ÿþCitation Nr: 18127717

Decision Date: 08/20/18	Archive Date: 08/20/18



DOCKET NO. 15-35 299A

DATE:	August 20, 2018

ORDER

Entitlement to an initial rating of 70 percent for posttraumatic stress disorder (PTSD) with dysthymia is granted.

Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected PTSD, from June 30, 2012 forward, is granted.

FINDINGS OF FACT

1. The Veteran s PTSD was manifested by social and occupational impairment in most areas with symptoms such as near-continuous panic or depression, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships; total occupational and social impairment has not been shown during this period.

2. Since June 30, 2012, the Veteran s service-connected PTSD alone has precluded him from securing or following a substantial gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for an initial rating of 70 percent for PTSD have been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017).

2. Since June 30, 2012, the criteria for a TDIU, based solely on service-connected PTSD, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Army from March 1969 to March 1971. 

These matters come to the Board of Veterans  Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center in Washington, District of Columbia.  Jurisdiction is currently retained by the Regional Office (RO) in Winston-Salem, North Carolina.  



Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). 

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board. ); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 



Increased Schedular Rating

Disability evaluations are determined by the application of the facts presented to VA s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  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 the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Notwithstanding the waxing and waning of the manifestations and individual clinician observations and finding, the service-connected PTSD has in the aggregate not materially changed, and a uniform evaluation is warranted for the entire period on appeal.

If the evidence for and against a claim is in equipoise, the claim will be granted.  38 C.F.R. § 4.3.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran s capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner s assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126 (2017).

Effective March 19, 2015, VA adopted as final, without change, an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders.  The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-5.  Specifically, the rulemaking amended 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130.  

The Veteran s PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

Diagnostic Code 9411 provides that a 50 percent rating is warranted where 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; and difficulty in establishing and maintaining effective work and social relationships. 

A 70 percent rating is warranted where there is 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.  Id.  The Federal Circuit has found that § 4.130 requires an ultimate factual conclusion as to the veteran s level of impairment in  most areas  for a 70 percent rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). 

A 100 percent rating 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; or 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 of similar type and degree that affect the level of occupational and social impairment.  Id.  

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336 37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran s lay statements. Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran contends he is entitled to an initial rating in excess of 30 percent for service-connected PTSD.  Based on the evidence of record, the Board finds that an initial rating of 70 percent, but no higher, for the entire period on appeal is warranted.  

Private outpatient treatment records dated November 2010 reflect the Veteran endorsed nightmares, flashbacks, sporadic panic attacks, night sweats, hypervigilance, intrusive thoughts, and auditory and visual hallucinations.

The evidence of record reflects that the Veteran s treating psychiatrist submitted a letter on behalf of the Veteran dated December 2010.  The psychiatrist reported that the Veteran has nightmares two to four times per month, has flashbacks with reminders, occasional panic attacks, and averages four to five hours of sleep per night.  The psychiatrist further indicated that the Veteran has intrusive thoughts, startles easily, is hypervigilant, and cannot tolerate anyone behind him, but is able to socialize regularly.  The letter also noted that the Veteran s recent memory is severely impaired, such that he is unable to remember what he reads or gets lost when traveling, and that his working memory is  100 percent impaired.   The psychiatrist reported that the Veteran experiences anger, sadness, and fear without understanding the cause about 70 percent of the time, which indicates his prefrontal cortex is dysfunctional.  The letter referenced the Veteran s hallucinations and illusions, including the Veteran hearing his name called, cars drive up to his residence, and footsteps inside of his house three to five times per week, as well as seeing shadows one to two times per week.  The psychiatrist reported that the Veteran feels depressed 75 percent of the time with low energy and little interest in things, has crying spells 30 percent of the time, angers and agitates easily, and feels helpless.  

The Board notes that the Veteran s treating psychiatrist indicated in his December 2010 letter that the Veteran is severely compromised in his ability to sustain social relationships and is unable to sustain work relationships.

The evidence of record reflects the Veteran was afforded a VA mental disorders examination in June 2011.  The Veteran endorsed depressed mood, lack of interest in things, fatigue, feelings of worthlessness, crying sleeps, problems with sleep, and thoughts of death and dying.  The examination report further referenced the Veteran s efforts to avoid thoughts, feelings, or conversations associated with the trauma, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, and sense of a foreshortened future.  The examiner noted the Veteran s report of a successful 29-year career as a salesman and that he retired in 2009 because of age and duration of work.  The examiner assessed the disability as serious.  

In July 2011, the Veteran s treating psychiatrist submitted a follow-up letter.  The psychiatrist primarily reported symptoms similar to those espoused in the December 2010 letter.  The Board notes that the treating psychiatrist reported that the Veteran feels depressed 90 percent of the time.

Subsequent private clinical records dated March 2011 to October 2012 indicate the Veteran continued to endorse nightmares, flashbacks with reminders, panic attacks once to twice per week, night sweats, and hallucinations.  In January 2013, the Veteran reported five hours of sleep per night, nightmares, and occasional panic attacks, flashbacks, night sweats, and visual hallucinations.  Thereafter, private outpatient treatment records dated September to December 2013 note weekly nightmares, panic attacks, flashbacks, night sweats, and auditory and visual hallucinations.  

From July 2014 to July 2015, the Veteran presented with a depressed and irritable mood, and endorsed nightmares, panic attacks, flashbacks, night sweats, and hallucinations on a weekly to occasional basis.  In January 2016, the Veteran reported worsening anger and depression.  Subsequent treatment records dated September 2016 continued to reflect worsened anger and depression, as well as worsening recent memory.  As indicated on prior treatment visits, the Veteran reported  broken  sleep, and weekly to occasional nightmares, panic attacks, flashbacks, and night sweats.

In October 2016, the Veteran s treating psychiatrist completed a Disability Benefits Questionnaire on the Veteran s behalf.  The treating psychiatrist opined the Veteran has a total occupational and social impairment.  The treating psychiatrist reported the Veteran has symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, and impaired judgment.  The psychiatrist further indicated that the Veteran has disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and an inability to establish and maintain effective relationships.

As such, based on the Veteran s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows his disability picture more nearly approximates the level of severity contemplated by a 70 percent rating for PTSD, which contemplates impairment in most areas, for the entire period of the appeal.  38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411.

While the severity of the Veteran s PTSD rises to the level envisioned by the 70 percent rating threshold, the Veteran did not display a manifestation of symptoms with the severity, frequency, and duration comparable of a 100 percent disability rating.  Statements submitted by the Veteran s treating psychiatrist and December 2010 VA examiner collectively did not report 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name.  Furthermore, the medical evidence of record does not reflect persistent suicidal plans or intent, a history of violence, or actual attempts of self-violence or violence towards others.  Therefore, a total occupational and social impairment has not been shown.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369 70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran s disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).

Therefore, for the reasons stated above, the Board finds that a rating of 70 percent, but no higher, for the Veteran s PTSD is warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).



TDIU

The issue of entitlement to a TDIU due to service-connected PTSD has also been raised by the record during the course of this appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  See 38 C.F.R. § 4.16.  A finding of total disability is appropriate  when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.   See 38 C.F.R. §§ 3.340(a)(1), 4.15.

TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability.  38 C.F.R. § 4.16(a). 

The central inquiry is,  whether the veteran s service-connected disabilities alone are of sufficient severity to produce unemployability.   Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Consideration may be given to the Veteran s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

As decided herein, the Veteran s service-connected PTSD is found to be 70 percent disabling since December 30, 2010.  Accordingly, the Veteran meets the schedular criteria for a TDIU from December 30, 2010.  

In the Veteran s November 2016 VA Form 21-8940 received in December 2016, he indicated that he left his previous place of employment on June 30, 2012, not 2009 as previously reported.  He reported that he last worked 60 hours per week.   The Veteran reported that he has not tried to obtain employment since he became too disabled to work.  The Veteran indicated that he has a high school diploma, and no other education or training.

As discussed above, the Veteran s treating psychiatrist indicated in his December 2010 and July 2011 letters that the Veteran is severely compromised in his ability to sustain social relationships and is unable to sustain work relationships.  Notably, in his October 2016 DBQ, the psychiatrist continued to report that the Veteran had not worked since 2009 resulting in less probative weight placed on the earlier assessments of total disability. 

Resolving all doubt in favor of the Veteran, the Board finds that the severity of his service-connected PTSD renders him unlikely to secure and maintain substantial gainful employment.  The Board further notes the opinions expressed in the aforementioned December 2010 and July 2011 letters submitted by the Veteran s treating psychiatrist.  Moreover, the United States Court of Appeals for the Federal Circuit held that applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner.  Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  

To the extent that the Veteran meets the 70 percent rating for PTSD, and that his service-connected disability precludes him from securing or following substantially gainful employment; a TDIU is warranted from June 30, 2012.  This decision is based on the Board s review of the cumulative evidence of record, which also includes the December 2010 and July 2011 private psychiatrist reports and the Veteran s own reported work history.  The evidence supports the assignment of a TDIU due to the significant occupational impairment that results from the Veteran s PTSD alone.

 

J.W. FRANCIS

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	G. A. Ong, Associate Counsel 




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