Citation Nr: 18146075 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-00 626 DATE: October 30, 2018 ORDER Entitlement to an initial evaluation of 50 percent, and no higher, for PTSD is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s PTSD causes dysfunction that most nearly approximates 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation of 50 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC or Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from July 1965 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously considered and remanded the claim for an increased evaluation for PTSD in an October 2017 decision for further evidentiary development. Entitlement to an initial evaluation in excess of 30 percent for PTSD 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 (2012); 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 (2016). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. 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. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran’s PTSD has been assigned a 30 percent evaluation pursuant to Diagnostic Code 9411, which is part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent evaluation is warranted where the disorder is manifested by 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent is assigned under the General Rating Formula when the disability 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- and long-term memory for example, 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. Id. A 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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; and an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. 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, 117 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). In determining the appropriateness of the evaluations assigned to the Veteran’s disability, the Global Assessment of Functioning (GAF) scores assigned by medical providers will be discussed. However, while GAF scores are probative of the Veteran’s level of impairment, they are not to be viewed outside of the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. A GAF score of 31 to 40 indicates 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 younger children, is defiant at home, and is failing at school). A GAF score of 41-50 contemplates 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 DSM-IV at 44-47. A GAF score of 51-60 contemplates 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). A GAF score of 61-70 contemplates 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, has some meaningful interpersonal relationships. Id. The Veteran and his spouse have repeatedly contended that an evaluation in excess of 30 percent has been warranted for the Veteran’s PTSD for the entire period currently on appeal. The primary symptoms that each report appear to relate to the Veteran’s PTSD-related sleep difficulties and what they describe as a severe difficulty in the Veteran’s social functioning. For instance, at an October 2009 VA psychological examination, the Veteran reported a good relationship with his biological family, but stated that he no longer was in contact with his children, had no friends with whom he socialized, and did not leave the house to attend any activities. In a statement received in June 2010 from the Veteran’s spouse, she explained that the Veteran was emotionally frigid, avoided people as much as possible including crowds, and angered quite easily. She provided an additional statement the following month in which she elaborated on the Veteran’s psychological symptoms, stating that the Veteran experienced panic attacks when relatives came to visit and became irritable, depressed, anxious, confused, and angry. She also noted that the Veteran had significant and frequent nightmares and had at times inadvertently choked the family dog who sometimes shared the bed while asleep. The Veteran’s spouse noted further that he never completed any projects he began at work, could not handle the responsibility of maintaining finances, and was mentally disabled from working. At the August 2016 Board hearing, the Veteran and his spouse largely reiterated their reports of the type and frequency of psychological symptoms that the Veteran had been experiencing. The Veteran indicated that he continued to experience ongoing nightmares and was able to sleep for only two hours at a time. Although he did not describe highs or lows in his symptoms, he again noted that he hardly ever left the house, repeatedly locked up the house and ensured that his home was secured, and had difficulty dealing with crowds. The Veteran’s spouse noted that the Veteran also forgot information she had told him, became nervous when visitors came to their home, and bit his fingers when visitors were around, which made them uncomfortable. In November 2017, the Veteran’s spouse submitted an additional statement in which she estimated that the Veteran was 98 percent unable to function socially and could not be intimate with her or connect emotionally with others. More recently, both the Veteran and his wife submitted statements received in September 2018 that again reiterated their earlier contentions regarding the severity of the Veteran’s symptoms. The Veteran reported that he had extreme anxiety and restlessness that kept him from relaxing in addition to panic attacks when he was in large crowds or during rain storms. He also explained that he had difficulty making decisions, a lack of motivation, and preferred to be alone. The Veteran’s spouse also reported observing the Veteran’s paranoia and panic attacks that she estimated occurred at least two times per week. She also noted that the Veteran had significant problems with his hygiene, with several teeth having rotted and infrequent bathing and grooming habits. The Veteran and his spouse are certainly competent to comment on the observable symptoms of social dysfunction, panic attacks, paranoia, disordered sleeping, and poor grooming that they have reported in the statements described above and elsewhere in the claims file. The Board also does not doubt the sincerity of their beliefs and their statements are therefore entitled to some degree of probative weight. However, this evidence must be evaluated in light of the entirety of the claims file and weighed against the other probative, competent, and credible evidence of record. Despite the reports of severe sleep and social dysfunction, for instance, at many clinical evaluations, the Veteran has exhibited largely intact psychological functioning, with examining clinicians reporting entirely normal objective signs. Notwithstanding the Veteran’s reports of subjective symptoms at the October 2009 VA psychological evaluation, the Veteran demonstrated intact attention, unremarkably thought processes and content, average intelligence, a normal memory, and good impulse control. There were also no reports of problems with activities of daily living. However, the Veteran also had a fearful mood at that examination, a constricted affect, and tense psychomotor activity. Ultimately, the examiner assigned a GAF score of 67 and opined that the Veteran’s psychological symptoms were not severe enough to interfere with occupational and social functioning. At a subsequent VA psychological examination in May 2010, the Veteran also reported somewhat broader social functioning, and noted that he had a pretty good marriage, although he again stated that he was estranged from his children. Clinically, the examiner noted that the Veteran had a clean appearance, unremarkable psychomotor activity, normal speech, an attentive attitude, and intact attention. He also did not have any delusions or abnormal thoughts, but the examiner explained that the Veteran’s insight appeared to have some deficits and stated that he only partially understood his problems. That examiner assigned a GAF score of 65 and suggested a greater level of occupational and social dysfunction than the earlier VA psychological examiner, but suggested that the signs and symptoms of the Veteran’s PTSD were only transient or mild and resulted in decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. Pursuant to the Board’s October 2017 remand, the Veteran attended an additional VA psychological examination in November of that year. Although the Veteran reported a strained relationship with his wife at that time in addition to continued estrangement from his children, he did report some level of social activity, stating that he had one friend and was able to get along with others. The Veteran also reported panic attacks occurring five to six times in the past month that were triggered by being in a store or around people. However, the examiner reported no problems with instrumental activities of daily living such as managing finances, shopping, handling transportation, managing medications, and/or performing housework. The PTSD-related symptoms identified by the examiner were anxiety, chronic sleep impairment, and mild memory loss. Although the Veteran had a dysphoric mood upon examination, he had a full affect, normal speech and thoughts, and had no difficulty in understanding complex commands. He also was noted to be clean, neatly groomed, and casually dressed. Like the May 2010 VA examiner, this psychologist estimated that the Veteran’s psychological disability caused 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. As was the case with the lay statements of the Veteran and his spouse, these examiners are also competent to report on the observable manifestations of the Veteran’s PTSD. They also possess the medical knowledge, training, and experience to describe the limitations of the Veteran’s PTSD in terms of the specific criteria set forth in the General Rating Formula for Mental Disorders. Given that the Board has no reason to doubt the credibility of their statements, the Board finds that their reports represent significant probative evidence in determining the level of occupational and social functioning caused by the Veteran’s PTSD. The consistency of their reports further enhances the probative value of their opinions and suggests that, in fact, the Veteran’s PTSD-related symptoms have been relatively mild in nature. However, when weighed against the routinely inconsistent evidence regarding the Veteran’s psychological functioning identified in his treatment notes and outpatient psychiatric examination reports, the Board finds that the evidence is at least in equipoise with respect to whether the Veteran’s most closely approximate the criteria for a 30 percent evaluation or a 50 percent evaluation in accordance with the General Rating Formula. As noted above, the criteria for a 50 percent evaluation under the Formula are met when occupational and social impairment are due to such symptoms as panic attacks more than once per week, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, flattened affect, abnormal speech, impairment of short and long-term memory, and difficulty in establishing and maintaining effective work and social relationships. Several of these symptoms are identified both in the VA examination reports and in numerous reports of examinations by the Veteran’s treating mental health clinicians at VA facilities. At the recent examination in November 2017, the Veteran himself competently reported experiencing five to six panic attacks per month due to social interaction, which would appear to specifically match the frequency of panic attacks and the difficulty in establishing and maintaining social relationships that are described as signs and symptoms indicative of a 50 percent evaluation. The VA examiners also consistently reported the Veteran’s abnormal mood. Similar yet at times inconsistent reports of abnormal moods and panic attacks appear in his treatment records. At a clinical examination as early as April 2009, the Veteran was observed to have a restricted affect and dysphoric mood with numerous social problems including avoidance of people and places, and screaming and becoming angry over minor problems. At a psychological consultation with a treating VA clinician in May 2010, the Veteran again reported irritability and no social life. Upon examination, he had a blunted affect, and was unshaven with a jittery mood. The Veteran’s judgment at that time was also reported to be no more than fair, and he had halting, and hesitant speech. However, he was also observed to be alert and cooperative with an intact memory and no signs of abnormal motor functioning or suicidal ideation. The Veteran again was noted to have only fair insight and judgment and an abnormal mood with marginal grooming at an August 2011 examination. Notwithstanding his repeated reports of symptoms of anxiety, panic attacks, insomnia, nightmares, the Veteran’s clinical findings were otherwise normal. Interspersed within these abnormalities, however, are other clinical examinations where the Veteran was noted to have entirely normal objective clinical signs, including in July 2009, June 2010, and April 2013. These discrepancies in the objective reports of the Veteran’s psychological functioning present a complex picture that does not appear to uniformly match any of the individual sets of criteria that are set forth in the General Rating Formula for Mental Disorders. The GAF scores that have been assigned to the Veteran appear to be similarly inconsistent. As noted above, the VA psychological examiners from 2009 and 2010 reported scores above 60, which are indicative of only mild symptoms, the Veteran was assigned a GAF score of 50 at a clinical evaluation only two months before the Veteran filed his claim for service connection for PTSD. Another score of 50 was assigned at a May 2010 VA clinical examination and a score of 60 was noted in April 2013, which is indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. Ultimately, the Board finds that the probative, competent, and credible evidence relating to the Veteran’s psychological functioning during the period on appeal is largely inconsistent in nature and appears to include individual pieces of evidence that correspond with the criteria for several different evaluations, as set forth in the General Rating Formula. However, given the repeated and consistent reports of significant abnormal social functioning described by the Veteran and his spouse both in submissions to VA in pursuit of his claim and for treatment purposes at VA medical centers, the Board finds that the Veteran has social impairment that causes difficulty in establishing and maintaining social relationships. Although the Veteran has repeatedly underwent entirely unremarkable clinical examinations, the Veteran’s clinical reports also include numerous notations indicating the Veteran experiences recurrent panic attacks which at times have been noted to occur more frequently than once a week. He also has demonstrated disturbances of motivation and mood and at times only fair judgment or insight. These signs and symptoms appear indicative of a 50 percent evaluation. Notably, the types of signs and symptoms suggestive of a 30 percent evaluation are also prevalent in the record. For instance, the Veteran has repeatedly exhibited at most mild memory loss and chronic sleep impairment. He has also not exhibited any difficulty with the short or long-term memory described by the criteria in the 50 percent rating and has not demonstrated the capacity for the retention of only highly learned material. Given this evidence, the Board finds that the Veteran’s disability picture falls somewhere between the criteria for a 30 percent evaluation and a 50 percent evaluation. Resolving all reasonable doubt in the Veteran’s favor, the Board therefore finds that the criteria for the higher rating have been met in accordance with 38 C.F.R. § 4.7. Although the Veteran’s spouse has contended that a higher evaluation is warranted, including at times suggesting that his psychological symptoms would completely prevent him from working or that he is up to 98 percent disabled in his social functioning, the Board does not find that the evidence demonstrates an evaluation higher than 50 percent is warranted. There are no reports of illogical, obscure, or irrelevant speech, near-continuous panic or depression that interfere with the Veteran’s ability to function independently, impaired impulse control, or spatial disorientation. While there are reports of some marginal grooming or hygiene, the Board does not find that the evidence of record indicates that the Veteran has had occupational and social impairment with deficiencies in most areas. In making this determination, the Board has considered a psychiatric social work note from September 2009. In that clinical record, the examining clinician stated that the Veteran “reported suicidal or homicidal ideation.” However, this appears to be the only instance at any point during the period on appeal that the Veteran was ever noted to endorse suicidal or homicidal ideation. At numerous other clinical evaluations and at each of the VA psychological examinations, the Veteran denied any symptoms of suicidal ideation. Indeed, it appears that that September 2009 reference appears to have potentially been a typographical error. Immediately after the reports of the Veteran’s suicidal or homicidal ideation, the examining social worker explained that the Veteran “is not considered as an imminent threat to self or others” and the treatment note contains no other reference to those serious symptoms. As such, the Board finds that this clinical record appears to relate to at most one possible instance of isolated suicidal or homicidal ideation and does not represent significant probative evidence to warrant en evaluation greater than 50 percent. For the reasons stated above, the Board therefore finds that the criteria for a 50 percent evaluation for PTSD, and no higher, have been met for the entire period currently on appeal. REASONS FOR REMAND Entitlement to a total disability rating based upon individual unemployability is remanded. Although not certified as an issue on appeal, a request for entitlement to a TDIU can be presumed in all claims for an increase in a disability rating when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the holding in Rice and a July 2010 statement from the Veteran’s spouse in which it is contended that the Veteran would not be able to handle working due to his psychological symptoms, the Board has amended the issues on appeal to include the issue of entitlement to a TDIU The matter is REMANDED for the following action: (Continued on the next page)   1. Send the Veteran appropriate notice with respect to his claim for a TDIU and request that he complete a VA Form 21-8940. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel