Citation Nr: 18139990 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-28 951 DATE: October 2, 2018 ORDER Entitlement to an initial 50 percent disability rating for the period prior to August 10, 2016, for posttraumatic stress disorder (PTSD) is granted. Entitlement to an initial rating in excess of 70 percent for the period since August 10, 2016 is denied. FINDINGS OF FACT 1. For the period prior to August 10, 2016, the Veteran’s service-connected PTSD symptoms were indicative of reduced reliability and productivity. 2. For the period since August 10, 2016, the Veteran’s service-connected PTSD has not resulted in total occupational and social impairment due to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. CONCLUSIONS OF LAW 1. For the period prior to August 10, 2016, the criteria for an initial evaluation of 50 percent, but no higher, for PTSD are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 2. For the period since August 10, 2016, the criteria for an initial evaluation in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2000 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and October 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2016 rating decision, the RO granted an increased initial 70 percent rating, effective August 10, 2016 for a PTSD disability. The Board notes that the increase from 30 to 70 percent for the PTSD disability did not constitute a full grant of the benefits sought. Accordingly, the issue of entitlement to an initial rating in excess of 70 percent for the period from August 10, 2016 for a PTSD disability remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7 (2017). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his PTSD. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In this case, the RO granted service connection for PTSD and assigned an initial 30 percent disability evaluation, effective October 23, 2012 under Diagnostic Code 9411. As noted above, the RO later granted an initial 70 percent disability evaluation, effective August 10, 2016. The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a rating of 30 percent is assigned when the Veteran exhibits occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 affected 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 inability to establish and maintain effective relationships. A 100 percent rating is assigned when 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. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2017). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the “psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). According to the DSM-IV, GAF scores ranging between 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. GAF 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]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech is at times illogical, obscure, or irrelevant] or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood [e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. VA has changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). As the Veteran’s case was certified to the Board after August 4, 2014, DSM-5 applies, and GAF scores are no longer used in evaluation of psychiatric disorder. Id. However, the examiner’s discussion of symptoms associated with any assigned score would still be useful in evaluation of psychiatric disabilities. Factual Background and Analysis The Veteran underwent a VA examination in February 2013. The Veteran had a diagnosis of PTSD and was assessed a GAF score of 61. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was married to his second wife and had a 7 year old daughter from his first marriage and a 2 year old daughter from his current marriage. He spent his spare time watching television and being with his family. He did not participate in any significant social activities or hold a leadership position. He was currently completing his associates degree and was performing well. He also continued to work as a sheriff’s deputy and his work was in good standing. He had difficulty falling asleep most nights of the week and had a few drinks to help him fall asleep. He suffered from recurrent specific and non-specific nightmares. He also had flashbacks during waking hours when external events served to remind him of his combat service. He assiduously avoided watching information about any war. He had not been violent but he was quick to become irritable. He was often sad and anxious as well. He had not been suicidal, homicidal, violent, psychotic, manic, hypomanic, obsessive or compulsive. He drove as if he were still in Iraq as he was watchful, wary and suspicious as he drove and when he was in all social settings. He was routinely hypervigilant. He had efforts to avoid thoughts, feelings or conversations about trauma as well as efforts to avoid activities, people or places that aroused recollection of his trauma. He had markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others and a restricted range of affect. He had difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance and exaggerated startle response. He also had anxiety, chronic sleep impairment, suspiciousness and flattened affect as well as irritability, occasional sadness and increasing social isolation. The examiner noted that the Veteran was capable of performing work well and he was performing well in both his college and civilian work. However, the Veteran was quick to become irritable, anxious or withdrawn. In a May 2015 treatment report, a private psychologist noted that the Veteran had intrusive thoughts, poor anger management and irritability. On examination, his appearance was appropriate, his attitude was positive and his motor activity was intact. His affect was distressed and his mood was sad. He had low self-esteem. He was oriented times 3. His memory functions were intact and his cognitive functions were appropriate. His judgement and insight were good and his thought process was normal. He denied suicidal or homicidal ideation. His thought content was normal and there was no evidence of psychosis. The diagnosis was PTSD with delayed depression. The physician noted that the Veteran was experiencing intrusive thoughts, hyperarousal, sleep disturbance, anxiety and irritability that were causing affect distress and impairment. The Veteran underwent a VA examination in August 2016. The examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with reduced reliability and productivity. The Veteran reported having a troubled relationship with his second wife. He was fired from his job as a sheriff’s deputy and was now working as correctional officer. The Veteran reported being angry and sometimes shouting at people which is behavior he also displayed at home with his wife. He also reported not sleeping, being very anxious all of the time, not trusting people and isolating himself at work and home. He had depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in adapting to stressful circumstances, and an inability to maintain effective relationships. 1. Entitlement to a rating in excess of 30 percent for the period prior to August 10, 2016 for PTSD Based on the reported symptomatology of the Veteran’s psychiatric symptoms exhibited by the February 2012 VA examination and May 2015 private treatment report, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 50 percent rating is warranted for the period from October 23, 2012, the initial date of service connection, until August 10, 2016. For the period prior to August 10, 2016, the Veteran’s PTSD symptoms were manifested by anxiety, chronic sleep impairment, suspiciousness and flattened affect as well as irritability, occasional sadness and increasing social isolation. Notably, the February 2012 VA examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. This fits squarely with a 30 percent disability rating under the General Ratings Formula. However, the February 2012 VA examiner also indicated that the Veteran was often sad and anxious and drove as if he were still in Iraq as he was watchful, wary and suspicious as he drove and when he was in all social settings. The examiner also noted that the Veteran was routinely hypervigilant, had anxiety, chronic sleep impairment, suspiciousness and flattened affect as well as irritability, occasional sadness and increasing social isolation. The Veteran was also quick to become irritable, anxious or withdrawn. Additionally, as noted by a subsequent May 2015 private treatment report, the Veteran’s symptomatology had worsened which indicated more moderate symptoms and moderate difficulty in social, occupational, or school functioning. As noted above, the May 2015 private physician indicated that the Veteran was experiencing intrusive thoughts, hyperarousal, sleep disturbance, anxiety and irritability that were causing affect distress and impairment. Accordingly, the Board finds that an initial 50 percent rating is warranted from the Veteran’s effective date of service connection until August 10, 2016 as the Veteran’s PTSD was indicative of reduced reliability and productivity. However, the preponderance of the evidence establishes that the social and occupational impairment from the disability for the period prior to August 10, 2016 had not more nearly approximated the deficiencies in most areas required for a 70 percent rating. In this regard, the evidentiary record was negative for obsessional rituals which interfered with routine activities, speech which was intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting his ability to function independently, spatial disorientation or neglect of personal hygiene. Moreover, the rating criteria for a 70 percent evaluation require that a claimant be unable to establish or maintain social relationships. While the Veteran reported having issues related to his interpersonal relationships, his social impairment more closely contemplates a 50 percent evaluation. Notably, the Veteran reported having irritability with others. However, the Veteran had remained married to his second wife and indicated that he spent his spare time watching television and being with his family. As a result, the Board finds that an inability to establish or maintain social relationships is not demonstrated. Additionally, there were no psychotic symptoms and there was no evidence of delusions. The Veteran’s memory was also intact and was oriented times 3. There also is no indication that the Veteran demonstrated any suicidal or homicidal ideation during this period. Thus, while the record demonstrates that the Veteran did have some social and occupational impairment which impacted his quality of life, the greater weight of evidence demonstrates that it was to a degree less that is contemplated by an initial 50 percent rating. Furthermore, even resolving any reasonable doubt in the Veteran’s favor, the Board finds that he does not meet the requirements for an evaluation greater than the 50 percent schedular rating. While the Veteran had some of the criteria for a 70 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability does not exceed a 50 percent rating. Again, in determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran’s complaints regardless of whether they are listed in the rating criteria, but concludes that the Veteran’s level of social and occupational impairment does not warrant an initial rating in excess of a 50 percent rating for the period prior to August 10, 2016. Accordingly, this evidence demonstrates that prior to the Veteran did not have deficiencies in most of the areas in the criteria for a 70 percent rating nor had he been shown to have most of the symptoms listed as examples in the criteria. As the criteria for the next higher (70 percent) rating for a psychiatric disorder have not been met, it logically follows that criteria for an even higher rating (100 percent) have not been met. There is no showing that the Veteran had gross impairment of thought processes or communication, persistent delusions, exhibited grossly inappropriate behavior; persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, or disorientation to time or place. Thus, the Board finds that the Veteran’s symptoms more closely approximated the criteria for an initial 50 percent disability rating. Thus, for all the foregoing reasons, the Board finds that an initial rating of 50 percent, but no higher, for PTSD for the period prior to August 10, 2016 is warranted. 2. Entitlement to a rating in excess of 70 percent for the period since August 10, 2016 for PTSD After reviewing evidence of record, the Board finds that the assignment of an initial disability rating greater than 70 percent for the Veteran’s service-connected PTSD for the period since August 10, 2016 is not warranted. The Board notes that at no point did any VA examiner or treating physician find that the Veteran’s PTSD caused total occupational and social impairment, as is required for the assignment of a 100 percent rating. In not granting a 100 percent schedular rating for the Veteran’s service-connected PTSD, the Board is not minimizing the severity of the Veteran’s symptoms. The Board notes that the evidence demonstrates that the Veteran experienced significant social impairment as a result of his PTSD. Notably, the Veteran reported social impairment and had a troubled relationship with his second wife. However, as noted above, the maximum rating of 100 percent requires total occupational and social impairment. The VA treatment records and VA examination show no gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of own relatives, own occupation, or own name. Although the Veteran had been fired from a job, he had since obtained new employment as a correctional officer. The Board also notes that the August 2016 VA examiner indicated that the Veteran experienced depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in adapting to stressful circumstances, and an inability to maintain effective relationships. However, the examiner also noted that the Veteran’s attention was intact and he was oriented. The Veteran also did not have inappropriate behavior and did not have obsessive or ritualistic behavior. The Board also notes that the December 2016 VA examiner specifically described the Veteran’s symptoms as occupational and social impairment with reduced reliability and productivity, which fits squarely for the criteria for a 50 percent evaluation under the General Rating Formula. Despite the fact that this description actually corresponds squarely with a lesser disability rating, the Board will still assign the current 70 percent disability rating for PTSD for the period since August 10, 2016. However, a rating in excess of 70 percent is clearly not available based on these findings. Thus, for all the foregoing reasons, the Board finds that an initial rating in excess of 70 percent for the period since August 10, 2016 for PTSD is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel