiety and pain, had flashbacks, could not stand noise, felt like he was “losing it,” and denied delusions and hallucinations. The Board finds that the Veteran is entitled to an initial 70 percent rating for PTSD for the entire period on appeal. In this regard, the Board notes that the Veteran’s symptoms have more closely approximated deficiencies in most areas for the entire period on appeal. The Veteran has been shown to have symptoms of anxiety, interpersonal relationship issues; panic attacks; chronic sleep disturbances; suicidal ideation; persistent drug use; impaired impulse control; and memory loss due to his PTSD symptomatology. Specifically, the Veteran’s psychiatric symptomatology has consistently been shown to have major effects within his relationships, affecting both professional and personal relationships. In this regard, the Veteran was shown to have suicidal ideation, and only interacted with his girlfriend and cousin. He reported having very few friends or other interactions outside of his girlfriend. He stated he could not work unless he was medicated. Further, the Veteran’s symptoms have been relatively consistent throughout the entire period on appeal. Accordingly, the Board finds that entitlement to an initial rating of 70 percent is warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). The Board acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports, the private psychological evaluation report, and the mental health treatment records do not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating for PTSD for the entire period on appeal. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment with deficiencies in most areas sufficient to warrant a 70 percent rating for the entire period on appeal even though all the specific symptoms listed for that rating are not manifested. Consideration has been given to assigning a higher rating for the appeal period. However, there is no indication from the record that the Veteran’s PTSD results in total social and occupational impairment. The Veteran has not exhibited hallucinations or significant cognitive impairment. The Veteran did not exhibit delusions. He did not present with impairment in speech or thought content. There is no gross impairment in thought processes or communication, and no indication that the Veteran has exhibited grossly inappropriate behavior. There is no indication from the record that the Veteran is a persistent danger to himself, or others. Accordingly, there is no indication from the record that the Veteran’s symptoms were so severe as to cause total occupational and social impairment. Therefore, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel