Citation Nr: 18144391 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 10-39 714 DATE: October 25, 2018 ORDER Entitlement to an initial disability rating of 100 percent for posttraumatic stress disorder (PTSD) is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT The evidence is in relative equipoise that the Veteran’s PTSD causes results in total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating for 100 percent for PTSD are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from March 1967 to January 1970. This issue comes before the Board of Veterans’ Appeals (Board) from a July 2009 rating decision. In January 2012, the Veteran and M.C. testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this case in November 2013 for additional development. In September 2016 the Board denied the Veteran’s claim. In April 2018 the United State Court of Appeals for Veterans Claims (Court) vacated the September 2016 Board decision and remanded the issue back to the Board. Entitlement to an initial disability rating in excess of 70 percent for PTSD The Veteran seeks a higher rating for his service-connected PTSD. As previously noted, the record shows that the Veteran is appealing the initial rating assigned from a grant of service connection for PTSD in July 2009. He is presently rated as 70 percent for his PTSD, effective December 12, 2008, the date of his claim. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the provision of 38 C.F.R. § 4.14 prohibiting pyramiding, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. The Board notes that the newer Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) has been released, and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. However, since much of the evidence relevant to this claim was obtained during the time period that the DSM-IV was in effect, and the DSM-5 is not applicable to claims (such as the instant claim) certified to the Board before August 14, 2014, the Board will still consider the assigned GAF scores as relevant to this appeal. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. The Board notes that an examiner’s classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. GAF scores ranging between 41 and 50 are assigned where there are 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). GAF scores ranging between 51 and 60 are assigned when there are 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). See American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). In addressing whether the Veteran is entitled to a higher initial rating, the Board initially notes that the severity of the Veteran’s PTSD has been relatively stable throughout the appeal. Therefore, applying staged ratings, i.e., different ratings for different periods of time, for the Veteran’s PTSD is inappropriate. The Veteran underwent a VA mental health examination in June 2009. During the examination the Veteran reported he had been married five times. The Veteran stated that he had four children and he did not have a relationship with the two eldest. The Veteran described his marriage with his current wife as pretty good. The Veteran stated he had golf buddies and he played golf with them about twice a month. The Veteran noted that he had difficulties with irritability and therefore avoided being around people. He noted that he had been told by several co-workers he was cold. The Veteran reported he had a DUI in 2007. Upon examination the Veteran was neatly groomed and appropriately dressed. The Veteran had an unremarkable psychomotor activity, spontaneous speech, cooperative attitude, appropriate affect, an anxious depressed and somewhat irritable mood, unrankable thought process and connect, no delusions, oriented to person place and time, The Veteran did not have any hallucinations, inappropriate behaviour, obsessive or ritualistic behavior. The Veteran had suicidal thoughts, the examiner noted the Veteran reported that once or twice a month he would have thoughts of suicide, but he did not think he would ever act upon these thoughts. The Veteran had good impulse control and no episodes of violence. The examiner noted that the Veteran had the ability to maintain minimum personal hygiene and had no problem with activities of daily living. The Veteran had a normal remote, recent. and intermediate memory. The Veteran reported that he worked construction for eight years but was laid off in February 2009 due to the economy. The Veteran reported that he would soon begin a new construction job. Prior to his construction career the Veteran worked as a computer project manager for twenty-five years. The examiner stated the Veteran’s GAF was 65. The examiner stated that there was not total occupational and social impairment due to mental disorders signs and symptoms. The examiner found deficiencies in thinking, with intrusive memories of combat and suicidal ideation, family relations, noting that the Veteran was married five times, and mood due to his depression. In December 2013, the Veteran underwent another VA examination. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. During the examination the Veteran reported that he had been married five times and that he was legally separated from his fifth wife in April 2013. The Veteran reported that he had minimal contact with his two oldest children and that he was close to his two younger daughters. The Veteran stated that he played golf with his friends four times a week. The Veteran described golf as his therapy. The Veteran stated he only socialized with his golf friends. The Veteran reported that he worked in the computer industry for ten years and the construction industry for five years. The Veteran stated that he had worked in twenty-one jobs over the past forty years. The Veteran was unemployed and stated his unemployment caused increased financial and marital stress. The Veteran reported he was arrested for domestic violence in July 2013. Upon examination, the Veteran appeared euthymic, and described his mood as up and down. The Veteran had good recall, recent, and remote memory. The Veteran had a good concentration, with orientation within normal limitations. The Veteran was neatly casually dressed and groomed. The Veteran’s speech was within normal limits, his attitude was polite and cooperative, and his thought content and process was within normal limits. The Veteran’s psychomotor activity was within normal limits, he denied hallucinations or delusions, had adequate judgement and insight, and denied suicidal and homicidal ideations, intent, and/or plan. The examiner stated that the Veteran appeared to demonstrate moderate-severe occupational and social impairment with decrease in work efficiency and inability to perform occupational tasks. From the Veteran’s history, he exhibited significant impairment in family role function and social interpersonal relationships. The examiner noted that due to the Veteran’s low frustration tolerance and difficulty getting along with others associated with his PTSD the Veteran could not serve in any position requiring frequent or prolong contact with the general public. The examiner noted the Veteran’s GAF score was 50. In December 2014, the Veteran underwent another VA mental health examination. The examiner found the Veteran had occupational and social impairment with reduced reliability and productivity. During the examination the Veteran reported that he lived with his 92-year-old mother. The Veteran stated that he was divorced from his fifth wife. The Veteran reported that he was dating someone and that they were just like good friends. The Veteran stated he spent his time volunteering with his local golf club. The Veteran stated he spent his time taking care of his mother and watching television at home. The Veteran stated he had a positive relationship with his four children. The Veteran reported he had not worked since 2009. He stated he had difficulty finding work due to his legal history of a DUI conviction. The Veteran indicated he still had blackouts from alcohol. He stated that he had to change companies due to contract work and economic reasons. Prior to his construction job, the Veteran stated he sold computers for ten years with the same company. The Veteran noted that it was a wonderful place to work, the people were nice and understanding but he was laid off due to the company being bought. The Veteran noted that he lasted at the company until the end of the layoffs because he was good at getting new business. The examiner found the Veteran was oriented to all spheres, with affect congruent with stated mood and symptoms. The Veteran was relatively calm and responsive with speech that was normal rhythm and content. The Veteran maintained focus and responded appropriately to questions. The examiner found no evidence of a formal thought disorder, with insight and judgment grossly intact. The Veteran denied suicidal ideation, planning and intent. The examiner opined the Veteran was experiencing moderate symptom severity with moderate impairments of social and occupational functioning. Specifically, the Veteran’s symptoms of social withdrawal, poor concentration related to combat ruminations, irritability, hypervigilance, and poor sleep were contributing to moderate impairment in physical and sedentary occupational functioning. In May 2017, the Veteran underwent another VA examination. The examiner found that the Veteran’s occupational and social impairment was productive of reduced reliability and productivity. The Veteran reported living with his daughter and he stated he had a good relationship with her. The Veteran was divorced and not currently in a relationship. He reported spending time volunteering with his local golf club and he enjoyed it, noting it was good therapy. The Veteran stated he enjoyed playing golf but a physical ailment reduced the amount he played. The Veteran also enjoyed reading and watching sports. The Veteran stated he had a good friend who was a snowbird. The Veteran denied any other friends. The Veteran stated he did not socialize much. The Veteran stated that he had an iffy relationship with his son, and a positive relationship with the daughter he did not live with. The Veteran stated he had a grandson but had no relationship with him. The Veteran stated he could not work and was unemployable. Upon examination the Veteran was oriented to person, place and time. He was alert, appropriately groomed and attired. The Veteran had good eye contact and speech was within normal limits. The Veteran was unable to spell world backwards. The Veteran had psychomotor behavior within normal limits, had no delusional mentation was noted, and his thought process was goal-directed and linear. The Veteran’s mood was euthymic and his affect was congruent ideation appropriate to situation. The Veteran did not report nor was there evidence of suicidal or homicidal ideation. The Veteran’s memory was grossly intact, with adequate insight and judgment. The Veteran denied perceptual disturbances. In July 2014, the Veteran’s mother submitted a statement. The Veteran’s mother stated that the Veteran should be rated 100 percent because of his psychiatric impairment. She noted that he had twenty different jobs, had five marriages, could not properly support himself, and had to depend on others for his care. The Veteran testified in a January 2012 Board hearing. The Veteran stated that he only had one-on-one therapy because he does not react well in group therapy. The Veteran stated that he had to move because there was a couple of times where he stated he would run and jump off the balcony. The Veteran stated that sometimes he had visions of things that were not there. The Veteran stated that he could not find work because of his DUI. He stated that he could not keep his job because of outbursts at work. The Veteran stated he visualizes how he was going to die, which involved his service in the Republic of Vietnam. The Veteran stated he had rituals involving checking locks on the doors and windows. The Veteran stated that he does not socialize with anyone outside of his family. The Veteran’s wife testified at the January 2012 Board hearing. The Veteran’s wife stated that she and the Veteran have no relationship. She stated that the Veteran was no longer intimate. The Veteran’s wife stated she had to help him brush his three bridges for his teeth. The Veteran’s wife stated that the Veteran had not showered for three days. She stated that the Veteran would have a drink every night. The Veteran’s wife stated that the Veteran did not have any friends. In reviewing the evidence of record, the Veteran has significant deficiencies as a result of his PTSD, some of which support the current 70 percent rating and some of which are representative of the 100 percent disability rating. The Board also notes that there are some inconsistencies in the evidence regarding the severity of the Veteran’s PTSD particularly when the lay evidence and testimony is contrasted with some of the clinical findings and the statements of the Veteran on examination regarding the level of his functioning. As noted above, a 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Socially, the Veteran has significant problems with personal relationships as manifested by his multiple marriages, domestic violence conviction, strained relationship with his children, and alcohol abuse. This is contrasted with reports that he reportedly played golf on a regular basis with a group of men as well as volunteered at his golf club. The Veteran cared for his mother while she was alive and since moving in with his daughter had a good relationship with her. The evidence demonstrates that the Veteran has a limited social life, however, he had a good relationship with at least one of his daughters and had a friend who is a snowbird, along with his volunteer work at his golf club. However, the Veteran did testify that he did not socialize with anyone outside of his family. The Veteran’s domestic abuse against his former wife and the evidence indicating that he stated his anger caused him to want to commit violence demonstrates peristent danger of hurting others. The evidence indicates that the Veteran considered suicide on multiple occasions and on one occasion had a gun in his hand and shot a bullet. VA treatment records and the June 2009 examination report note that the Veteran contemplated suicide due to depression. The Veteran does have difficulty with his personal hygiene as reported with the need to be reminded to brush his bridges and to shower. However, VA examination reports and treatment records consistently reported that the Veteran was adequately groomed and dressed perhaps due to the assistance of others. The Veteran’s wife testified that they cleaned his bridges together indicating that the Veteran perhaps had the ability to maintain hygiene, but was unable to perform such acts by himself due to his PTSD symptoms. Occupationally, while the Veteran’s occupational prospects are limited due to his PTSD symptoms, the probative evidence shows that he left his last position of employment in 2009 due to lack of work, rather than his PTSD symptoms. While he noted on a May 2014 TDIU claim that he stopped working due to his PTSD, he noted on the December 2014 VA examination report (and previous June 2009 VA examination report) that he stopped working in construction in 2009 due to contract working ended and economic reasons. He noted that in his job prior to construction work, he worked in computers and that it was “…a wonderful place to work. The people were so nice and understanding…” He indicated that he was one of the better salespersons and was good at getting new business. He also noted that he was having trouble finding a job now due to his DUI conviction but that he had difficulty keeping a job due to his PTSD symptoms. The Veteran testified that he had angry outbursts at work, which contributed to losing his construction job. The Veteran’s mother stated that the Veteran had had 21 jobs. Overall, the Board finds the evidence in relative equipoise as to whether the Veteran’s PTSD is productive of total social and occupational impairment. Although VA examiners consistently indicated that the Veteran’s symptoms cause occupational and social impairment with reduced reliability and productivity and not total impairment, the lay and medical evidence taken together raises a reasonable doubt as to the proper evaluation in this case. The evidence demonstrates that the Veteran’s symptoms caused him to persistently place himself and others in danger; there is evidence of delusions and/or hallucinations albeit not persistently shown; there is evidence of grossly inappropriate behavior including drinking to the point of alcoholic blackouts and being jailed for driving under the influence as well evidence of an inability to follow social rules such as walking into homes uninvited; and there is evidence of the intermittent inability to perform activities of daily living, all of which would cause total occupational and social impairment. (Continued on the next page)   Based on the severity of the Veteran’s symptoms, the Board finds that an initial 100 percent schedular rating is appropriate. The evidence, at minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 4.3. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel