Citation Nr: 19129018 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 12-16 667A DATE: April 16, 2019 ORDER Entitlement to an initial disability evaluation in excess of 50 percent prior to September 27, 2013 for posttraumatic stress disorder (PTSD) and over 70 percent thereafter is denied. Entitlement to an increased disability evaluation in excess of 40 percent for right-ulnar nerve paralysis is denied. FINDINGS OF FACT 1. The objective medical evidence shows that prior to September 27, 2013, symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; and neither prior to September 27, 2013 or thereafter did the severity, frequency and duration of symptoms more closely approximate total occupational and social impairment. 2. For the entire increased rating period on appeal, service-connected right-ulnar nerve paralysis did not manifest by complete paralysis of the ulnar nerve. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 50 percent for PTSD prior to September 27, 2013 and over 70 percent evaluation thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for a disability evaluation in excess of 40 percent for service-connected right-ulnar nerve paralysis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.123, 4.124a, Diagnostic Code 8516 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1969 to November 1973 and from April 1977 to January 1978. The Board granted a 50 percent rating for PTSD for the period prior the January 18, 2013, and that decision is final. During Remand development, the Agency of Original Jurisdiction (AOJ) granted a 70 percent rating effective September 27, 2013. This was the date of a Board hearing where the Veteran reported worsening of symptoms that the AOJ later held were confirmed on examination. Those periods remain on appeal. The Veteran died in June 2016, and the appellant is his surviving spouse and has been substituted to continue the appeal. See 38 U.S.C. § 5121A. Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 1. Entitlement to an initial disability evaluation in excess of 50 percent prior to September 27, 2013 for PTSD and in excess of 70 percent thereafter. Record As stated in the February 2019 Appellate Brief, the Appellant has stated her claims as entitlement to “an increased rating of 100 [percent] for the Veteran’s PTSD,” with an effective date of September 27, 2013. As noted a 50 percent rating was granted for the period prior to October 18, 2013, by a final Board decision. That period is not subject to this appeal. General Rating Formula Most psychiatric disorders, including PTSD, although assigned separate diagnostic codes, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. The range of disability evaluations granted throughout the Veteran’s treatment record, as well as the ratings he seeks, are set forth in the General Rating Formula, as follows. A 50 percent disability rating is warranted 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 disability 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating will be assigned 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. Diagnostic Code 9411. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. Because some of the Veteran’s earlier treatment notes in the period relevant to this appeal assign a Global Assessment of Function (GAF) score under the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), it is important to note that the GAF score is 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 (1996) (citing DSM-IV). A score of 31 to 40 is assigned 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; a child frequently beats up younger children, is defiant at home, and is failing at school). A score of 41-50 is assigned 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). A score of 51-60 is assigned 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, conflict with peers or coworkers). A score of 61-70 is indicated where 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 and has some meaningful interpersonal relations.   Evidence A January 2013 VA examination for PTSD show a diagnosis of chronic PTSD with depressive symptoms, with a GAF score of 48, indicating serious symptoms. The January 2013 VA examiner found occupational and social impairment with reduced reliability and productivity. Symptoms included depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The January 2013 the Veteran found other symptoms as follows: General Appearance: Appropriately dressed unshaven; 2. Psychomotor Activity/Mannerisms/Behaviors: Unremarkable; 3. Orientation: Alert and fully oriented; 4. Speech: Spontaneous coherent goal directed; 5. Attitude Toward Examiner: Cooperative; 6. Affect: Appropriate; 7. Mood: “level as long as nobody bothers me and I am left alone.” ANXIETY: panic attacks about once a month. On edge much of the time. Irritable at times. Distrustful of others and hypervigilant. Feels anxious when wife away from home and worries about infidelity. Concern of home security. Locks self in shed when working there. DEPRESSION: The Veteran denied a depressed mood, diminished interest in pleasure, weight gain or loss, difficulty sleeping recurrent thought of suicide or harming others. Additionally, the January 2013 VA examiner offered an opinion: “It is less likely than not (less than 50 percent probability) that [the Veteran’s] PTSD precludes him from securing and maintaining gainful employment.” In a June 2013 VA behavioral care consult, the Veteran was noted as “extremely angry.” The mental status examination/behavioral observations included the following: [Alert and oriented to person, place and time]. Casually-dressed with good grooming and hygiene. Good eye contact. Speech [within normal limits]. Mood angry, with appropriate affect, congruent with topic at hand, full range. Linear thought process. No [early onset of audio hallucinations or visual hallucinations]. [The Veteran] credibly denied any [suicidal ideation], intent or plan. He admits to fleeting thoughts of harming others who upset him, but credibly denies any homicidal intention or plan. Cognition grossly intact. [Judgment and insight] good. [The Veteran’s] wife presented as supportive. A VA telehealth intervention note in December 2014 noted behaviors, presumably reported by the Veteran, of abusive verbal behavior; gets anxious and verbally upset due to poor memory; exhibits severe psychiatric symptomology that interferes with ability to function and maintain independence in the community; and does not always take medications. His cognitive status indicated he made poor decisions or decisions with difficulty regarding activities of daily living. The Veteran underwent another VA examination for PTSD in April 2015, in which his diagnosis was PTSD, chronic with depressive features. The April 2015 VA examiner found occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran symptoms included: Depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impaired judgment; disturbances of motivation and mood; 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; and neglect of personal appearance and hygiene. Behavioral observations were the following: 1. General Appearance: Neatly groomed, appropriately dressed. Appeared tired; 2. Psychomotor Activity/Mannerisms/Behaviors: Unremarkable; 3. Orientation: alert and fully oriented; 4. Speech: Spontaneous, coherent, goal directed; 5. Attitude Toward Examiner: Guarded, defensive, irritable at times but did respond to all questions; 6. Affect: Appropriate. ANXIETY: Panic attacks less than once a week. Endorsed feeling nervous, anxious or on edge most of the time, excessive worry, easily annoyed or irritable with verbal anger outbursts, anxiety from hypervigilance. Socially isolates. Concerned about home security. Distrustful. DEPRESSION: credibly denied thought of harm to self or others. Low mood most days. Sleeps about 15 hours a day in four hour blocks. Nightmares. The April 2015 VA examiner’s remarks included: [The Veteran’s] level of social and occupational impairment appears to have increased since his last exam 1/18/13. Per Remand request for a Global Assessment of Functioning score, a GAF score of score of 45 is assigned. Another VA examination for PTSD followed in August 2015, with a diagnosis of PTSD, chronic. The August 2015 VA examiner found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. Findings of symptoms included: Depressed mood; mild memory loss, such as forgetting names [of grandchildren] directions or recent events; impaired judgment [The Veteran buys gun ammunition he does not use]; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting (he is gets irritable when he stressed; he says he does not gets stressed very often, though); impaired impulse control, such as unprovoked irritability with periods of violence (his wife controls the money; she believes he would be impulsive about going places, as well; wife says he avoids taking him places where he might be expected to wait, or when he might get impatient) Mental status and behavioral observations were the following: The Veteran presented for the evaluation as alert and oriented to person, place, and time. He interacted in a logical, coherent, and marginally cooperative fashion. Observed affect was a bit irritable. He feels depressed “all the time” and when asked why, “The VA is fucking me over.” He says they owe him for increased disability payments, among other things. He made several negative comments about the VA, usually with a snide chuckle. He comes across as negativistic, but many of his negative comments were in a tone of voice that suggested he likes to banter with people. He cannot afford to go to Florida to get out of the cold. Speech was normal for rate and volume, and he was reasonably open. No signs of thought disorder, hallucinations, or delusions General Appearance and Observed hygiene: Casually dressed; well groomed; he wanted his wife in there. Psychomotor: No obvious issues. Insight: Marginal; spent most of the time making negativistic remarks about the VA. During a typical day, he will watch TV, mow the [lawn], “go to town with the wife” when she goes shopping. “I don’t have a lot of ambition.” He spends time in his work shop, as well. He spends hours watching the Military Channel; he says he likes to hear about tactics. Concentration: He reports having problems concentrat[ing], but can focus when he plays a game on the computer. He does not read for fun. The August 2015 VA examiner added the Veteran is capable of managing his financial affairs. His remarks included the following: Functional Limitations of [service-connected] PTSD affecting unemployability: RELIABILITY: Moderate impairment due to PTSD; PRODUCTIVITY: Moderate impairment due to PTSD; CONCENTRATION: Moderate impairment; ABILITY TO FOLLOW DIRECTIONS: No impairment due to PTSD; ABILITY TO INTERACT WITH SUPERVISORS: Moderate impairment due to PTSD, with intermittent severe impairment; ABILITY TO INTERACT WITH COWORKERS: Moderate impairment due to PTSD, with intermittent severe impairment From September 2015 through June 2016, the Veteran continued to present at VA for psychiatric visits. Discussion On this basis of findings made in the January 2013 VA examination, the Board in its February 2015 decision found a 50 percent disability rating more appropriate for the period prior to January 18, 2013, as noted above. By the January 2013 VA examination, although the Veteran was in fact exhibiting more serious symptoms, as well as his continuing symptoms to a more intense degree, such as ongoing depression, anxiety and quite serious sleep impairment, the January 2013 VA examiner also found the Veteran to have spontaneous, coherent and goal directed speech and his thought processes and content showed no hallucinations, delusions or signs of thought disorder. Although the Veteran’s wife mentioned instances of forgetfulness, on examination, the Veteran’s memory appeared unimpaired. Simply put, without something more than impairment or difficulty in dealing with people and with circumstances in a work setting or otherwise, the Board cannot conclude that the Veteran’s symptoms at the time of the January 2013 VA examination, as well as indicated elsewhere in the record, would rise beyond the assigned 50 percent rating to 70 percent. As noted in September 2013, a 70 percent rating was assigned. As set forth above in the General Rating Formula, a 100 percent disability rating will be assigned 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. These are symptoms of total disability, effectively precluding independent functioning. For the same reasons just stated, the evidence does not indicate the considerably more severe impairments of a 100 percent evaluation. By the April and August 2015 VA examinations, the Veteran’s judgment and memory were now exhibiting deficiencies, indicating a worsening disorder and, accordingly, the November 2016 rating decision assigned a 70 percent rating. Once again, the findings made during treatment or upon examination in that period do not indicate symptoms which rise to the level of producing the deficiencies of a 100 percent evaluation. For example, and as already discussed, the record reveals nothing in the nature of persistent delusions or hallucinations and no hindrance of thought processes, behavior or memory which would totally inhibit functioning. Moreover, all functional limitations found by the August 2015 VA examiner affecting unemployability were characterized as “moderate impairment,” with intermittent instances of severe impairment in mood and interacting with co-workers. Although, examination interviews with the Veteran in both the April and August 2015 VA examinations, indicate irritability and outbursts of anger, significantly, the August 2015 VA examiner observed: “He comes across as negativistic, but many of his negative comments were in a tone of voice that suggested he likes to banter with people.” This does not suggest gross impairment in thought processes or communication, hallucinations or a persistent danger to others, or anything else which would inhibit functioning to a point of total incapacity. For these reasons and based on the objective medical evidence, the Board finds prior to September 27, 2013, symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; and neither prior to September 27, 2013 or thereafter did the severity, frequency and duration of symptoms more closely approximate total occupational and social impairment. Consequently, entitlement to a disability evaluation in excess of 50 percent prior to September 27, 2013 for PTSD and or in excess of 70 percent thereafter have not been established. 2. Entitlement to an increased disability evaluation in excess of 40 percent for right-ulnar nerve paralysis. An October 1978 rating decision service connected right-ulnar paralysis at a 40 percent disability evaluation. This disorder is evaluated under Diagnostic Code 8516, which provides a 10 percent rating when incomplete paralysis is mild, 30 percent when it is moderate and 40 percent when it is severe. These rating are for the major extremity. A 60 percent rating is available for complete paralysis, resulting in the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2018). In an April 1985, the Veteran underwent right-ulnar transposition surgery with excision of perineural scar tissue. The treatment provider noted the right -ulnar nerve was tender at the elbow, with radiation of pain into the fingers; atrophy of the intrinsic muscle; and good hand grip. In a May 2010 VA examination for heart, neurological testing revealed the following: First dorsal compartment atrophy is noted on the right with slight thenar [palm] atrophy. No hypothenar atrophy is noted. Monofilament deficits are noted in the right ulnar nerve distribution. Hand intrinsics are weak on the right, 4/5. The ulnar nerve is not present in the cubital tunnel. Surgical scars are well healed without underlying tissue adherence. Limited flexion of the 4th and 5th PIP [proximal interphalangeal] joints are noted at 30-degrees. A January 2012 VA examination for peripheral nerves conditions stated a 1970 diagnosis of ulnar nerve laceration/repair. Symptoms found on examination included mild intermittent pain and mild paresthesias and/or dysesthesias in the right-upper extremity. Muscle strength testing showed normal strength in all bilateral segments of the upper extremities. Deep tendon reflexes in the bilateral upper extremity segments were normal. However, the sensory exam showed decreased results for sensation in the right hand/fingers. However, the January 2012 VA examiner found muscle atrophy only in the median nerve distribution of the right hand, but not the service-connected ulnar nerve distribution. Nerve testing of the ulnar nerve revealed normal results for the right, as well as the left. However, the January 2012 VA examiner found right- rip strength at 80 pounds, while it was 100 pounds in the left and pinch strength “diminished” in the right, compared with the left. A January 2013 VA examination for peripheral nerves stated the 1970 diagnosis of ulnar nerve laceration/repair. The January 2013 VA examiner made the same findings as in the January 2012 VA examination, but additionally found moderate numbness in the right-upper extremity. However, ulnar nerve testing showed in this examination mild right incomplete paralysis. In an April 2015 VA examination for peripheral nerves, once again, the diagnosis and findings were identical to the previous VA examinations, except for grip and pinch maneuvers in muscle strength testing showed only active movement against some resistance (4/5 strength). Additionally, the reflex examination showed hypoactive (+1) results for all segments of the right-upper extremity. Ulnar nerve testing now showed moderate incomplete paralysis. The April 2015 VA examiner concluded that the functional impact on the Veteran is being restricted from duty with repeated grip and torque using the right hand. In April 2015, the Veteran also underwent a VA examination for hand and fingers, in which the 1970 diagnosis was stated as ulnar nerve lesion status post shrapnel injury. Range of motion findings for the right hand showed normal extension for the index finger, middle finger, ring finger, and little finger at metacarpophalangeal (90 degrees), proximal interphalangeal (100) and distal phalangeal (70) joints, as well as normal thumb flexion for the at metacarpophalangeal (100) and the interphalangeal (90) joints. However, extension for the little finger was abnormal, showing the distal phalangeal joint at 20 degrees. Muscle strength testing for hand grip showed 4/5 or the right hand and 5/5 (normal) for the left. Other findings included those for the wrist, showing passive, active and repetitive range of motion for the right side was full and normal, as was the left side. After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period on appeal, the service-connected right ulnar neuropathy has not been manifested by complete paralysis of the ulnar nerve in the major extremity with the “griffin claw” deformity due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences, loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb, and flexion of the wrist is weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8516. For example, in providing the most detailed findings of all the examinations, the April 2015 VA examination for hands and fingers produced no findings showing that the thumb could not adduct (move inward toward the palm or inner hand). There were no findings of atrophy. Weakness of flexion of the wrist was not indicated, as the range of motion findings were normal in passive, active and repetitive maneuvers. Most significant, the right-hand range of motion findings revealed that only the little finger showed extension abnormality of the distal phalangeal joint at 20 degrees. All other findings for the fingers were otherwise identical to the left hand and at normal ranges, thereby showing no indications of the “griffin claw” appearance of the ring and little fingers curled in on the palm. The Board must emphasize that a higher rating requires “complete paralysis.” This does not appear anywhere in the April 2015 examination or anywhere in the medical evidence. The Appellant’s February 2019 Statement in Support of Claim recounts ever-increasing deterioration through the years and asserts that the right-hand ring and little fingers became useless. Yet, the Veteran reported in his January 2013 and August 2015 VA examinations for PTSD that he frequently retired to his workshop or “shed” to work there. He testified at the September 2013 Board hearing about his frustrations at the limitations of his right-hand in using tools and in writing. Nonetheless, he continued to use his hand for picking things up and holding them, as well as crafting finely detailed miniatures and models in wood. Additionally, the Board has considered whether any other diagnostic code under the criteria for diseases of the peripheral nerves would allow for an increased disability rating and/or a separate compensable rating for the service-connected nerve disability. However, the April 2015 VA examination for peripheral nerves shows no findings for incomplete paralysis of the upper radicular group and therefore a rating under Diagnostic Code 8610 is not warranted; nor is Diagnostic Code 8611 applicable, as there was no incomplete paralysis of the middle radicular group, or incomplete paralysis of the median nerve (Diagnostic Code 8615); therefore, an evaluation under any of these diagnostic codes is not warranted. 38 C.F.R. § 4.124a. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claims, the doctrine is not applicable, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel