Citation Nr: 18144220 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 12-04 592 DATE: October 25, 2018 ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD), with unspecified depressive disorder and alcohol and substance abuse disorders, prior to April 11, 2016, and from June 1, 2016, is denied. FINDINGS OF FACT 1. Prior to April 11, 2016, and from June 1, 2016, the Veteran’s PTSD has been manifested by symptoms such as depression, anxiety, sleep disturbances, irritability, passive suicidal ideation without plan or intent, some difficulty with concentration and memory, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. 2. Throughout the appeal period, the Veteran’s PTSD has not caused, or more nearly approximated, total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 70 percent for PTSD prior to April 11, 2016, and from June 1, 2016, have not been met. 38 U.S.C §§ 1101, 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1967 to January 1969 and from December 1969 to June 1972. This matter comes to the Board of Veterans’ Appeals (Board) from a February 2011 rating decision, which granted service connection for PTSD, evaluated at 30 percent, effective October 7, 2009. In December 2014, the Board remanded the case so that the Veteran could be afforded a Board hearing. In March 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In May 2015, the Board remanded the case for additional development, to include obtaining a VA examination to assess the current severity of the Veteran’s PTSD. In a September 2016 rating decision, the RO granted the Veteran a temporary 100 percent hospitalization rating, effective April 11, 2016 to June 1, 2016, at which time a 30 percent rating was continued. As a 100 percent rating was established for this time frame, the Board will not review this staged rating. In a July 2017 rating decision, the RO granted the Veteran an increased initial rating for PTSD, evaluated at 70 percent disabling prior to April 11, 2016, and from June 1, 2016. As this does not represent a total grant of benefits sought on appeal, the claim remains before the Board. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities was adjudicated as part and parcel of the Veteran’s increased rating claim, and was granted effective October 7, 2009, representing a complete grant of the issue on appeal. After the most recent supplemental statement of the case was issued in July 2017, additional VA treatment records were associated with the claims file. In October 2018, the Veteran’s representative waived initial consideration of this evidence by the AOJ. See 38 C.F.R. § 20.1304 (2017). Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to April 11, 2016, and from June 1, 2016. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2017); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that a higher rating is warranted for his service-connected PTSD with alcohol and substance use disorders. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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(a) (2017). When evaluating the level of disability from a mental disorder, VA also 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(b). The Veteran’s PTSD is currently evaluated as 70 percent disabling prior to April 11, 2016, and from June 1, 2016, under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411 (2017). Under the applicable rating criteria, a 70 percent disability rating is warranted for 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); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability rating is warranted 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran’s appeal to the Board in May 2012; therefore, the claim is governed by DSM IV. However, the amended regulations made no change to the symptomatology assigned to each of the disability ratings provided for in the General Rating Formula for Mental Disorders. The Board notes that the use of the GAF scale has been abandoned in the DSM 5 because of, among other reasons, “its conceptual lack of clarity” and “questionable psychometrics in routine practice.” See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). However, this claim is governed by DSM-IV, and it was in use during portions of the appeal period when relevant medical entries of record were made. Therefore, the GAF scores assigned remain relevant for consideration in this appeal. A GAF score of 61 to 70 reflects 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, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflects moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or 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). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). However, the rating schedule does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule. Rather, they are but one factor to be considered in conjunction with all the other evidence of record. Turning to the evidence of record, a January 2011 VA examination report reflects that the Veteran reported feelings of depression and anxiety, but that it was hard to talk about his experiences in Vietnam, as others did not know what he went through. The Veteran reported two marriages that ended in divorce, that he had a good relationship with his two daughters from his first marriage, but denied having close friends and reported spending approximately 20 years in prison due to his problem with drugs and alcohol. The Veteran appeared clean, with normal affect and anxious mood. Psychomotor activity and speech were unremarkable, and the Veteran was cooperative with the examiner. The Veteran was easily distracted, but oriented to person, time, and place. Remote and immediate memory were normal, but recent memory was mildly impaired. Thought processes and content were unremarkable and the Veteran denied panic attacks, hallucinations, delusions, and suicidal and homicidal thoughts. The Veteran reported sleep disturbances. The Veteran understood that he had a problem and the outcomes of his behavior. Impulse control was fair and there was no evidence of inappropriate or obsessive behavior. The examiner diagnosed the Veteran with PTSD, with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, but generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. The examiner noted that the Veteran’s symptoms were more severe during the first 10 years after his return from Vietnam, but that over the years he had developing coping strategies. The examiner found symptoms of difficulty in trusting others, irritability, tendency to isolate, legal problems related to drugs, severe conflicts in past relationships, to include domestic violence, and that the Veteran’s symptoms were exacerbated by period of relapse. The examiner further opined that it appeared at least as likely as not that the Veteran’s chemical dependency problems were initially caused by or made worse by his PTSD. July 2014, November 2014, and February 2015 VA mental health treatment records reflect that the Veteran denied depression or anxiety, but reported frequent nightmares and the use of alcohol and other substances. The Veteran appeared with adequate grooming and hygiene. He was alert and oriented, with appropriate behavior, and good eye contact. He could appear guarded, but was cooperative. Mood was reported as euthymic, neutral, and okay, and affect bright, congruent, and flat. Speech was normal, thought processes logical, orientation unimpaired, and memory was good. Insight was fair, but judgment ranged from poor to fair. He denied suicidal or homicidal ideation, but was noted to have a legal history of violence against others. In June 2015, the Veteran indicated that he had recently loss a friend, which led him to passive thoughts of suicide with no intent or plan. He reported flashbacks and suspiciousness, and was upset with his housing situation. A September 2015 VA examination report reflects diagnoses of PTSD, unspecified depressive disorder, severe alcohol use disorder, and moderate cocaine use disorder, with differentiation of symptoms attributable to each diagnosis not possible. The examiner opined that the Veteran’s depression and alcohol and substance abuse issues were likely reactions to chronic PTSD symptoms. The Veteran indicated that he was not married and had not had a relationship in four years. He reported a good relationship with one daughter, but that he hardly talked to his other daughter. He denied any communication with his four siblings and having any close friends. He reported that he liked to bike and jog, and that he watched tv, but reading was difficult as it was hard to focus. He indicated that he had not worked since 1998, as he could not focus and did not like to be told what to do. The Veteran reported being sad most days, as he lived by himself and was isolative, but that he walked and biked to cope with his depression. The Veteran reported elevated anxiety and irritability a few days a week, and that unexpected sounds would trigger his anxiety and he avoided crowds and would change the television channels if something upsetting came on. The Veteran reported that sounds would wake him up three or four times a night, and he had paranoid thoughts that people from Vietnam were after him. Upon examination, the Veteran appeared pleasant, with stable affect. Speech was of average rate, tone, and prosody. The Veteran was cooperative, and denied suicidal and homicidal ideations and visual and auditory hallucinations. The examiner found symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner indicated that the Veteran’s symptoms resulted in 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. March, May and July 2016 records reflect that the Veteran sought treatment for his anxiety. He reported difficulty falling and staying asleep, with nightmares two to three times a week. His mood was depressed and he endorsed crying spells, low motivation, intrusive thoughts and feelings of sadness. He reported alcohol and substance abuse. He reported fleeting thoughts of suicide, but had no plan or intent to hurt himself. He denied paranoia, hallucinations, manic or hypomanic symptoms, and cravings for drugs and alcohol. Upon examination, he appeared with appropriate grooming and hygiene. Gait and stance were normal, with no abnormal movements or mannerisms. He was alert and oriented, with intact recent and remote memory. At times, the Veteran could be non-cooperative, easily irritated, and resistant to give his history, and his speech could be loud and agitated. His mood was depressed and angry, and affect restricted, but thought processes were linear, logical, and goal-directed. The Veteran denied suicidal or homicidal ideation, auditory or visual hallucinations, delusions, or obsessions. Insight and judgment ranged from poor to fair. In an undated letter received in in August 2016, the Veteran’s daughter indicated that she had witnessed the Veteran’s symptoms for a long time, and that he was only recently diagnosed with PTSD. She reported that the Veteran used drugs and alcohol to handle his PTSD symptoms, which contributed to his many years in prison. She reported that she had witnessed and had been woken up by the Veteran’s nightmares, but that in the morning, the Veteran would not remember anything. She reported that the Veteran’s condition had affected their relationship negatively. In August 2016, the Veteran reported a history of wanting to take his life, but denied suicide attempts or having a plan. He reported sleeping three to five hours a night, but that his concentration was poor. He appeared casually dressed with good hygiene. Eye contact was good, speech was normal, and psychomotor activity was normal. Affect ranged from full to flat and mood congruent. The Veteran became tense while discussing his substance abuse and military history. Speech was regular, although the Veteran was somewhat hypertalkative. Thought processes were linear and goal-oriented, although occasionally circumstantial. Thought content was negative for suicidal or homicidal ideation, delusions, or hallucinations. The examiner noted diagnoses of recurrent major depressive disorder in full remission, PTSD, and substance and alcohol use disorders with last use the month before. The examiner assigned a GAF score of 60. In June and September 2017, the Veteran appeared appropriately groomed and dressed. He was calm and cooperative, with good eye contact and a calm affect. He was oriented to person, place, time, and situation, with intact memory and the examiner found him to be a good historian. He expressed insight about the negative impact of alcohol and substances in his life and in the lives of his loved ones, and considered one of his daughters to be his best social support, but the Veteran was noted to have an extensive history of unstable relationships. He denied past or present suicidal or homicidal ideation. In February, March, and April 2018, the Veteran reported suicidal ideation without intent to act and occasionally feeling irritable. He reported that he was now married and traveling with his wife. The Veteran was cooperative, appeared healthy and in no acute distress, with adequate grooming and hygiene. Mood was stable and affect euthymic. Speech was normal, although the Veteran’s tone was at times loud and agitated. Thought processes were normal, and the Veteran denied suicidal and homicidal ideations and hallucinations. The Veteran was alert and oriented and memory intact, but insight and judgment were poor. Based upon the evidence of record, including that specifically discussed above, the Board concludes that an increased disability rating in excess of 70 percent prior to April 11, 2016, and from June 1, 2016, is not warranted. The evidence of record reflects that the Veteran’s PTSD with alcohol and substance abuse has been manifested by symptoms such as depression, anxiety, sleep disturbances, irritability, passive suicidal ideation without plan or intent, some difficulty with concentration and memory, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting, resulting in 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 RO has assigned the Veteran a 70 percent rating prior to April 11, 2016 and from June 1, 2016, and the Board will not disturb that rating. The Board notes that thoughts of suicidal ideation are only considered in a 70 percent disability evaluation. There are no analogues at the lower evaluation levels. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 -21 (2017) (precedential panel decision). Thus, under the General Formula for Rating Mental Disorders at 38 C.F.R. § 4.130, “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 with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. at 20 (2017). Evidence of more than thought or thoughts of ending one’s life to establish the symptom of suicidal ideation, is not required. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm in order to establish the criteria of suicidal ideation. Bankhead, 29 Vet. App. 20-21. However, a maximum 100 percent rating is not warranted unless 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. During this time, the Veteran has maintained adequate grooming and hygiene, has been alert and oriented, and has denied hallucinations and delusions. While he reported problems with concentration and memory, there is no indication that he has been unable to remember his own name, those of his family, or his occupation. While he reported passive suicidal ideation and there was a reported legal history of violence towards others, there is no indication that he has been a persistent danger to himself or others. The Board has also considered the Veteran’s contentions regarding the severity of his PTSD. The Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Board has considered the Veteran’s contentions that his PTSD is worse than the assigned ratings and the objective medical evidence of record, but ultimately finds that the symptomatology associated with the Veteran’s PTSD more nearly approximates the schedular criteria associated with the ratings currently assigned. Therefore, the Board finds that the Veteran’s manifested PTSD symptoms are most closely approximated by the currently assigned 70 percent disability rating. Importantly, he has not shown that his psychiatric symptoms were of similar severity, frequency, and duration in order to warrant a maximum disability rating prior to April 11, 2016, or from June 1, 2016. Thus, the Board finds that a maximum 100 percent rating for the Veteran’s PTSD prior to April 11, 2016, and from June 1, 2016, is not warranted. The preponderance of evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim must therefore be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel