Citation Nr: 18150755 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 08-04 981 DATE: November 15, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to August 1, 2009, and in excess of 70 percent thereafter is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 16, 2012 is remanded. FINDINGS OF FACT 1. Prior to August 1, 2009, the Veteran’s PTSD did not manifest to occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; impaired impulse control such as unprovoked irritability with periods of violence; and inability to establish and maintain effective relationships; nor did it manifest to total occupational and social impairment. 2. Since August 1, 2009, the Veteran’s PTSD has not manifested to 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. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD prior to August 1, 2009, and in excess of 70 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1966 to June 1969. He is in receipt of the Combat Action Ribbon. An August 2017 Board decision partially granted the Veteran’s increased rating claim for an initial evaluation in excess of 30 percent prior to August 1, 2009 and in excess of 50 percent thereafter for PTSD, to an initial rating of 50 percent prior to August 1, 2009 and a rating of 70 percent thereafter. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted a Joint Motion for Partial Remand and remanded the claim to the Board for action consistent with the Joint Motion. The Joint Motion directed the Board to clarify whether DSM-IV or DSM-5 was for application in the Veteran’s claim for increased rating for PTSD and to address the issue of entitlement to TDIU as part and parcel of the Veteran’s increased rating claim. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R.§ 4.7. 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. 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). Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD Factual Analysis The Veteran’s service-connected PTSD is rated under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411 (2017). Under DC 9411, a 50 percent disability rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. Id. 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. Additionally, the Global Assessment of Functioning (GAF) score is also considered. GAF 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). 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). The Board notes that the Veteran’s appeal was certified in March 2012 prior to August 4, 2014, and thus the DSM-IV criteria is considered, to include GAF scores. The Veteran’s PTSD is currently rated as 70 percent disabling from August 1, 2009 and as 50 percent disabling prior to August 1, 2009. In December 2006, the Veteran received a VA examination. The Veteran’s affect and mood appeared within normal limits. His affect was broad and mood appeared euthymic. There was no impairment of thought processing or communication, nor were there any delusions or hallucinations. The Veteran maintained appropriate eye contact and behavior, and denied any suicidal or homicidal ideations. The Veteran maintained adequate personal hygiene and basic activities of living. He was orientated and showed no significant impairment of memory or obsessive-compulsive behavior. His speech was within normal limits and there were no panic attacks. The Veteran did not indicate significant levels of depressed mood; however, he did report feelings of sadness and depression whenever he thought about Vietnam, which occurred about once a month for about an hour at a time. He stated during these episodes he felt close to breaking down in tears and it had gotten worse over the last four years. The Veteran reported periodic feelings of anxiety, and often feeling unsafe or insecure. His impulse control appeared adequate. His sleep was poor and he reported learning to be a light sleeper, likely related to his hypervigilance. The Veteran reported having nightmares; however, he said sleeping lighter did help. He reported only getting about two to three hours of sleep, and four to five hours with his pain medications. The examiner noted the Veteran suffered from nightmares, intrusive memories of upsetting wartime events on a daily basis, avoidance of events that remind him of his time in Vietnam, and experiencing survivor’s guilt. The examiner noted the Veteran had limited close relationships with others, although he did appear to get along adequately with his family. The Veteran reported good concentration. The Veteran reported that he did not typically feel too irritable; however, he was often accused of being “grouchy” by others. The Veteran reported significant hypervigilance and a distrust of people. The Veteran reported to function adequately at his employment and in his familial relationships. The Veteran reported having many acquaintances; however, he stated he was not close with many friends. In April 2007, the Veteran was seen at the VA medical center for a PTSD intake. The Veteran’s hygiene was good, and he described his mood as a “just everyday mood.” His affect was appropriate and his psychomotor activity levels were normal. His speech was clear and fluent and his thought processes were logical and goal directed. His intellectual functioning was average and he was judged to be a good historian. His reality testing appeared to be within normal limits. The Veteran did not endorse hallucinations or delusions. His insight and his judgment also seemed good. The Veteran’s PTSD symptoms were noted as experienced or witnessed event that involved actual or threat of death or serious injury to self or others, a response that involved intense fear, helplessness, or horror, recurrent intrusive recollections, recurrent distressing dreams of event, and efforts to avoid thoughts, feelings, and conversations related to trauma or activities, places, or people that arouse recollections of trauma. The Veteran further suffered from difficulty falling or staying asleep, and hypervigilance. The examiner noted the Veteran’s symptoms were more than a month of disturbance and caused social impairment. The Veteran reported chronic nightmares that he often awoke from sweaty and in a state of distress. The Veteran stated he tried to keep busy to avoid intrusive thoughts. He reported disliking crowds and feeling uneasy in public places. He reported rain brought back memories of trauma. He also reported not seeing many members of his immediate family and difficulties with closeness and openness. The Veteran’s GAF score was reported as 56. His strengths were noted as insight problems, leisure skills and interests, a community support network, sense of humor, employment, family/friend support, education, motivations, vocational and occupation skills, and positive marriage. In October 2009, the Veteran was seen at the VA medical center for a PTSD assessment. The Veteran’s grooming and hygiene were good. His mood was depressed and his affect was congruent with his mood. His psychomotor level was normal and his speech was clear and fluent. His thought process was logical and goal directed, as well as his thoughts appeared to be appropriate. His intellectual functioning was average and his immediate and remote memory were grossly intact. His was a good historian and his reality testing was within normal limits. The Veteran did not endorse hallucinations or delusions. His insight seemed good, as well as his judgment. The Veteran reported drinking 3 to 4 beers and 8 shots a day on average. He also reported self-administering prescribed testosterone shots. He reported taking shots of liquor with painkillers to make them work quicker. The Veteran did not see his drinking as problematic. The Veteran did report thoughts of killing himself in the past, but denied any suicide attempts or recent thoughts. The Veteran also denied any homicidal ideation. His GAF score was reported as 50. In July 2010, the Veteran received another VA examination. The Veteran had adequate hygiene and grooming. He was orientated to person, place, and time. His behavior was appropriate and there was no evidence of impairment of thought processing and communication. The Veteran denied having any hallucinations or delusions. He denied ritualistic behavior. His speech was within normal limits and was coherent and logical. His memory was grossly intact. His affect was restricted and his mood was euthymic within normal limits. The Veteran reported having depression and anxiety most days. He denied any suicidal or homicidal ideation. There was no evidence of panic attacks; however, the Veteran did report panic attacks that were described more as angry reactions when he became frustrated or possibly enraged. The Veteran reported when these instances occurred, his face would turn red and he would sweat. He reported getting only 4 hours of sleep every night for the past 10 years, which he aids with medications and alcohol. The Veteran reported experiencing intrusive thoughts related to his military experience. He reported avoidant behavior of people and stores, and being uncomfortable at stop lights due to feeling vulnerable. He reported being watchful and on guard constantly and always keeping his weapon on him. The Veteran reported that on most days his depression was rated as a 9 out of 10 and anxiety as a 9 out of 10. He reported spontaneous crying for 30-minute periods at least once a week and being easily frustrated and angry. His GAF score was reported as 55. In June 2011, the Veteran was seen at the VA medical center for a psychiatry visit. The Veteran’s GAF score was 45. The Veteran reported having little interest or pleasure in doing things several days a week and feeling down, depressed, or hopeless for several days. The Veteran was not deemed a suicide risk and denied thoughts of suicide. In January 2012, the Veteran received a VA examination. The examiner noted the Veteran had a diagnosis of PTSD and major depressive disorder, which was noted as being directly related to his PTSD. The examiner noted these diagnoses were based on the Veteran suffering from depressed mood all days, anhedonia, significant weight loss, insomnia, difficulty concentrating, fatigue, and feelings of worthlessness and excessive guilt. The examiner noted the Veteran’s condition caused occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran had recurrent distressing recollections of the event, including images and thoughts, recurrent distressing dreams of the event, acting or feeling as if the traumatic event were recurring, to include a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, intense psychological distress at exposure to internal or external cues, and physiological reactivity on exposure to internal and external cues. The Veteran also suffered from efforts to avoid activities, places, or people that arouse recollections, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, and a sense of foreshortened future. The Veteran additionally suffered from difficulty falling asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The examiner noted that the PTSD symptoms caused significant distress or impairment in social, occupational, or other important areas of functioning. Along with symptoms described above, the Veteran also suffered from mild memory loss, suspiciousness, and panic attacks that occurred weekly or less often. The Veteran’s GAF score was noted as 51 based on persistent depressed mood and anxiety, and moderate impairment in social functioning. In March 2013, the Veteran was again seen at the VA medical center for a psychiatric visit. The Veteran was orientated and cooperative. His speech was somewhat reticent; however, he made attempts to answer all questions. The Veteran’s affect was noted as mild depression and anxiety. The Veteran did not endorse suicidal or homicidal ideation. The Veteran had no evidence of psychosis of the present or past. There was no evidence of a cognitive deficiency and he showed adequate capacity for medical decision-making. The Veteran’s GAF score was noted as 45. In July 2015, the Veteran received a VA examination. The examiner noted the Veteran suffered from recurrent distressing recollections of the event, including images and thoughts, recurrent distressing dreams of the event, acting or feeling as if the traumatic event were recurring, to include a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, and marked psychological reactions to internal or external cues. The Veteran also suffered from efforts to avoid distressing memories, thoughts, or feelings closely related to the trauma, and avoidance of external reminders, to include people, places, or conversations. The Veteran additionally suffered from persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, persistent distorted cognitions about the cause or consequence of the traumatic event that lead to individual blame, markedly diminished interest or participation in significant activities, hypervigilance, and sleep disturbance. The examiner noted the PTSD symptoms caused significant distress or impairment in social, occupational, or other important areas of functioning. Along with symptoms described above, the Veteran also experienced depressed mood, anxiety, mild memory loss, chronic sleep impairment, suspiciousness, and disturbances of motivation and mood. The Veteran’s grooming and hygiene were good. His mood was euthymic and his affect was appropriate and broad. His psychomotor activity level was normal. His speech was clear and fluent. His thought processes appeared logical and goal-directed. His thought content appeared appropriate. His intellectual functioning was within average range. His immediate and remote memory appeared grossly intact, and he was deemed to be a good historian. He did not endorse hallucinations or delusions. His insight and judgment were good. The Veteran denied suicidal and homicidal ideation, although his depression was noted to cause suicidal ideation. The Veteran was considered not to be a risk to himself or others. After consideration of the medical and lay evidence, the Board finds that an evaluation in excess of 50 percent prior to August 1, 2009, is not warranted. During this period, the Veteran’s PTSD was primarily manifested by depression, anxiety, chronic sleep impairment, hypervigilance, suspiciousness, social isolation, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board finds that the evidence of record does not support a rating of 70 percent. Prior to August 1, 2009, the Veteran at no time endorsed suicidal or homicidal ideation. Further, while the Veteran had difficulty in adapting to stressful circumstances, the evidence consistently shows that the Veteran had not experienced obsessional rituals which interfered with routine activities; speech that was illogical, obscure, or irrelevant; spatial disorientation; neglect of personal appearance and hygiene, or near-continuous panic affecting the ability to function independently, appropriately and effectively. Although the Veteran reported depression throughout the period, it did not manifest to the level of severity of being near-continuous and affecting the Veteran’s ability to function independently, appropriately, and effectively. In fact, his therapists consistently found him competent to handle his daily affairs during this period. While the Veteran had problems relating to others, he did not demonstrate a complete inability to establish and maintain effective relationships, as he maintained a close relationship with his wife. Additionally, his examiners and VA physicians consistently noted the Veteran appeared to take care of himself well. Moreover, although he had issues with drinking, the Veteran did not show any violent behavior, or have any legal issues. The Veteran further never endorsed hallucinations or delusions. The Veteran also only had a GAF score of 56 during this period, which denotes only moderate symptoms. Therefore, given the above, the Board does not find that the overall frequency, severity, and duration of the Veteran’s PTSD rises to the level of severity as needed for a 70 percent rating or higher prior to August 1, 2009. The Board also finds that a rating in excess 70 percent from August 1, 2009 is not warranted. From August 1, 2009, the majority of the medical records show the Veteran’s symptoms have been primarily and consistently manifested by depression, near-continuous anxiety affecting the ability to function appropriately and effectively, weekly panic attacks, memory loss, chronic sleep impairment, hypervigilance, suspiciousness, social isolation, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, anger problems, and occasional suicidal ideation. The Board finds that the evidence of record does not support a rating of 100 percent at any time during the pendency of the appeal. While the Veteran prefers being alone and has problems relating to others, he is not totally socially impaired, as he has continued to work on his relationship with his wife. He further stated in his July 2015 examination that although he does not spend time with friends, he does enjoy talking with friends over the phone. The Veteran has also consistently been found able to handle his affairs, dress and groom appropriately, and have normal judgment. The Veteran even continues to participate in his hobbies, which include target shooting, walking the dog, and reading. Thus, the evidence does not show that the Veteran has intermittent inability to perform activities of daily living. The Board also notes that although the Veteran has sometimes endorsed suicidal ideation, the Veteran has had no suicide attempts or any active thoughts or plans. The Board acknowledges the Veteran’s statements that he has had outbursts of anger; however, there has been no evidence of violence or irrational behavior, nor has the Veteran demonstrated that he was/is a persistent danger of hurting others. Further, these occurrences do not appear to have grossly impaired the Veteran in his thought process/communication or caused grossly inappropriate behavior. The Veteran has shown no disorientation to time or place, or delusions or hallucinations, and has maintained a good memory. Further, the Veteran’s GAF score during this period did not go below 45, which denotes serious symptoms; however, not serious enough to rise to the level of reality or communication impairment, or major impairment in multiple areas. The Board also acknowledges the Veteran’s assertions that he is entitled to higher ratings because his symptoms are worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Board has considered the Veteran’s statements and finds them credible and consistent with the ratings assigned. Accordingly, the Board concludes that the preponderance of evidence is against the claim, and an initial evaluation in excess of 50 percent prior to August 1, 2009, and in excess of 70 percent from August 1, 2009 is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran’s claim. TDIU Prior to January 16, 2012 The Veteran is currently provided a TDIU from January 16, 2012, the date after his last employer cited that his employment had ended. The following remand is for consideration of TDIU prior to this date, from November 8, 2006 (the date of service connection for PTSD) to January 16, 2012. The Veteran reported that he retired from his full-time employment in July 2009 and was then employed part-time from February 2010 through January 2012. Although on his formal TDIU application, he provided his income for the previous year, the Board finds that income information prior to January 2011 is also needed to determine whether the Veteran had marginal employment. Therefore, a remand is required to obtain documentation regarding the Veteran’s income from his part-time position prior to January 2011. The matters are REMANDED for the following action: Retrieve all salary and income information from the Veteran for August 2009 through January 2012. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel