PTSD DUE TO COMBAT

MICHAEL PAPPAS · 2019 · Case ID: A19002675

DENIED

Summary

The veteran, who served from January 1943 to March 1946, appeals the denial of an increased disability rating for posttraumatic stress disorder (PTSD) with depression. The veteran's current rating for PTSD with depression is 30 percent. The veteran claims the rating does not accurately reflect the severity of his condition, reporting symptoms such as being easily startled, experiencing bad dreams, avoiding crowds, sleep disturbance due to anxiety, and constant vigilance for safety. His son corroborated that the veteran's symptoms have worsened, noting nightmares, emotional distress related to service memories, social awkwardness, and increased rumination about his time in Okinawa. The VA examiner found the veteran's symptoms consistent with the 30 percent rating criteria, noting satisfactory routine behavior, self-care, and conversation, intact judgment, and ability to follow conversation, despite reports of anxiety and sleep disturbance. The Board considered the veteran's symptoms, including depressed mood, anxiety, nightmares, hypervigilance, avoidance, and memory issues, finding they most nearly approximated the 30 percent rating. The Board denied the increased rating to 50 percent because the veteran did not exhibit reduced reliability and productivity, flattened affect, or significant memory impairment as required by the higher criteria. The Board found the veteran competent to report symptoms but ultimately determined the preponderance of the evidence did not warrant an increased rating.

Rationale

Symptoms of depressed mood, anxiety, nightmares, hypervigilance, avoidance, and sleep impairment align with 30% rating criteria.; Veteran did not exhibit reduced reliability/productivity, flattened affect, or significant memory impairment required for 50% rating.; VA examiner's findings of intact judgment and ability to follow conversation support the 30% rating.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

190729-16693

Full Decision Text

Citation Nr: A19002675
Decision Date: 11/12/19 Archive Date: 11/08/19

DOCKET NO. 190729-16693
DATE: November 12, 2019

ORDER

Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with depression is denied.

FINDINGS OF FACT

For the entire period on appeal, the Veteran’s PTSD with depression has been manifested by 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, mild memory loss (such as forgetting names, directions, recent events). Occupational and social impairment with reduced reliability and productivity, and the symptoms that would produce such impairment has not been shown.

CONCLUSION OF LAW

For the period on appeal, the criteria for a disability in excess of 30 percent for PTSD with depression have not been met or approximated. 38 U.S.C. §§ 1155, 5107A (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.126, 4.130, Diagnostic Code 9411 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active duty service from January 1943 to March 1946.

The appeal comes before the Board of Veterans’ Appeals (Board) from a January 2019 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO).

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Following a May 2019 Statement of the Case (SOC), the Veteran filed a VA Form 10182 requesting an appeal to the Board under the evidence submission review option. The Board is honoring the Veteran’s choice for evidence submission review.

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Entitlement to an evaluation in excess of 30 percent for PTSD with depression is denied.

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the 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 practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions
a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the 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 practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. at 589 (1991).

The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service).

Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. 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) (noting that “although interest may affect the credibility of testimony, it does not affect competency to testify”).

Entitlement to a rating in excess of 30 percent for service-connected PTSD with depression is denied.

The Veteran’s PTSD with major depression is currently rated as 30 percent disabling. The Veteran claims the rating does not accurately depict the severity of his condition.

Under 38 C.F.R. § 4.130, DC 9411 (2018), the General Rating Formula for Mental Disorders provides, in pertinent part:

A 30 percent rating is warranted if the mental disorder is productive of 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, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is warranted if the mental disorder is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and
self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 70 percent rating may be assigned 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); and inability to establish and maintain effective relationships.

A 100 percent rating contemplates 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 Code 9411.

Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a veteran’s condition that affect the level of occupational and social impairment.

After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.

In this case, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran’s disability in his favor, however, after a careful review of the record and for reasons and bases expressed immediately below, the Board finds that the medical and lay evidence of record warrant an evaluation of 30 percent and denies the Veteran’s claim for an increased rating. See 38 C.F.R. § 4.7.

In a November 2018 Statement in Support of Claim, the Veteran stated that his service-connected PTSD with depression worsened since he was initially rated as 10 percent disabling. The Veteran reported that he is easily startled, that he experiences bad dreams about once a month or more, that he does not like being in crowds, that he loses sleeps due to his anxiety, and that he constantly checks his locks and windows.

The Veteran was afforded a VA examination in December 2018. The examiner found that the Veteran experiences 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.

The Veteran reported that he lives alone since his wife passed away in
in Support of Claim, the Veteran stated that his service-connected PTSD with depression worsened since he was initially rated as 10 percent disabling. The Veteran reported that he is easily startled, that he experiences bad dreams about once a month or more, that he does not like being in crowds, that he loses sleeps due to his anxiety, and that he constantly checks his locks and windows.

The Veteran reported that he lives alone since his wife passed away in 2018, and that he has a good relationship with his kids and grandkids. The Veteran reported experiencing the following symptoms: recurrent, involuntary, and intrusive distressing memories; recurrent distressing dreams; intense or prolonged psychological distress at exposure to internal or external cues; avoidance of or effects to avoid distressing memories, thoughts, or feelings; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; markedly diminished interest or participation in significant activities; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance; depressed mood; anxiety; chronic sleep impairment; and mild memory loss.

The Veteran reported to the VA examination with his grandson. The examiner noted that the Veteran was neatly dressed and groomed, oriented, with speech that was goal directed and logical. The Veteran demonstrated good eye contact and had euthymic affect. The Veteran reported that his mood is down about a day a week when he feels low energy and low motivation to do anything, and that he often feels anxious. The Veteran noted that he avoids crowds and sleep 5 to 6 hours per night, with nightmares related to combat about once a week. The Veteran reported that he is startled easily and that he is constantly checking his property for safety. The Veteran described a decrease in his memory and issues with concentration, but the examiner found the Veteran to be able to track their conversation well with some word finding difficulties. The Veteran’s judgment was noted to be grossly intact and the Veteran stated that he can care for his home and himself. The Veteran denied problems with irritability or temper and stated that he gets along well with his family and neighbors. No psychosis or mania was reported.

Following VA examination, the Veteran’s son filed a Statement in Support of Claim, stating that the Veteran’s symptoms have worsened over the years. He reported that his father experiences nightmares and stated that his father remembers his time in service and the incidents in service like they were yesterday, and that he gets very emotional. The Veteran’s son reported that at night the Veteran experiences nightmares that are so bad he feels paralyzed. The Veteran’s son also reported that the Veteran has “become very socially awkward,” and that after the passing of the Veteran’s wife the Veteran seems to think about his time in Okinawa much more, “almost like he is reliving it.”

Given the evidence of record, the Board finds that the Veteran’s PTSD with depression is more nearly approximated by a 30 percent disability rating. During the period on appeal, the Veteran exhibited depressed mood, anxiety, nightmares, hypervigilance, avoidance of crowds, exaggerated startle response, low motivation, difficulty concentrating, intrusive distressing memories, and chronic sleep impairment, all of which are included within the 30 percent disability rating criteria. While the Board acknowledges that a veteran need not demonstrate the presence of all of the symptoms listed as examples in the rating criteria, the Court has held that without the examples noted in the rating criteria, assigning a 30 percent evaluation would be extremely ambiguous. See Mauerhan, 16 Vet. App. at 442. Therefore, the Board considers all symptoms of a veteran’s condition that affect the level of occupational and social impairment.

Although the Veteran’s son in the December 2018 Statement in Support of Claim notes that the Veteran may not have reported all of his symptoms at his examination, the Veteran’s reported symptoms are consistent with his son’s reported observations of the Veteran’s symptoms. Both the Veteran’s son and the VA examination reflect symptoms of recurrent nightmares, intrusive thoughts, and hypervigilance. Therefore, the Board finds the VA examination to be adequate for VA purposes, and finds that the medical and lay evidence of record indicate symptoms that most nearly approximate a 30 percent disability rating.

The Board has considered an increased rating of 50 percent disabling, however, based upon the medical and lay evidence of record, the Veteran did not exhibit 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 compete tasks); impaired judgment; impaired abstract thinking; and disturbances of motivation and mood. Here, the VA examiner noted that the Veteran had grossly intact judgment, that the Veteran was able to follow their conversation, that his speech was goal oriented and logical, and that the Veteran was oriented as to time and place. Although the Veteran reported anxiety, panic attacks more than once a week were not reported. Moreover, while the Veteran may have experienced depressed mood, to include disturbances in motivation and mood, the Board finds that the Veteran’s overall symptomatology does not amount to that depicted within the criteria for a 50 percent disability rating. Here, the Veteran is able to take care of himself and his household, the Veteran is able to maintain healthy relationships with his family, and there is no evidence of impaired or abstract thinking. While the Board acknowledges the Veteran’s son’s assertion that his father has become “very socially awkward,” the Board does not find that such amounts to an increased rating of 50 percent, as the record indicates that the Veteran maintains a good relationship with his family, to include his kids and grandkids, and his neighbors.

Again, while the Board acknowledges that a veteran need not demonstrate the presence of all of the symptoms listed as examples in the rating criteria, the Board considers all symptoms of the Veteran’s condition that affect the level of occupational and social impairment. Therefore, after a review of the lay and medical evidence of record, and considering the Veteran’s disability picture as a whole, the Board does not find that the Veteran’s disability picture more nearly approximates occupational and social impairment with reduced reliability and productivity.

With respect to the Veteran’s claim, the Board has also considered the statements that his disability is worse than evaluated. 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. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his acquired psychiatric disability, according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran’s disability 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 the disability is evaluated.

Therefore, considering the entire picture of the Veteran’s PTSD with depression for the period on appeal, the Board finds that the preponderance of the evidence of record demonstrates that a disability rating in excess of the currently assigned 30 percent is not warranted, and the Veteran’s claim for an increased rating is thus denied.

Michael A. Pappas

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board J. Tunis, 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.

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