Citation Nr: 1736567	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  08-06 956A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

What evaluation is warranted for posttraumatic stress disorder (PTSD) from October 31, 2007 to February 24, 2015?


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Carsten, Counsel

INTRODUCTION

The Veteran served on active duty from July 1967 to May 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. 

In addition to the evaluations currently in effect for PTSD during various periods, the Veteran was awarded a 100 percent evaluation from March 23 to May 31, 2009 and again from October 6 to October 31, 2009 based on hospitalization for periods in excess of 21 days for treatment of PTSD under the provisions of 38 C.F.R. § 4.29 (2016). 

In March 2013, a travel board hearing was held before the undersigned Veterans Law Judge (VLJ). 

In June 2013, the Board denied entitlement to an initial evaluation in excess of 30 percent for PTSD from September 20, 2006 to October 30, 2007. At that same time, the Board remanded for additional development the issue of entitlement to an evaluation in excess of 50 percent for PTSD from October 31, 2007. 

In an August 2014 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand and vacated the Board's June 2013 decision denying entitlement to an evaluation in excess of 30 percent for PTSD during the period from September 20, 2006 to October 30, 2007 for action consistent with the Joint Motion. 

In a decision of November 2014, the Board once again denied entitlement to an evaluation in excess of 30 percent for PTSD during the period from September 20, 2006 to October 30, 2007. At that same time, the Board remanded for additional development the issue of entitlement to an evaluation in excess of 50 percent for PTSD effective from October 31, 2007. In April 2015, VA granted a 70 percent evaluation for PTSD effective from February 25, 2015. 

In November 2015, the Board denied entitlement to an initial evaluation greater than 50 percent for PTSD for the period from October 31, 2007 to February 24, 2015; and denied entitlement to an initial evaluation greater than 70 percent for PTSD from February 25, 2015. 

The Veteran appealed the Board's decision to the Court. In a January 2017 Memorandum Decision, the Court vacated the Board's decision and remanded the matter for further proceedings consistent with the decision. The Court specifically noted that the appellant raised no cognizable arguments regarding the denial of a higher disability rating after February 25, 2015.  Thus, the Court did not address that issue further. See DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011) (Court's disposition of case addressed only those portions of the Board decision raised on appeal). Accordingly, the Board will limit its discussion to the period from October 31, 2007 to February 24, 2015. 

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. 


FINDINGS OF FACT

1. For the period from October 31, 2007 to April 16, 2013, the Veteran's PTSD was not manifested by occupational and social impairment with deficiencies in most areas. 

2. For the period from April 17, 2013 to February 24, 2015, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas. 



CONCLUSIONS OF LAW

1. For the period from October 31, 2007 to April 16, 2013, the criteria for a rating greater than 50 percent for PTSD were not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411.

2. For the period from April 17, 2013 to February 24, 2015, the criteria for a 70 percent rating, and no more, for PTSD were met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Analysis

As set forth, the Veteran is currently in receipt of a 50 percent evaluation for PTSD for the period from October 31, 2007 through February 24, 2015, exclusive of any periods where a 100 percent rating was in effect. The Veteran contends a higher evaluation is warranted during this period.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. 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. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2016). If there is a question as to which evaluation to apply, 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 (2016).

PTSD is evaluated pursuant to the General Rating Formula for Mental Disorders. A 50 percent evaluation is warranted when 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 

A 70 percent evaluation is warranted when 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 the inability to establish and maintain effective relationships. Id.

A 100 percent evaluation is warranted if there is 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. Id.

In the January 2017 Memorandum Decision, the Court stated that the Board noted the absence of specific symptoms corresponding to a 70 percent rating, but that these findings were inadequate because merely listing the symptoms that the appellant does not display without analyzing the symptoms he does display does not facilitate informed review. The Court further found that the Board's discussion of the April 2013 Disability Benefits Questionnaire was inadequate because it provided no explanation for why it believed the Veteran's symptomatology noted during the course of the questionnaire was inconsistent with the Disability Benefits Questionnaire's ultimate conclusion. Additionally, the Court agreed that the Board failed to consider favorable, retrospective evidence in the February 2015 examination (e.g., that multiple symptoms had a duration of "more than 1 month"). 

At the time of a period of VA hospitalization extending from October 31 to November 2, 2007, it was noted that the Veteran had been admitted due to an exacerbation of his PTSD symptomatology. At the time of admission, the Veteran complained of nightly nightmares, intrusive thoughts multiple times weekly, anxiety, avoidance of public places, emotional restriction and numbing, and decreased memory and concentration, as well as hypervigilance and an increased startle response. On mental status examination, the Veteran's mood and appetite were described as "OK." The Veteran's sleep was poor, but he denied any problems with hallucinations or delusions. The Veteran was alert and well oriented, with an adequate memory, but poor insight and/or judgment. At discharge it was noted that, while initially anxious and guarded, the Veteran was "doing better" as his admission progressed. He was noted to deny suicidal and homicidal ideation, and he did not show psychotic behavior. 

During the course of VA outpatient treatment in November 2008, it was noted that the Veteran presented as somewhat anxious, with continued vigilance, intrusive thoughts of Vietnam, social withdrawal, and occasional sleep difficulties. He denied any problems with depression or suicidal ideation. 

When admitted for Phase I of a VA PTSD program in March 2009, the Veteran was described as clean and casually dressed. On mental status examination, the Veteran was cooperative and maintained good eye contact. His speech was goal-directed, with a normal rate, tone, and prosody. While his mood was depressed and his affect anxious, there was no evidence of suicidal or homicidal ideations. There was no evidence of a formal thought disorder. The Veteran denied both hallucinations and delusions, and was alert and well-oriented in all spheres. At the time of evaluation, his memory appeared intact and his sensorium was clear. Insight and judgment was described as fair, and there was no evidence of any delirium. 

In a May 2009 VA discharge summary, reflecting a period of hospitalization during March and April 2009, it was noted that at discharge, the Veteran appeared more aware of his behavioral tendencies and how these impacted his relationships. He was alert and fully oriented, with no evidence of psychotic symptoms, or of suicidal or homicidal ideation. 

In an October 2009 VA discharge summary, it was noted that the Veteran lived with his wife, and was employed as a lineman with a local electric company. On specific psychiatric symptom inventory, the Veteran reported frequent anxiety, middle and terminal insomnia, problems with concentration (but not memory), restlessness, decreased libido, and social withdrawal. Additionally noted were problems with spontaneous panic attacks which occurred approximately weekly and which were not associated with agoraphobia. When questioned, the Veteran complained of recurrent thoughts/dreams of his traumatic combat experiences, as well as flashbacks, and both emotional and physiologic reactivity to cues which reminded him of those events. Also noted was amnesia for parts of the relevant events, as well as avoidance behavior, emotional numbing and distancing, hypervigilance, and an exaggerated startle response. The Veteran denied any sense of a foreshortened future and additionally denied significant sad mood, irritability, anhedonia, fatigability, any recent major change in weight/appetite, symptoms suggestive of bipolarity or obsessive compulsive disorder, delusions, or hallucinations. Finally, he denied suicidal or homicidal ideation. 

On mental status examination, the Veteran was alert and well-oriented, with no evidence of any significant cognitive/memory impairment. His mood was somewhat anxious, and his affect mildly constricted, though appropriate to thought content, with no evidence of any formal thought disorder. 

In a May 2011 VA discharge summary, the Veteran reported ongoing PTSD symptomatology, but specifically denied any recent major change in weight/appetite, as well as delusions, hallucinations, and suicidal or homicidal ideation. On mental status examination, the Veteran was described as alert and cooperative, with good eye contact, and no evidence of any tremors or abnormal movements. His speech was normal in rate, volume, and tone prosody, though his mood was moderately anxious. The Veteran's affect was of a full range, and congruent with his mood. Cognition was described as intact, with memory described as grossly intact. The Veteran denied both suicidal and homicidal ideation and intent, and there was no evidence of any auditory or visual hallucinations. The Veteran's thought processes were linear, and his thought content showed no evidence of any delusions. At the time of evaluation, both insight and judgment were described as good. 

At the March 2013 hearing, the Veteran testified that he had panic attacks almost daily, and that he had a lot of anxiety. He also reported nightmares and trouble sleeping. He reported that he was in a program because of the PTSD and drinking. He reported that his PTSD had gotten worse since his 2007 VA examination.

On April 17, 2013, a VA psychologist completed a Review PTSD Disability Benefits Questionnaire. The examiner noted relevant history, indicating the Veteran had a recent admission to a substance abuse program and was asked to refrain from returning to work until program completion. Symptoms were reported as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work, inability to establish and maintain effective relationships, and disorientation to time or place. The examiner summarized the Veteran's disability as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He further stated the impairment was all attributable to PTSD. 

The Veteran underwent a VA psychiatric examination on September 16, 2013, during a period of inpatient hospitalization. It was noted that symptomatology attributable to the appellant's PTSD was best characterized as producing occupational and social impairment, with reduced reliability and productivity. At the time of examination, the Veteran indicated that he was still married and continued to work. Symptomatology attributable to the Veteran's PTSD was described as consisting of a depressed mood, anxiety, and suspiciousness, as well as chronic sleep impairment, and mild memory loss. Language and thought processes were linear and logical, without evidence of psychosis. 

A September 30, 2013 VA discharge summary shows the Veteran was admitted on September 10th for his fifth inpatient PTSD admission. Mental status examination at admission showed he was alert and oriented, with normal speech. The appellant's mood was euthymic and occasionally he feels depressed. There was no evidence of unusual thought content and no suicidal or violent ideation. Insight and judgment were good. At discharge, his affect was brighter, otherwise unchanged from admission. 

During the course of VA outpatient treatment in early January 2014, the Veteran denied depression. His affect was bright and appropriate, and he denied both suicidal and violent ideation. No psychotic symptomatology was in evidence, and according to the Veteran, his panic/anxiety symptoms had improved. The Veteran's speech was normal, and his self-care was described as "good."

During VA outpatient treatment in September 2014, the Veteran was once again described as stable. He denied depression, and his affect was bright and appropriate. Once again, the Veteran denied both suicidal and violent ideation. No psychotic symptomatology was in evidence, and the Veteran's panic/anxiety symptoms remained improved. Speech was normal and self-care was described as "good." The Veteran was pleasant and talkative. Cognitive examination showed that he was grossly intact. 

At a VA psychiatric examination on February 25, 2015, the Veteran arrived on time for his appointment, and was both alert and well-oriented to person, place, and time. His thinking was logical and goal-oriented.  His speech fluent and of normal rate and volume, though some word finding difficulty was evident. Auditory comprehension was within normal limits. According to the examiner, the Veteran presented as casually dressed, neatly groomed, polite and cooperative. The claimant's mood was anxious and depressed. The Veteran's affect was described as constricted in range, though he exhibited no signs of hallucinations or delusions. He denied homicidal and suicidal ideation.

In the opinion of the examiner, it was at least as likely as not the case that symptomatology due solely to the Veteran's PTSD was productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The examiner further noted that the Veteran continued to maintain full-time employment and did not meet the next-higher rating category of total occupational and social impairment. 

Considering the evidence of record, the Memorandum Decision of the Court, and after resolving reasonable doubt in the Veteran's favor, the Board finds that as of April 17, 2013, the Veteran's disability picture more nearly approximated occupational and social impairment with deficiencies in most areas and thus, a 70 percent rating, and no more, is warranted. 

Prior to April 17, 2013, there was some fluctuation in the claimant's symptoms, but the overall disability picture did not more nearly approximate occupational and social impairment with deficiencies in most areas, and a rating in excess of 50 percent is not warranted. The Board acknowledges that the Veteran experienced numerous PTSD symptoms; including nightmares, sleep impairment, anxiety and panic attacks, as well as some impairment in insight and judgment. Although he also experienced some difficulties with work, he was able to maintain employment. He also had a long-term marriage and maintained relationships with his children and grandchildren. There was no evidence of a thought disorder. The Board further observes that the Veteran consistently denied suicidal ideation and there was no evidence of obsessional rituals or illogical, obscure or irrelevant speech. While he experienced some panic and depression, it was not near-continuous and certainly did not interfere with his ability to function independently. There was no evidence of impaired impulse control or neglect of personal appearance or hygiene.

The Memorandum Decision noted that the Board failed to consider favorable retrospective evidence in the February 2015 VA examination which shows the Veteran's symptoms had a duration of more than one month. As noted, the Board is granting the 70 percent rating from April 2013; thus, further consideration of this is not warranted. The Board acknowledges, however, that the April 2013 examination report also noted the duration of symptoms was more than one month. The Board observes that this is in reference to the symptoms which are listed as the criteria for making a PTSD diagnosis, and the statement as to duration does not necessarily speak to the severity of the symptoms or their resulting impairment. The Board further acknowledges the Veteran's testimony at the hearing that his condition had worsened since his 2007 examination, but the clinical evidence of record preponderates against finding a factually ascertainable increase to 70 percent until April 17, 2013, at which time the evidence showed the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas. 

Information in the record indicates the Veteran last worked full-time in June 2015 and he is currently in receipt of a total rating based on individual unemployability effective from July 1, 2015. There is no basis for further consideration pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).



ORDER

For the period from October 31, 2007 to April 16, 2013, entitlement to a rating greater than 50 percent for PTSD is denied.

For the period from April 17, 2013 to February 24, 2015, entitlement to a 70 percent rating, and no more, for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits.





____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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