Citation Nr: 18147549 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-25 369 DATE: November 5, 2018 ORDER Prior to June 18, 2016, a rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. From June 18, 2016, a rating of 70 percent, but no higher, for PTSD is granted. FINDINGS OF FACT 1. Prior to June 18, 2016, the Veteran’s PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity. 2. From June 18, 2016, the Veteran’s PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas such as work, school, and family relations. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but no higher, for PTSD prior to June 18, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating of 70 percent, but no higher, for PTSD as of June 18, 2016, have been met. 38 U.S.C. §§ 1155, 5107, 5110, 7104; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1988 to March 1998. This rating matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. A rating in excess of 30 percent for posttraumatic stress disorder (PTSD) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all cases, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence that bears on occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Percentage ratings for mental health disabilities are based on the criteria in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Indeed, “VA must engage in a holistic analysis” that assess the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), 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. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board on July 20, 2016. As such, the DSM-5 applies and the GAF scores will not be considered. After review of the relevant medical and lay evidence, the Board finds that the criteria for a rating greater than 30 percent disabling for PTSD have been met. Under General Rating Formula for Mental Disorders, a 30 percent evaluation is warranted for 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), 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). A 50 percent rating is assigned when there is 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 evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. After review of the relevant medical and lay evidence, the Board finds that that a rating of 50 percent is warranted for the period prior to June 18, 2016. A mental health evaluation from March 2015 reflects that the Veteran reported that he enjoyed being outside on his tractor, mowing the lawn, and watching television. It was noted that, among other things, the Veteran had a description of strong reasons for living, future orientation, supportive relationships with family and friends, employment, and positive motivation for treatment. An August 2015 VA PTSD examination reflected the Veteran had symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. The Veteran reported being married and employed. The examiner noted that the he was abusing alcohol and his PTSD symptoms could not be accurately assessed or differentiated from his depression. He denied suicidal or homicidal ideation. His symptoms manifested in occupational and social impairment due to mild or transient symptoms. A September 2015 disability benefits questionnaire (DBQ) reflected the that the Veteran was married, unemployed, and having a chronic problem with alcohol use. The symptoms noted were depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He also had flashbacks and hypervigilance. I The Veteran was afforded another VA examination in March 2016. He reported being married and described the relationship in positive terms, but they slept separately because of nightmares. He also had a loving relationship with his daughter and positive relationships with two step-children. He related that he was a seasonal employee in collections. He denied suicidal or homicidal ideation. There was also no evidence of remote memory impairment. The March 2016 VA examiner noted that the Veteran completed a self-administered forced choice questionnaire that provided an overall estimate of the likelihood that an individual is feigning/exaggerating symptoms of psychiatric or cognitive dysfunction. The examiner noted that the Veteran’s total score was elevated above the recommended cutoff for the identification of likely feigning. The examiner further noted that the Veteran endorsed a number of symptoms and impairment that are highly atypical of individuals who have genuine psychiatric or cognitive disorders. The examiner also related that the Veteran completed an individually administered, two-alternative, forced-choice test of biased responding for PTSD. The VA examiner further noted that the test was specifically standardized on a sample of Veterans applying for financial remuneration for a claim of disability resulting from PTSD. It was also noted that the Veteran’s score was above the cut-off score used to identify individuals from the normative sample who were deemed to be malingering PTSD symptoms. A June 6, 2016 independent VA rating evaluation by G.U., ARNP, notes that the Veteran should be awarding a 100 percent rating based on the benefit of the doubt. The Board has considered the benefit of the doubt in making its decision and has applied where appropriate. It noted that such a determination is within the province of the Board’s fact-finding authority after reviewing the relevant medical and lay evidence. See Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing that the Board had inherent fact-finding ability). Therefore, the Board places little to no weight on the statement by G.U. After review of the relevant medical and lay evidence, the Veteran’s PTSD prior to June 18, 2016, reflected symptomatology more nearly approximated by occupational and social impairment with reduced reliability and productivity that warranted a 50 percent rating. Specifically, he displayed symptoms regarding panic attacks more than once a week with difficulty in establishing and maintaining effective work or social relationships. The Veteran did not exhibit symptomatology more nearly approximating a 70 percent disability rating such as obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; or inability to establish and maintain effective relationships. To the contrary, he described his marriage and relationship with his daughter as positive. Additionally, as noted above, in March 2015, the Veteran had a description of strong reasons for living, future orientation, supportive relationships with family and friends, employment, and positive motivation for treatment. The Board finds such evidence more nearly approximates occupational and social impairment with reduced reliability and productivity as it shows moderate social and occupational impairment. After review of the relevant medical and lay evidence, the Board finds that that a rating of 70 percent is warranted for the period beginning June 18, 2016 it is factually ascertainable that the Veteran’s symptomatology had increased. A June 2016 DBQ indicated that the Veteran reported working full time as a customer service representative for the past two years. He was also married for nine years at that time. He indicated that he had no close friends and reported being estranged from his daughter. He reported suicidal ideation in the past year. Symptoms documented were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, and intermittent inability to perform activities of daily living. Mental status examinations in June, July and September 2018 indicated that he was alert, oriented, coherent, and had a full appropriate affect. He denied hallucinations, delusions, and suicidal or homicidal ideations. It was also noted that he was engaged and actively participated in group therapy. He continued to have a stable marriage during this period. Having reviewed the relevant evidence, and resolving any doubt in favor of the Veteran, the Board finds that a rating of 70 percent is warranted for the period from June 18, 2016. Throughout this period, the weight of the evidence supports a finding that the Veteran’s PTSD manifested as occupational and social impairment with deficiencies in most areas. Significantly, the evidence shows difficulty in adapting to stressful circumstances (including work or a work-like setting), an inability to establish and maintain effective work and social relationships, and suicidal ideation. The Veteran was married, but had no other close friends. The evidence of record, however, does not warrant a rating higher than 70 percent for any portion of the appeal period, as the weight of the evidence fails to show that the Veteran’s PTSD has resulted in total occupational and social impairment. In this regard, the Board notes that there are no reports of gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. The Board further observes that the Veteran has been in a stable marriage for over a decade. Additionally, he continued to maintain employment in a customer service capacity. In this regard, a January 2018 VA treatment report reflects that the Veteran worked two jobs. Thus, the Board finds that the competent and probative evidence weighs against a finding of PTSD that results in total occupational and social impairment. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 70 percent for the Veteran’s PTSD for the period of June 18, 2016 to the present. The benefit of the doubt rule has been applied where appropriate. However, as the preponderance of the evidence is against even higher, staged ratings, the benefit of the doubt rule is not applicable, and higher ratings are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel