Citation Nr: 1736582	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-21 203	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Molly Steinkemper, Esq.


WITNESSES AT HEARING ON APPEAL

Veteran and the Veteran's fiancé



ATTORNEY FOR THE BOARD

RLBJ, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 2004 to November 2005.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  The RO initially granted service connection for PTSD and assigned a 10 percent rating effective November 9, 2010.  The Veteran appealed, requesting a higher rating for his PTSD disability.

The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2013.  A transcript of the hearing is associated with the claims file.

In May 2016, the Board issued a decision that awarded a 50 percent rating for the Veteran's PTSD, remanding the issue of entitlement to a rating in excess of 50 percent.  In May 2016, the RO issued a decision implementing the 50 percent rating for PTSD. 

The Veteran's claims file, which is found in the VA's Benefit Management System (VBMS) and Legacy Content Management (LCM) databases, provides the foundation for the Board decision rendered below.



FINDINGS OF FACT

1. Throughout the period of appeal, the Veteran's PTSD has been manifested by symptoms such as depression, anxiety, irritability, nightmares, sleep disturbance, and diminished interest in activities.

2. Throughout the period of appeal, the Veteran's service-connected PTSD symptoms more nearly approximated a disability picture manifest by occupational and social impairment with reduced reliability and productivity; neither occupational and social impairment with deficiencies in most areas or total occupational and social impairment is shown.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 50 percent for PTSD have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.21, 4.130, Diagnostic Code 9411 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VCAA Duties to Notify and Assist

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined.  The VCAA provides that VA shall inform a claimant of the evidence necessary to substantiate his or her claim for benefits, and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).

The Veteran's claim for an increased initial rating for his PTSD disability is considered a "downstream" element of the agency of original jurisdiction's (AOJ) grant of service connection.  For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  In correspondence dated November 2010, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim for service connection of PTSD, including what part of the evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 6 Vet. App. 183, 187 (2002).

In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated; it has been proven.   See Dingess, 19 Vet. App. at 490-91.  Therefore, section 5103(a) notice is no longer required, because the purpose that the notice is intended to serve has already been fulfilled.  Id.  

In April 2013, the Veteran and his fiancé testified at a Board hearing.  Neither the Veteran nor his representative have identified any prejudice in the conduct of the hearing, and the record reflects that the undersigned VLJ clarified the issues on appeal, elicited testimony on the elements necessary to substantiate the appeal, and sought to identify any further necessary development needed to substantiate the Veteran's claims.  These actions satisfied the duties a VLJ has to explain fully the issue(s) and to suggest the submission of evidence that may have been overlooked. See 38 C.F.R.  § 3.103(c)(2); see also Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims.  Service treatment records, post-service treatment records, and lay statements have been associated with the record.  The Veteran was afforded VA examinations.  As the examinations included reviews of the pertinent medical history, clinical findings, and diagnoses, and were supported by medical rationale, the Board finds that the examinations are adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  VA continued its assistance duty by contacting the Veteran on August 25, 2016 and scheduling a new VA examination for September 1, 2016.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance duties.  Thus, the claims are ready to be considered on the merits.

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).     

II. Disability Rating Principles 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), which is found in 38 C.F.R. Part 4 . 

The 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.A. § 1155; 38 C.F.R. § 4.1.  In resolving this factual issue, the Board may only consider the specific factors as enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994).

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the entire recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999). 

Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 
 
Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3.

III. Rating in excess of 50 Percent Rating for PTSD

The Veteran's PTSD is currently rated as 50 percent disabling, pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.  The Veteran contends the disability picture is more severe than presently rated, warranting a higher disability rating. 

The General Rating Formula for Mental Disorders, found at 38 C.F.R. § 4.130, provides the following ratings for psychiatric disabilities: 

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, warrants a 50 percent rating.  Id. 

A 70 percent rating is warranted where the disorder is manifested by 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 that is 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, an inability to establish and maintain effective relationships.  Id. 

A 100 percent disability rating is 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; and memory loss for names of close relatives, or for the veteran's own occupation or name.  Id.

The use of the term "such as" in the General Rating Formula for Mental Disorders 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 mere examples of the type and degree of symptoms, or their effects, which would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.   

The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  Id.   

The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to symptoms provided in that Diagnostic Code.  Id. at 443.  Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-V).  Id. 

If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to what would be caused by the symptoms listed in a particular diagnostic code, the appropriate, equivalent rating will be assigned.  Mauerhan, 16 Vet. App. at 442.

Further, when evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity.  38 C.F.R. §§ 4.126, 4.130.

At this point, the Board notes that the Veteran scheduled a VA examination for September 1, 2016.  In an August 2016 letter, the Veteran was notified about the consequence of failure to report to a scheduled VA medical examination.  See 38 C.F.R. § 3.655(b).  Although he confirmed the examination date on August 25, 2016, the Veteran missed the scheduled examination. 

When a claimant fails to report for an examination scheduled in conjunction with a claim for increase, without good cause, the claim shall be denied.  Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.  See 38 C.F.R. § 3.655; see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997); Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992).  Neither the Veteran nor his representative has offered a "good cause" for the missed VA examination on September 1, 2016.  

Since the Board does not have an updated psychiatric examination to conduct the following analysis, it must base the resultant, following increased-rating conclusion on the current evidence of record.  See 38 C.F.R. § 3.655 (b) (when a claimant fails to report for a VA examination or re-examination that is scheduled in conjunction with an original claim, and fails to provide good cause for the failure to report, the claim shall be rated based on the evidence of record).
  
IV. Analysis

The Board has thoroughly reviewed the Veteran's entire claims file and concludes that a PTSD rating in excess of 50 percent is not warranted at any time during the course of the appeal.  While reaching this conclusion, the Board notes that the Veteran has multiple PTSD symptoms, to include isolative tendencies, short-term memory issues, sleep disturbances, depression, and alcohol dependency.  

Near the outset of the claim period, an OEF/OIF medical assessment was conducted in December 2010.   The Veteran reported symptoms that included, difficulty sleeping, a heightened startle reflex, and an increased preoccupation with home security.  For the relevant claim period, this examination marks the onset of his distaste for crowds and public places.  The Veteran reported an inability to relate to others, resulting in detachment.  The Veteran indicated that his anxiety led to avoidance of people and places.  The Veteran reported that his PTSD did not create hopeless feelings or suicidal thoughts.  The Veteran reported dysphoria because of his symptoms.  Ultimately, the reporting physician noted a GAF score of 60 to 65.  
       
At a February 2011 examination, the Veteran reported that he was currently employed as a D.J. and Professional Hunter-Outfitter.  While not at work, the Veteran reported teaching his little brother how to hunt.  

At the time of this examination, the Veteran reported socializing with his friends on the weekends.  He was not dating at the time of the examination, and he had not dated in a few years.  He had no history of suicide attempts or violence/assaultiveness.  He was clean and casually dressed with unremarkable psychomotor activity, speech, thought process, and thought content.  While his affect was restricted and his mood was anxious, his attitude toward the examiner was cooperative, friendly and attentive.  His attention to detail was intact and he was oriented to person, time, and place.  He had no delusion or hallucinations and was able to understand the outcome of behavior.  He had no inappropriate behavior and interpreted proverbs appropriately.  He had no obsessive/ritualistic behavior, homicidal thoughts, suicidal thoughts, or panic attacks.  His impulse control was good and he was able to maintain minimum personal hygiene with no problems with activities of daily living.  

While assigning a GAF score of 68, the medical provider concluded that, "there (are) PTSD signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress."  Along with this conclusion, the provider noted that the Veteran's symptoms included, bi-weekly nightmares, infrequent intrusive thoughts, mild physiological relations, mild avoidance of trauma, mild hypervigilance, mild startle reaction, and mild difficulty falling asleep.   See VA Examination, dated February 17, 2011.

At the April 2013 Board hearing, before the undersigned VLJ, the Veteran and his fiancé testified about the symptoms that were associated with his service-connected PTSD disability.  Their testimony was revealing, regarding the social and economic effects that resulted from the Veteran's PTSD symptoms.  

The Veteran testified that his PTSD-related symptoms had resulted in diminished or eliminated time spent with friends and family.  The Veteran also indicted that his PTSD symptoms led to no participation in recreational leagues or other public activities, e.g. church.  Aside from occasional fishing trips with his fiancé's son, the Veteran spent a great deal of time at home, drinking beer, and playing video games.

The Veteran testified that he had held ten different jobs in the preceding five-year span.  At his hearing, the Veteran indicated that his last employment termination was related to PTSD because of, "(d)isgruntlement with a fellow veteran employee I guess."  The Veteran continued, "I have a hard time dealing with people . . .."

The Board also acknowledges that the Veteran, and his fiancé, can competently testify about the PTSD symptoms they have experienced and/or witnessed.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009)(citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  Consequently, the PTSD "flare-ups," which were accompanied by multiple, weekly depressive episodes and panic attacks, are clearly within the Veteran's ability to competently report.  Likewise, the Veteran's fiancé was competent to testify about the Veteran's anger and inability to adapt to a subordinate's role in the workplace.

Subsequent treatment records show that the Veteran was an electrician; however, he reported collection of workman's compensation for approximately 1.5 years, because of a shoulder injury.  The Veteran continued to have difficulty sleeping during this period, tossing, turning, and rising several times each night.   Constant anger was prevalent, and the Veteran reported anxiety, vigilance, and irritability.  In December 2013, the Veteran reported reduced social interaction, avoiding public places and crowds.  See CAPRI, dated December 15, 2015. 

At a July 2015 examination, the Veteran reported employment as a C&C machinist for UTC Aerospace Systems in York, NE.  The Veteran stated that his employment at UTC had lasted for the preceding five months.   The Veteran also reported previous employment in welding and fabrication, semi-truck driving, and additional electrical technician jobs in the past.

During the examination, the Veteran demonstrated intact memory, to include remote, recent and immediate.  Although he supplied brief and non-elaborative responses, the clinical psychologist concluded that the Veteran's attention, concentration, insight, and judgement were intact.

The Veteran told the clinical psychologist that his traumatic stressor(s) have had multiple effects, indicating "anxiety, anger . . . I used to hang out with friends, and now don't and don't talk to them or see them . . .."  The Veteran reported an ongoing sleeping difficulty, approximately 3.5 to 4 hours per night.  The Veteran also reported, "I have had trouble getting along at work, and don't like people . . .."

At the conclusion of this examination, depressed mood, anxiety, suspiciousness, and sleep impairment were all noted by the clinical psychologist.  The Veteran supported these notes with reports of anxiety, constant anger, and stress.  Additionally, the Veteran reported nightmares.  Poor interaction with co-workers was another pertinent symptom offered by the Veteran.  Outside the workplace, the Veteran reported poor social interaction and reduced enjoyment of recreational activities.  

For the four-year period since his previous VA examination, the Veteran reported (at this examination) the loss of six different jobs because of his reduced ability to function in the workplace.  

The VA clinical psychologist concluded, "occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation."  See VA Examination dated July 24, 2015. Ultimately, the Veteran's Occupational and social impairment result in reduced reliability and productivity.

After consideration of all of the available evidence, the Board concludes that the Veteran's claims file creates a PTSD disability picture that aligns with the 50 percent criteria found in 38 C.F.R. § 4.130.  Neither the 2011 nor 2015 VA examiner determined that the Veteran's symptoms were consistent with either occupational and social impairment in most areas or total occupational and social impairment as contemplated by a higher disability rating.  The evidence does not establish that the Veteran has symptoms such as suicidal ideation; obsessional rituals; or intermittently illogical, obscure, or irrelevant speech; near continuous panic or depressing affecting the ability to function; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation neglect of personal appearance; or hygiene difficulty.  Likewise, while the Veteran avoids crowds and public places, the record does not show an inability to establish and maintain effective relationships.  As noted in the 2015 examination report, the Veteran was able to attend school and had two associates from school.  He had distant relationships with extended family that lived in the far western end of the state.  While he was on workman's compensation for a nonservice-connected shoulder condition, he was employed by an engineer.  

Since the Veteran failed to report to a scheduled September 1, 2016 VA examination, the Board does not have any additional evidence to further clarify or magnify the PTSD disability picture today, or during the applicable claim period.  

In light of the foregoing, the Board concludes that the criteria for a rating in excess of the currently assigned 50 percent disability are not met at any time during the course of the appeal.  Accordingly, the claim for a higher disability evaluation for PTSD is denied.  

V. Rice Consideration

In a June 2012 Statement in Support of Claim, the Veteran notified VA that he had lost his job and was unemployed.  During his April 2013 Board hearing testimony, the Veteran and his fiancé revealed that PTSD symptoms made maintaining employment difficult.  Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability evaluation due to individual unemployability (TDIU).  Rice v. Shinseki, 22 Vet. App. 447 (2009).  

Here, the TDIU analysis must consider the Veteran's reported employment history (to medical personnel) during the claim period: 

Early in the claim period, while completing a February 2011 VA examination, the Veteran reported fulltime employment as a D.J. and professional hunter-outfitter.  

At a March 2012 VA examination, the Veteran reported working as an electrician.

While undergoing a July 2015 VA examination, the Veteran reported current employment as a C&C machinist for UTC Aerospace Systems in York, NE.

The Board acknowledges that in Rice the Court held that a claim for total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record.  Id.  However, the Veteran does not contend, and the evidence does not show, that he is unemployable due to PTSD.  Accordingly, a claim for a total rating based on unemployability due to PTSD  has not been raised and, therefore, no action pursuant to Rice is necessary.  Id. 


ORDER

Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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