Citation Nr: 1754947 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-07 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to November 5, 2013, and in excess of 70 percent on and after November 5, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to March 1971, with service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA), which was then temporarily located in Gretna, Louisiana. In November 2013, the Veteran testified at a Travel Board hearing at the RO, before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2015 and February 2017, the Board remanded this matter for further development. In a May 2015 rating decision, the RO granted a 70 percent disability rating for PTSD, effective from November 5, 2013. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains complete VA treatment records and a copy of the November 2013 Board hearing transcript. Otherwise, LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. FINDING OF FACT For the entire appeal period, the Veteran's PTSD with related depression more nearly approximates deficiencies in most areas, but not total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating, of 70 percent, but no more, for service-connected PTSD and depression are met prior to November 5, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for a disability rating in excess of 70 percent for service-connected PTSD and depression have not been met on and after November 5, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his attorney has 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 a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2013. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. In this regard, the Board also finds that there has been compliance with the prior February 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). 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 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). 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 (2017). Consideration of the whole-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). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran is in receipt of a 30 percent disability rating for PTSD prior to November 5, 2013. Thereafter, he is in receipt of a 70 percent disability rating for PTSD. The Veteran's PTSD has been evaluated under 38 C.F.R. § 4.130, DC 9411. Under this code, a 50 percent evaluation contemplates occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. A 100 percent rating 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; gross 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. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). "[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 3 8 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). Notwithstanding the use of the newer manual, the DSM-IV governs this case. The Secretary of VA has specifically indicated that DSM-IV is still to be applied to claims pending before the Board. 79 Fed. Reg. 45094 (Aug. 4, 2014). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (2014). The Veteran has been diagnosed with PTSD and major depressive disorder throughout the appeal period. Depression has been linked on a secondary basis to service-connected PTSD, migraines, bilateral foot, and bilateral knee disorders. Therefore, all psychiatric symptoms will be considered in deciding the Veteran's increased rating claim. Factual History The Veteran submitted a claim of entitlement to service connection for PTSD in August 2007. In an October 2007 statement, the Veteran described suffering from a lack of sleep, depression, frequent nightmares, uncontrolled anger, irritability, and being sad all the time. In an August 2008 correspondence, the Veteran again reported that he had uncontrolled anger, especially with his spouse, other family members, and friends. He had tried without success to attend family functions and other social affairs, but he was unable to follow through with his intentions. He would avoid crowds, holiday events, and other social functions. The Veteran presented for an initial VA examination for PTSD in October 2008. The Veteran reported that his relationship with his spouse was good but that he would frequently argue with her. He isolated and had no friends. Regarding activities or leisure pursuits, the Veteran reported enjoying fishing. He had no history of suicide attempts or violence. The examiner found that the Veteran had limited psychosocial functioning. On psychiatric examination Veteran's mood was depressed and he reported having suicidal ideation. He also reported having difficulty getting to sleep and staying asleep. He would average three to five hours of sleep per day, and he worked nights. He had nightmares three to four times per week, dreaming of his experiences in Vietnam. The examiner noted that the Veteran did not have inappropriate behavior. He interpreted proverbs appropriately. He did not have obsessive or ritualistic behavior, panic attacks, or homicidal thoughts. He did again report the presence of suicidal thoughts, however. The examiner noted that the suicidal thoughts were infrequent and were described as passing with no plan or intent of harm. The Veteran had good impulse control with no episodes of violence. He was able to maintain minimum personal hygiene, and there were no problems with activities of daily living. Memory was normal. The examiner diagnosed PTSD and assigned a GAF score of 55 due to the Veteran's problems in the social environment and marital relationship. The examiner noted that the Veteran's arousal and avoidant symptoms caused him significant deficits in his functional status. He isolated himself almost completely. He had been able to remain employed, however, but this was due to his ability to work on the night shift in a position where he was by himself most of the time. He had lost interest in things he used to enjoy and was much more irritable with outbursts of anger, causing marital strife. The examiner found that PTSD resulted in reduced reliability and productivity, manifested by discord with his wife, irritability with outburst of anger, and isolation with no social interaction. The examiner noted that the Veteran experienced almost the full scope of PTSD symptoms which caused almost total social impairment. He was able to work effectively in his position on a night shift where he worked alone most of the time. He was highly irritable and prone to outburst of anger. He had frequent nightmares concerning being fired upon in Vietnam, as well as his friend committing suicide in Vietnam. The Veteran submitted an accommodation request form from his employer that is dated in October 2009. The Veteran was diagnosed with PTSD by his private psychiatrist, and his prognosis was listed as guarded. The Veteran reportedly had difficulty with attention, concentration, the ability to follow directions, and the ability to cope with stress. The doctor noted that his PTSD was unable to be quantified, but the condition was serious and disabling. An October 2009 VA psychiatric evaluation was conducted. During the interview, the Veteran detailed that post-service he began to suffer from recollections of his time in Vietnam. He would have daily thoughts and occasional dreams and nightmares every two weeks. He was easily startled and hypervigilant and had problems with his concentration. He was easily angered and had insomnia. He was reportedly detached and a loner. On mental status examination, the Veteran was not dressed abnormally and presented as cooperative, pleasant, and with fair eye contact. He related his mood as alright, his affect was anxious, and speech was normal but dysarthric at times. The Veteran was not suicidal at that time. The psychiatrist diagnosed PTSD and major depressive disorder as secondary to PTSD. He was having anxiety consistent with these diagnoses. His diagnoses were causing moderate impairment in his activities of daily living. The psychiatrist assigned a GAF of 48. The Veteran presented for another VA examination in May 2010. PTSD and depression were diagnosed, and the examiner noted that the conditions were severe. The Veteran was having more difficulty at home and at work, given his increasing propensity for sudden anger and misinterpretation of almost anything as a kind of threat. He was speaking less with his siblings. He would reject any ideas his wife would have and did not go out with her. The Veteran would interact with a niece who lived with him, but that relationship was reportedly souring as well. The Veteran described less time and fewer interactions at church, noting that he did not have any friends. He would reportedly just sit and cut grass when it was needed. There was no history of suicide attempts or of violence. The examiner summarized the Veteran's current psychosocial functional status as very poor, noting that he would stay to himself, and when he did interact, he was demanding and likely to explode verbally. He had no friends, no interests, and no motivation. A psychiatric examination showed appropriate general appearance. The Veteran was lethargic and tense, however, and showed poor eye contact. His speech was hesitant, but clear and coherent. Attitude was cooperative, friendly, and attentive. Affect was appropriate yet constricted. His mood was anxious, hopeless, and depressed. The Veteran was easily distracted and he had a short attention span. He was unable to do serial 7's or spell a word forward or backward. However, he was oriented to person, place, and time. Thought process was noted to be a little slow and somewhat sparse. His thought content focused on events from his Vietnam service, and he showed fear and anger in the present. The Veteran showed normal judgment and average intelligence. Regarding insight, the Veteran expressed understanding that he had a problem. He had sleep impairment, and the examiner noted that it interfered with his daily activities because he was tired. The Veteran did not interpret proverbs appropriately. He did not have obsessive/ritualistic behavior, panic attacks, or homicidal thoughts. He did have suicidal thoughts but with no plans, intent, or prior attempts. The examiner noted that the Veteran's impulse control was fair, though he did have episodes of violence manifested by yelling a lot, but no physical violence. The Veteran was able to maintain personal hygiene, and his PTSD with depression did not impact activities of daily living. Regarding PTSD symptoms, the examiner noted that the Veteran had recurrent and intrusive distressing recollections of his service, resulting in intense psychological distress at the exposure to internal or external cues that symbolize or resemble an aspect of his traumatic in-service stressor. The Veteran practiced persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. This resulted in efforts to avoid thoughts, feelings, or conversations associated with the trauma, as well as efforts to avoid activities, places, or people that arouse recollections of his trauma. The examiner noted that the Veteran had markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, and a sense of a foreshortened future. The Veteran had persistent symptoms of increased arousal, such as difficulty falling or staying asleep, irritability or outburst of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The examiner found that the frequency, severity, and duration of the PTSD symptoms found were constant, severe, and increasing in severity. The examiner diagnosed PTSD and depression, not otherwise specified. He assigned a GAF score of 42. The fairly low GAF, noted the examiner, represented a decrease in overall psychosocial functioning since the last VA examination. The Veteran seemed to be angrier, isolating more, having more nightmares, having less ability to stay focused on tasks, and thinking about Vietnam more and paying less attention to the world around him. The examiner concluded that the Veteran was having work difficulties with his distractibility and his temper. He did not like to bathe, he had emotionally abandoned his family, and he would do nothing but work and come home. He had no friends, no interest, no energy, and no motivation. The examiner noted that these symptoms were due directly to his PTSD. In an August 2010 note from Dr. VV, who had treated the Veteran for PTSD and major depression, recurrent, severe, since February 2010, stated that during the course of his treatment, the Veteran had consistently reported having a depressed mood and being angry. Dr. VV noted that the Veteran had no motivation, did not want to go out or interact with others, and had occasional fleeting thoughts of suicide. He denied having any plans, however. His wife would accompany him to his appointments and confirm his symptoms. Private psychiatric treatment records from Dr. VV dated from September 2011 through April 2012 assessed that the Veteran tended to present with labile affect, depressed mood, but no suicidal ideation. He complained of insomnia, and his wife reported in December 2011 that the Veteran would think someone was calling his name. He had anger problems and would act out on them. At the November 2013 Board hearing, the Veteran testified that he had problems with his memory. He also testified that he had suicidal thoughts, difficulty dealing with the public and with his home life, and anger issues. He reported that his PTSD affected his life significantly, causing arguments in his marriage and with his family, and in interactions with customers while he is at work. He had been disciplined four times because of interactions with a customer. He testified that his wife would write down information such as appointment times for him so he would not forget them. His wife testified that he was slow when asked questions during psychiatric treatment, sometimes not being able to remember answers. His attitude had changed tremendously. The Veteran and his wife used to entertain and belong to a club. Now, however, the Veteran would isolate and they would not entertain guests. His wife testified that his PTSD had affected their family significantly. She also expressed her worry that the Veteran was in danger of hurting himself. She noted that he would never physically hurt her, but showed reservation with his ability to abstain from mentally hurting her. She also noted that he could not handle stress at all. The Veteran agreed, noting that he could not handle too much stress. He reported that he was a loner. He described that he had suicidal thoughts, acting on it once with a pistol but stopping. Since then, his guns had been hidden from him. VA provided an examination in April 2015. The Veteran was diagnosed with PTSD and other specified depressive disorder, which the examiner noted was secondary to PTSD and was a continuation of the previously diagnosed depression, not otherwise specified. The examiner noted that PTSD resulted in intrusive thoughts, psychological reactivity, avoidance of trauma memories, avoidance of trauma triggers, exaggerated startle, hypervigilance, and insomnia. The examiner noted that assignment of other symptoms to a specific diagnosis was not possible. All psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. The Veteran continued to live in Baton Rouge with his wife and daughter. He preferred to be at home, but isolated from his family members with frequency. The Veteran described having increased irritability with his family members, this report being corroborated by his wife. He enjoyed fishing, but he was unable to go as often as he preferred due to his work schedule. The Veteran worked full-time as a meat cutter. The Veteran expressed a preference for the night shift because he found it difficult to interact with the public. He reported that he had been written up occasionally for arguing with customers. Symptoms actively applicable to the Veteran's diagnoses were depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The examiner also noted that the Veteran experienced at least weekly intrusive thoughts about his service. He also suffered from psychological and psychiological reactivity at least weekly. Nightmares were intermittent. The Veteran reported having flashbacks, but the examiner noted that his description was actually consistent with intrusive thoughts. The Veteran would use prayer to avoid distressing thoughts. The Veteran reported having significant distress from living across the street from a Vietnamese family. He would avoid Vietnamese people in public. The Veteran suffered from chronic negative emotions such as anger, sadness, and guilt. He also experienced difficulty having positive emotions. He was distant from others, including family. He startled easily, and he had difficulty tolerating loud noises. The Veteran estimated having two hours of sleep on an average night, and he was tired during the day. He described hypervigilance and having notable irritability. The PTSD assessment clearly exacerbated the Veteran's level of distress during the clinical interview, though his behavior was appropriate. The examiner noted that the Veteran appeared to make significant efforts to stay seated and tolerate the questions. The Veteran experienced restlessness, frequent depression, and amotivation. He described having frequent passive suicidal ideation. However, as a Christian, he expressed his believe that the only sin that could not be forgiven is self-murder. The examiner remarked that the Veteran continued to meet the full criteria for a diagnosis of PTSD with secondary depression. His symptoms were frequent and moderate to severe in intensity. Based on his self-report, the symptoms appeared to have increased since his last VA examination. While the Veteran was maintaining gainful employment, he described increased difficulty functioning in the occupational domain. The examiner concluded by noting that the Veteran was additionally impaired in social and family functioning. An early April 2017 VA mental health nurses note documents the Veteran presenting for an unscheduled visit requesting his VA psychiatrist. The Veteran refused to go into any details regarding counseling, but he denied suicidal and homicidal ideation. He did note that the thought of suicide had been running across his mind, but he mainly reported hearing "mostly voices" regarding auditory hallucinations. The Veteran presented for another VA examination for PTSD one week later in April 2017. The Veteran received diagnoses of PTSD and major depressive disorder (MDD), noted to be an increase in depressive symptoms from previously diagnosed other specified depressive disorder, but still secondarily related to PTSD. MDD was responsible for the separately enumerated symptoms of depressed mood, suicidal ideation, anhedonia, and feeling of hopelessness. The examiner opined that the Veteran's PTSD and MDD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/or mood. The Veteran was receiving treatment by the Baton Rouge VA clinic and remained employed as a meat cutter. There had been no inpatient stays for psychiatric symptoms since his previous VA examination. The Veteran reported nearly attempting suicide three months earlier when he went on a walk with a gun while feeling down. He did not pull the gun out or use it, however. Symptoms present at that time were depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The Veteran arrived for the clinical interview on time and was casually dressed but in somewhat tattered pants. His mood was depressed. Affect was somewhat blunted. No other behavioral abnormalities were noted. VA treatment records document recurring treatment for the Veteran's PTSD and major depressive disorder. The Veteran has primarily received GAF scores in the 40s throughout the appeal. Specifically, he received scores of 45 in August 2011, 45 in November 2011, 45 in July 2012, 45 in January 2013, 45 in August 2013, 50 in February 2014, 50 in April 2014, 50 in September 2014, and 50 in December 2014. The Veteran received regular VA treatment for his conditions, but the records of such treatment do not provide any more insight into his psychiatric disorders than that already provided by the VA examinations already discussed. Analysis Based on the evidence, the Board finds that the Veteran's disability has caused deficiencies in most areas, sufficient to more nearly approximate the criteria for a 70 percent evaluation for the entire appeal period. Specifically, throughout the appeal, the Veteran's PTSD has been manifested by deficiencies in most areas, to include by such symptoms as intermittent suicidal ideation, near-continuous depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, and difficulty in adapting to stressful circumstances. See 38 C.F.R. § 4.130, DC 9411. The Veteran has consistently shown isolative tendencies, and he has endorsed symptoms of avoidance. His PTSD and depression have overwhelmingly affected his social life to the point where his family is his primary source of meaningful interaction. Further, as shown in the VA examinations throughout the appeal, his psychiatric disorder has a significant and negative impact on his family. The Veteran has also demonstrated chronic sleeping difficulty and insomnia. Further, with the exception of the October 2008 VA examination, the Veteran's GAF scores have been in the 40s or 50 for the entire appeal. As noted above, these scores are reflective of serious symptomatology. Further, even if the October 2008 VA examiner provided a more moderate GAF score, the examination as a whole described a level of disability that reflects deficiencies in most occupational and social areas. His initial VA consultation in October 2009 and the VA examination conducted in May 2010 both document GAF scores in the 40s. In short, these assessments of the Veteran's functional capacity due to his PTSD are persuasive evidence that support the assignment of a 70 percent evaluation. A 100 percent evaluation, however, is not for assignment prior to and after November 5, 2013. The evidence of record does not demonstrate total social and occupational impairment. The Veteran has maintained employment throughout the appeal. He could adequately care for himself and hygiene was not noted to be an issue at any point during the time period. Furthermore, he did not exhibit inappropriate behavior, persistent delusions or hallucinations, a danger to self or others, or disorientation to time or place, or memory loss for names of close relatives, or his own name. Finally, the Veteran's thought processes and communication were not noted to be grossly impaired. In making this finding, the Board acknowledges the VA examination statements showing changed diagnoses pertaining to the Veteran's depression to reflect the condition's worsening. The evidence certainly does suggest that the Veteran's PTSD with depression worsened throughout the appeal. However, as noted above, all symptoms identified and the severity assigned to these symptoms more closely approximate a 70 percent disability rating because the Veteran has not been shown to have total occupational and social impairment. Notably, the Veteran is still employed and remains married, despite that relationship being strained. As such, the Veteran's PTSD and depression does not warrant a 100 percent evaluation. In short, an increased initial rating of 70 percent is warranted prior to November 5, 2013. Prior to and on and after November 5, 2013, a higher rating is not warranted. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence does not support the award of a higher rating for the Veteran's service-connected PTSD and Depression. 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). ORDER Prior to November 5, 2013, an initial disability rating of 70 percent, but not higher, is granted for PTSD with depression. On and after November 5, 2013, a disability rating in excess of 70 percent for PTSD is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO A PPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: * Appeal to the United States Court of Appeals for Veterans Claims (Court) * File with the Board a motion for reconsideration of this decision * File with the Board a motion to vacate this decision * File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: * Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED