Citation Nr: 18142140 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-20 926 DATE: October 12, 2018 ORDER Entitlement to an initial 70 percent rating for depressive disorder (claimed as posttraumatic stress disorder (PTSD) but no higher, is granted. FINDING OF FACT With reasonable doubt resolved in favor of the Veteran, his PTSD symptoms have more nearly approximated occupational and social impairment with deficiencies in most areas, but not total impairment, for the entire period on appeal. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for PTSD have been met for the entire period on appeal. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. 1. Increased Rating for Depressive disorder Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating 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 percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2017). When rating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating 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. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (2017). Under the Diagnostic and Statistical Manual for Mental Disorders (4th ed.) (DSM-IV), the GAF score was previously described for VA purposes as a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores ranging between 61 to 70 indicated 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 indicate that the individual is functioning “pretty well,” and has some meaningful interpersonal relationships. Scores between 51 to 60 indicate 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). Diagnostic Code 9411 governs ratings for depressive disorders and PTSD. A 10 percent rating is assigned when a veteran’s PTSD causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned when a veteran’s PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to 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 is assigned when a veteran’s PTSD causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned when a veteran’s PTSD causes 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 worklike setting); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran’s PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the term ‘such as’ in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase ‘such symptoms as,’ followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “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.” It was also noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. The Veteran contends that his depressive disorder is more severe than represented by the 50 percent rating. The February 2015 DBQ diagnosed the Veteran with an unspecified depressive disorder. The Veteran reported symptoms of depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The Veteran noted that he enjoyed pleasurable activities, such as limited shooting of his crossbow, playing golf and fishing, despite physical limitations. The Veteran indicated that he had daily feelings of worthlessness and ongoing problems with concentration. Additionally, the Veteran noted that he experienced occasional auditory hallucinations of hearing a music box or hearing the cupboard doors close, perhaps every few months. Although he denied thoughts at the time of the examination, the Veteran endorsed a history of suicidal with his most recent thoughts in June 2014. He added that he had a remote history of a suicide attempt. The August 2016 DBQ provided a probative evaluation of the Veteran’s current and remote psychiatric history. The August 2016 examiner indicated that she had reviewed the claims file as well as conducted an interview of the Veteran. Additionally, the Veteran endorsed depressed mood, suspiciousness, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. He also reported thinking about injury to self or others. He said that he had occasional thoughts that he would be better off dead but that he does not “go out of his way to seek it.” The examiner noted that due to reported feelings of hopelessness, medical problems, a history of suicide attempts, and advancing age, the Veteran’s static variables increased his risk for suicide and that he should be monitored for lethality on an ongoing basis. The Veteran reported that he had no children and that he has been married five times and that he has been married to his current wife for “10 hard years.” The Veteran noted that he “thought he had friends but I found out they’re basically acquaintances, so I wrote them off. There’s no communication.” The Board finds, after a careful review of all pertinent evidence and with resolution of reasonable doubt in the favor of the Veteran, that his depressive disorder symptomatology warrants a 70 percent evaluation for the period on appeal. 38 C.F.R. § 4.7. In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). The Court stated that the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). As indicated above, the Veteran has provided a detailed history of suicidal ideation that has been both remote and current. The August 2016 examiner even went as far to comment on the Veteran’s threat risk and the need to actively monitor him for lethality. Outside his suicide ideation there is also evidence the Veteran has difficulty in relationships, having only acquaintances and a strained relationship with his wife and occasional auditory hallucinations of hearing a music box or hearing the cupboard doors close. However, the totality of the evidence fails to support the assignment of a 100 percent rating for the Veteran’s psychiatric disorder. Total occupational and social impairment due to the psychiatric disorder has not been demonstrated. There is no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, danger of hurting self or others, intermittent inability to perform activities of living, disorientation to time or place, or memory loss for names of close relatives, occupation, or own name. The fact that he maintains a marriage, albeit considerably strained, belies the notion of there being total social impairment. Further, although he has been unemployed for approximately 10 years, there are multiple records, to includes reports by the Veteran, that his unemployment resulted from a physical injury for with he collected Workers Compensation. Therefore, entitlement to an initial 70 percent rating, but no higher, is warranted. In reaching this decision, the Board has considered the lay evidence. The Board is fully aware that the Veteran is competent to report his symptoms. The medical findings discussed directly address the Veteran’s contentions and the criteria under which the Veteran’s psychiatric disability is evaluated. The medical evidence indicates the Veteran has had no more than severe difficulty in social and occupational functioning. Such is consistent with the 70 percent disability ratings assigned. Consideration has also been given the question of the Veteran’s entitlement to a total disability based on individual unemployability (TDIU), as a claim for increased compensation can encompass a claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). The Veteran is presently unemployed and meets the schedular requirements for a TDIU. However, he has not asserted that his service connected psychiatric disability renders him unemployable. He has consistently reported that he stopped working as a long-haul truck driver due to physical injury. He states that he collected Workers Compensation and did attempt to return to the work force. There has also been no suggestion in the psychiatric evaluations that his psychiatric disorder precludes employment. According, the Board finds that TDIU is not part of the Veteran’s claim for an increased rating. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel