POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The veteran, who served from April 1967 to January 1969, appeals the denial of an increased disability rating for his service-connected posttraumatic stress disorder (PTSD) for the period prior to July 14, 2014. The veteran was previously granted service connection for PTSD with a 30 percent rating effective August 17, 2009, which was later increased to 50 percent effective September 4, 2014. The Board had previously granted a 70 percent rating effective July 14, 2014. This appeal concerns the period before July 14, 2014, following a remand from the U.S. Court of Appeals for Veterans Claims (CAVC) due to inadequate reasons and bases in the prior decision. The Board reviewed VA examinations from October 2009 and May 2012, as well as treatment records from the Charleston Vet Center. The October 2009 exam noted sleep impairment, depression, panic attacks, flashbacks, and nightmares, with blunted affect and euthymic mood. The May 2012 exam reported depressed mood, anxiety, chronic sleep impairment, mild memory loss, suicidal ideations, and a bleak mood attributed to life circumstances. The Board afforded the benefit of the doubt and found the veteran's PTSD symptoms approximated the criteria for a 70 percent rating for the entire appeal period prior to July 14, 2014. However, the Board denied a rating in excess of 70 percent, finding the evidence did not support total occupational and social impairment, citing the lack of gross impairment in thought processes, persistent delusions/hallucinations, grossly inappropriate behavior, persistent danger to self or others, disorientation, or memory loss for close relatives. The Board noted the presence of suicidal ideation but found no persistent danger to self or others, and that social interactions, while impaired, were not totally impaired. Service connection for PTSD at 70 percent for the period prior to July 14, 2014, is granted.

Rationale

Benefit of the doubt afforded to veteran; Symptoms approximated 70% criteria; Preponderance of evidence against 100% rating

Full Decision Text

Citation Nr: 19158745
Decision Date: 07/30/19	Archive Date: 07/29/19

DOCKET NO. 12-23 600
DATE: 	July 30, 2019

ORDER

Entitlement to an initial disability rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) prior to July 14, 2014, is granted.

FINDINGS OF FACT

1. Prior to July 14, 2014, the Veteran’s PTSD was manifested by symptoms resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 

2. Prior to July 14, 2014, the preponderance of the evidence is against a finding that the Veteran’s disability picture for PTSD more nearly approximated total social and occupational impairment.

CONCLUSIONS OF LAW

Prior to July 14, 2014, the criteria for an initial 70 percent disability rating (but no higher) for the Veteran’s PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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 May 2018, the Board denied the Veteran’s claim for a rating in excess of 50 percent for PTSD for the period prior to September 4, 2014. The Board also granted a 70 percent rating for PTSD from July 14, 2014. 

Following this decision, the Veteran appealed the denial of a rating in excess of PTSD for PTSD prior to July 14, 2014, to the United States Court of Appeals for Veterans Claims (CAVC). In February 2019, the parties filed a Joint Motion for Partial Remand (JMPR) of the Board’s decision. CAVC remanded the Board’s denial of a rating in excess of 50 percent for service-connected PTSD prior to July 14, 2014, noting inadequate reasons and bases in the decision. The Board observes that as noted in the JMPR, the Veteran is not appealing the part of the Board’s decision that granted him a disability rating of 70 percent for PTSD from July 14, 2014. As such, the Board shall only address the period prior to July 14, 2014.

Increased Rating

Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018).  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 (2018).

Each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2 (2018).  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 (2018).

In both initial rating claims and 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). 


 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 (2018).

In both initial rating claims and 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. 

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).

Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating.  Id. at 117.  If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned.  Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117.  Id.

Entitlement to an initial rating for PTSD in excess of 50 percent prior to July 14, 2014

The Veteran contends the initial 50 percent disability rating assigned for his service-connected PTSD is inadequate. He was granted service connection for his PTSD by a July 2010 rating decision.  A 30 percent evaluation was assigned, effective August 17, 2009.
 and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned.  Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117.  Id.

Entitlement to an initial rating for PTSD in excess of 50 percent prior to July 14, 2014

The Veteran contends the initial 50 percent disability rating assigned for his service-connected PTSD is inadequate. He was granted service connection for his PTSD by a July 2010 rating decision.  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. As noted, the Board assigned a 70 percent rating from July 14, 2014, in a May 2018 decision. The Veteran continues to appeal the assigned rating for the 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.  

On VA examination in May 2012, the Veteran reported symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbance of motivation and mood, and suicidal ideations. The Veteran indicated that he lived with his wife of four years and that they got along well, usually. The Veteran noted that he had two adult children from his first marriage and that he maintained contact with them via phone and electronic means. He indicated that he worked as a physical therapist and that he worked in this occupation full-time for the past 34 years. The Veteran reported that he enjoyed reading, cooking, drinking wine while cooking, photography, and gardening as recreational activities. He reported that from time to time, he experienced suicidal thoughts, at times occurring on a daily basis and at other times less frequently. The Veteran denied any current/immediate suicidal thoughts, intentions or plans. The examiner noted that the Veteran was appropriately dressed, demonstrating adequate grooming and personal hygiene. She indicated that the Veteran was oriented to person, place, and time, cooperative, alert, pleasant, and polite. She noted that the Veteran reported that his mood was bleak which he primarily attributed to recent life circumstances (i.e. recent prostate cancer diagnosis, pending euthanasia of elderly and ill family pet). The examiner indicated that there were no significant problems with thinking or communication, attention, concentration, or memory. The examiner opined that the Veteran’s PTSD manifested as 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. 

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.  

Affording the benefit of the doubt to the Veteran, the Board finds that the Veteran’s PTSD caused him occupational and social impairment with deficiencies in most areas including work, school, family relations, judgment, thinking, or mood for the entire period on appeal. Therefore, the Board finds that entitlement to an initial 70 percent rating for the prior to July 14, 2014 is granted. 

The Board finds that entitlement to an initial rating in excess of 70 percent for PTSD prior to July 14, 2014, must be denied as the preponderance of the evidence is against a finding that the Veteran’s disability picture for PTSD more nearly approximated total social and occupational impairment. The VA examinations and treatment records did not reveal that the Veteran had symptoms of PTSD with the frequency, duration, and severity contemplated by a 100 percent rating including symptoms such as (1) gross impairment in thought processes or communication; (2) persistent delusions or hallucinations; (3) grossly inappropriate
, the Board finds that entitlement to an initial 70 percent rating for the prior to July 14, 2014 is granted. 

The Board finds that entitlement to an initial rating in excess of 70 percent for PTSD prior to July 14, 2014, must be denied as the preponderance of the evidence is against a finding that the Veteran’s disability picture for PTSD more nearly approximated total social and occupational impairment. The VA examinations and treatment records did not reveal that the Veteran had symptoms of PTSD with the frequency, duration, and severity contemplated by a 100 percent rating including symptoms such as (1) gross impairment in thought processes or communication; (2) persistent delusions or hallucinations; (3) grossly inappropriate behavior; (4) persistent danger of hurting self or others; (5) intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); (6) disorientation to time or place; (7) memory loss for names of close relatives, own occupation, or own name. While the record contains some reports that the Veteran thought about hurting others in the past when he was working, the Board finds no compelling evidence that the Veteran was ever a persistent danger of hurting himself or others during the period at issue. In contrast, the VA examinations and treatment records during the period at issue were negative for such findings. 

Notably, suicidal ideation may cause occupational and social impairment in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). Here, the Veteran reported suicidal ideation on the May 2012 VA examination. The May 2012 VA PTSD examination report reflects that the examiner marked the box for suicidal ideation. The Veteran reported that from time to time, he experienced suicidal thoughts, at times occurring on a daily basis and at other times less frequently. The Veteran denied any current/immediate suicidal thoughts intentions or plans. Therefore, when considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the evidence shows that the Veteran’s PTSD has approximated the criteria for an initial 70 percent rating for the entire appeal period. 

However, the Board finds that the preponderance of the evidence of record is against a higher rating of 100 percent. In this regard, the Board finds that the most probative evidence of record does not show that the Veteran’s PTSD has caused total social and occupational impairment. The VA examinations and treatment records did not reveal that the Veteran had symptoms of PTSD with the frequency, duration, and severity contemplated by a 100 percent rating including symptoms such as (1) gross impairment in thought processes or communication; (2) persistent delusions or hallucinations; (3) grossly inappropriate behavior; (4) persistent danger of hurting self or others; (5) intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); (6) disorientation to time or place; (7) memory loss for names of close relatives, own occupation, or own name. 

In addition, the medical records do not demonstrate gross impairment in thought processes, communication, or of disorientation to time or place. Grossly inappropriate behavior as well as an inability to perform activities of daily living (including maintenance of minimal personal hygiene) were also not shown. Lastly, while he had suicidal ideation, the record is negative a plan or any evidence that he demonstrated persistent danger of hurting self or others. While the record shows that the Veteran reported suicidal ideations, the Board finds no compelling evidence that the Veteran demonstrated a persistent danger of hurting himself or others during the period at issue. In contrast, the VA examinations and the preponderance of treatment records during the period at issue were negative for such findings.

Moreover, while the Veteran’s social interactions were impaired during the period at issue, the Board finds they were not totally impaired as the Veteran still retained the ability to interact appropriately with treatment providers and others close to him including family members and some friends. The Veteran reported a good relationship with his wife and contact with his two adult children. He also noted enjoying leisurely activities such as reading, cooking, drinking wine while cooking, photography, and gardening The Board finds no compelling evidence or argument on appeal in support of a finding of total social impairment prior to July 14, 2014. In consideration of the totality of the evidence currently of record, 

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entitlement to an initial disability rating of 70 percent (but no higher)
 interactions were impaired during the period at issue, the Board finds they were not totally impaired as the Veteran still retained the ability to interact appropriately with treatment providers and others close to him including family members and some friends. The Veteran reported a good relationship with his wife and contact with his two adult children. He also noted enjoying leisurely activities such as reading, cooking, drinking wine while cooking, photography, and gardening The Board finds no compelling evidence or argument on appeal in support of a finding of total social impairment prior to July 14, 2014. In consideration of the totality of the evidence currently of record, 

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entitlement to an initial disability rating of 70 percent (but no higher) for PTSD prior to July 14, 2014 is granted.

 

BARBARA B. COPELAND

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	T. Grzeczkowicz, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.