Citation Nr: 18153463 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 12-14 929 DATE: November 27, 2018 ORDER A rating in excess of 50 percent prior March 13, 2012, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is denied. An effective date prior to March 2, 2009, for the award of a 50 percent rating for PTSD is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the appeal period prior to March 13, 2012, the Veteran’s PTSD was manifested by symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. For the appeal period since March 13, 2012, the Veteran’s PTSD is manifested by symptomatology resulting in occupational and social impairment in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 3. It is not factually ascertainable that the Veteran’s PTSD resulted in manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas prior to March 2, 2009. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent prior March 13, 2012, and in excess of 70 percent thereafter for PTSD have not 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) 9411. 2. The criteria for an effective date prior to March 2, 2009, for the assignment of a 50 percent rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1988 to February 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In October 2017, the Board remanded the case for additional development. While on remand, in an August 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 70 percent for PTSD, effective March 13, 2012. Thus, such issue has been recharacterized as shown on the title page of this decision. The appeal now returns for further appellate review. The Board has also assumed jurisdiction over a claim for a TDIU as the Veteran has alleged that his PTSD has rendered him unemployable at various points during the appeal period. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a rating in excess of 50 percent prior to March 13, 2012, and in excess of 70 percent thereafter for PTSD. The Veteran is currently in receipt of a 50 percent rating prior to March 2, 2009, and a 70 percent rating thereafter for his PTSD. He filed the instant claim for an increased rating in March 2009 and contends that such disability is more severe than as reflected by the currently assigned ratings and, therefore, a higher rating is warranted. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected PTSD is evaluated under the criteria of DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. 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; intermittently illogical, obscure, or irrelevant speech; 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. A 100 percent evaluation is warranted where 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. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 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). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the General Rating Formula “indicates that the presence of suicidal ideation alone…may cause occupational and social impairment with deficiencies in most areas.” However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran’s service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). After a review of the record, the Board finds that the Veteran is not entitled to a rating in excess of 50 percent prior to March 13, 2012, and in excess of 70 percent thereafter for his PTSD. In this regard, a July 2008 VA treatment record noted that the Veteran had increased irritability with “almost anyone” and, most recently, increased tension with his wife. He also endorsed depression, anger, and frustration, and was argumentative and tearful. The clinician noted that such symptoms were related to situational events such as job loss and homelessness, and that the Veteran would consider a PTSD residential program. However, the Veteran had a linear and goal oriented thought process, and he denied having suicidal ideation, homicidal ideation, and hallucinations. In May 2009, the Veteran was afforded a VA examination. At such time, he reported that he had been married twice and had currently been married for almost 10 years. Upon mental status examination, the examiner noted that the Veteran was neatly dressed and groomed; displayed some sadness and frustration; had normal speech; mood was sad and frustrated with an appropriate affect; was alert and oriented in all spheres; thought processes were logical; memory was largely intact; no hallucinations or delusions; adequate insight and judgment; and denied any current suicidal or homicidal ideation. The examiner also noted the Veteran’s report that his PTSD symptoms were not any worse than they were in the past, but had also not improved. The Veteran also stated that he felt like his PTSD symptoms were more severe than as recognized by VA and the examiner found that such symptoms were in the moderate to severe range. The Veteran also described problems at work related to impatience. July 2009 VA treatment records revealed that the Veteran had a mood of just needing a job and had a dysphoric affect, and was irritable with his children. However, he reported that he played softball with son. The clinician also noted that the Veteran had a linear thought process and denied suicidal ideation, homicidal ideation, and hallucinations. The Veteran also reported stability in his marriage, but neither he or his wife were currently working. The Veteran further stated, “I have trouble working because of my PTSD and trouble with relationships but I want to work.” A September 2009 VA treatment record indicated that the Veteran had low level suicidal thoughts, but no suicidal ideation, and anger with homicidal thoughts initially when he received his compensation denial, but no homicidal ideation at such time. In May 2010, the Veteran reported that he had a temporary job until the end of the month as a family service worker. He also reported that he was worried about his mother who was recovering from a fractured hip and talked with her almost daily by phone. The Veteran further reported that he was proud to be an assistant baseball coach for his son. The clinician noted that the Veteran’s report that he thought he was doing better. The clinician also noted that the Veteran had an anxious and constricted affect related to his job for the future and his wife’s health. The Veteran’s thought process was linear and he denied suicidal ideation, homicidal ideation, and hallucinations. In July 2010, the Veteran’s treatment provider provided a letter in which she gave a history of the Veteran’s PTSD treatment and noted that the Veteran was requesting an increase in his PTSD compensation due to his persisting problems with irritability, sleep, nightmares, anxiety, depression, and difficulty in maintaining employment. She noted that the Veteran would benefit from PTSD outpatient or residential programming with family education. Thereafter, VA treatment records from 2011 through 2012 revealed that the Veteran continued to deny suicidal and homicidal ideation, hallucinations, and delusions, and had good memory, insight, and judgment. See July 2011, August 2011, November 2011, and January 2012 VA treatment records. In March 2012, the Veteran underwent another VA examination. At such time, the examiner noted that the Veteran was reexperiencing irritability and anger, avoidance, numbing, and hyperarousal due to his PTSD, and found that the Veteran had occupational and social impairment with reduced reliability and productivity. In this regard, the Veteran reported that his marriage was “up and down,” and he had not spoken to his two adult daughters since last summer. However, he reported that he had a “pretty good” relationship with his teenage children, and saw his mother once a year and they spoke on the phone biweekly. The Veteran also reported increased hypervigilance since his home was burglarized in May 2010. He further reported that he was laid off in June 2011 and had not worked since, and he believed he was laid off due to his interpersonal difficulties with co-workers. The Veteran’s symptoms included a depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and intermittent inability to perform activities of daily living. The Veteran also reported that he had thoughts of hurting the men who burglarized his home, but the examiner explained that the Veteran had no intention of going and looking for them; thus, he was at a low risk of acting on such thoughts. Subsequent VA treatment records indicated that the Veteran continued to report problems with anger outbursts, irritability, and sleep. See May 2012, December 2012, and September 2016 VA treatment records. However, such records also indicated that he was alert and oriented, denied suicidal ideations, homicidal ideations, delusions, and hallucinations, and had good insight and judgment. See May 2012, December 2012, October 2013, March 2014, and May 2015, and July 2017 VA treatment records. Furthermore, at the October 2016 Board hearing, the Veteran stated that he was pulled from production at work because he was unable to focus and was now doing labor work, but could not maintain it due to other medical conditions. He also stated that he had missed up to 10 days in a month from work. Additionally, the Veteran testified that he checked to make sure windows and doors were locked, and experienced short and long-term memory issues. He also testified that he never thought about suicide, but wanted to kill his supervisor on several occasions. Pursuant to the October 2017 remand, the Veteran was afforded another VA examination in January 2018. At such time, the examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The examiner also attributed the Veteran’s symptoms of intrusive images, distressing dreams, psychological and physiological triggers, avoidance of thoughts, feelings, and behaviors, self-blame, negative alterations in cognitions and mood, irritability, hypervigilance, and exaggerated startle to his PTSD. The Veteran reported that he was staying with his wife or his daughter, and his relationship with his wife was a “storm.” He stated his relationship with his daughter was “ok for the most part” and he talked to his mother twice a month. The Veteran also reported that he was fired from his job for not producing fast enough and missing too many days of work. He stated that he took days off because he did not want to deal with his supervisor, and was currently seeking new employment. The examiner noted that the Veteran’s PTSD symptoms would likely cause moderate discomfort when interacting with other people and moderately reduced communication effectiveness. He further noted that the Veteran’s degree of irritability would likely interfere with his ability to interact with others in a work setting as well as engage with members of the public. However, the examiner also found that the Veteran’s ability to maintain a logical thinking process appeared adequate and would not likely impact his social or vocational functioning, and he did not suffer from gross impairment in thought processes, delusions, or hallucinations. The Veteran also was not a danger to himself or others. Thereafter, in February 2018, the Veteran reported that he separated from his wife and stayed with his daughter when things were too tense at home. He also reported that he was independent of activities of daily living and denied hallucinations, suicidal, and homicidal ideations. He was also alert and oriented, had fair insight and judgment, and his memory and concentration were intact. Based on review of the forgoing evidence, the Board finds that, for the appeal period prior to March 13, 2012, the Veteran’s PTSD most nearly approximates the criteria for a 50 percent rating; thus, a rating in excess of 50 percent is not warranted. In this regard, while there is evidence that his PTSD symptomatology results in social impairment with reduced reliability and productivity due to such symptoms as: difficulty with memory and concentration; anxiety, disturbance of motivation and mood; nightmares; avoidance behavior; irritability; sleep difficulty; depressed mood; and difficulty establishing and maintaining effective work and social relationships, there are no more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. Specifically, there is no evidence that his PTSD results in symptomatology of intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively; spatial disorientation; neglect of personal appearance and hygiene; inability to establish and maintain effective relationships; gross impairment in thought processes or communication; obsessional rituals which interfere with routine activities; persistent delusions or hallucinations; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. In this regard, the Board notes that the Veteran has reported irritability prior to March 13, 2012; however, such symptom in and of itself is not indicative of a higher rating as it has not resulted in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment as the Veteran has demonstrated that his impulse control is intact. Specifically, while he has reported that he wanted to hurt his supervisor, he has not reported that he has been violent due to his irritability. Similarly, the notation in September 2009 that the Veteran had low level suicidal thoughts is not indicative of a higher rating as the clinician also noted that the Veteran did not have suicidal ideation, and he has denied having such throughout the appeal period. Regarding the Veteran’s ability to establish and maintain effective relationships prior to March 13, 2012, the Board notes that he has maintained, albeit often strained, relationships with numerous family members. Specifically, the Veteran reported that he talked to his mother almost daily by phone and that he was proud to be an assistant baseball coach for his son. The Veteran also reported stability within his marriage during such time. Thus, the Board finds that prior to March 13, 2012, the difficulties the Veteran experiences in regard to occupational and social impairment are fully contemplated by a 50 percent rating. Accordingly, a rating in excess of 50 percent for the Veteran’s PTSD prior to March 13, 2012, is not warranted. Similarly, for the appeal period since March 13, 2012, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. Specifically, there is no evidence that the Veteran’s PTSD results in symptomatology of intermittently illogical, obscure, or irrelevant speech; gross impairment in thought processes or communication; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Furthermore, the Board acknowledges the Veteran has experienced occupational and social impairment; however, such have not been considered a total impairment. Specifically, while the Veteran reported marital issues and has separated from his wife, he has maintained a relationship with his two younger children as he stated their relationship is “pretty good” and he sometimes lived with his daughter. The Veteran also reported that he continued to talk to his mother at least twice a month. Thus, although the evidence may suggest total occupational impairment as will be discussed below, the evidence of record does not show total social impairment resulting from the Veteran’s PTSD. Therefore, the Board finds that the Veteran’s PTSD symptomatology is most consistent with a 70 percent rating for the appeal period since March 13, 2012. The Board further finds that no additional staged ratings are warranted as the Veteran’s disability has been consistent throughout the periods on appeal. See Hart, supra. Further, neither the Veteran nor his representative has raised any other issues, other than his claim for a TDIU, which is addressed in the Remand section of this decision, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 50 percent prior to March 13, 2012, and in excess of 70 percent thereafter for the Veteran’s PTSD. Therefore, the benefit of the doubt doctrine is not applicable to the instant claim and his claim for a higher rating for his PTSD is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an effective date prior to March 2, 2009 for the award of a 50 percent rating for PTSD. The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Law and regulation also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). The Veteran originally filed his claim for entitlement to service connection for PTSD in March 1999. Such claim was granted in a June 2001 rating decision, effective the date of claim, with a 30 percent rating. Thereafter, additional evidence was received and the AOJ continued the 30 percent rating in a February 2002 rating decision. The Veteran entered a notice of disagreement as to the propriety of such assigned rating; however, he did not perfect his appeal as he did not file a timely substantive appeal after the April 2003 statement of the case was issued. On March 2, 2009, VA received the Veteran’s current claim for an increased rating for his service-connected PTSD. The Board notes that the evidence of record does not show, and he does not contend, that a formal or informal claim for an increased rating for his PTSD was received prior to such date. Furthermore, the evidence does not show that it was factually ascertainable that his PTSD resulted in manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas prior to March 2, 2009. As discussed thoroughly in the preceding section, the evidence of record, to specifically include the aforementioned July 2008 VA treatment record, which is dated during the relevant time period, fails to show that the Veteran had 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; intermittently illogical, obscure, or irrelevant speech; 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 prior to March 13, 2012. In this regard, the Veteran’s reported symptoms of irritability, depression, anger, sleep problems, and frustration are more contemplated by a 50 percent rating. Furthermore, a factually ascertainable increase in the severity of the Veteran’s PTSD was not demonstrated until the March 13, 2012, VA examination. Thus, the Board finds no basis upon which to award an effective date prior to March 2, 2009, for the assignment of a 50 percent rating for PTSD. In making this determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s earlier effective date claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 3. Entitlement to a TDIU. The Board finds that the Veteran’s claim for a TDIU requires additional development. In this regard, the evidence of record reflects that he has been employed on and off throughout the appeal period and he has indicated that such is due to his PTSD. Most recently, a February 2018 treatment record noted that the Veteran lost his job before Christmas the prior year and was told it was due to his attitude problems and missing many days of work. Thus, the Veteran should be requested to complete and submit a Veteran’s Application for Increased Compensation for Unemployability (VA Form 21-8940). Additionally, while on remand, the Veteran should be provided notice regarding the information and evidence necessary to substantiate a TDIU claim. Thereafter, the AOJ should conduct any necessary development and adjudicate the Veteran’s claim for a TDIU for any time period from March 2, 2009, to the present when he was not substantially gainfully employed. The matter is REMANDED for the following action: 1. The Veteran should be provided with proper notice regarding the evidence and information necessary to substantiate a TDIU claim. He should also be requested to complete and submit a Veteran’s Application for Increased Compensation for Unemployability (VA Form 21-8940), listing his complete employment and educational history, to include part-time and seasonal employment, since March 2, 2009. 2. Thereafter, the AOJ should complete any necessary development and adjudicate the claim for a TDIU for any time period from March 2, 2009, to the present when the Veteran was not substantially gainfully employed. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel