Citation Nr: 18157701 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 13-14 367 DATE: December 14, 2018 ORDER Entitlement to a 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD) is granted for the entire appeal period. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, PTSD symptoms during the appeal period resulted in occupational and social impairment with deficiencies in most areas, but not total social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating, but not higher, for PTSD were met during the entire appeal period. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to March 1969. 1. Entitlement to an increased rating for posttraumatic stress disorder Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall 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 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Psychiatric disabilities are rated using the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2017). A 30 percent rating is warranted for a mental disorder when there is 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130 (2017). A 50 percent rating is warranted for a mental disorder 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. 38 C.F.R. § 4.130 (2017). A 70 percent rating is warranted for a mental disorder when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130 (2017). A 100 percent rating is warranted for a mental disorder 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130 (2017). The symptoms listed in the General Rating Formula are examples, not an exhaustive list, and it is not required to find the presence of all, most, or even some of the enumerated symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate rating to be assigned for a service-connected mental disorder, the focus is on how the frequency, severity, and duration of the symptoms affect the Veteran’s occupational and social impairment, rather than on the presence or absence of particular symptoms listed in the schedular criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Relevant to a rating of the level of impairment caused by mental disorders is the score on a Veteran’s Global Assessment of Functioning (GAF) Scale. That scale is found in the American Psychiatric Associations’ Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and indicates the examiner’s opinion on the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. The assigned GAF scores increase or decrease as the Veteran’s level of psychiatric impairment improves or declines. A GAF score of 61 to 70 indicates some mild symptoms, or some difficulty in social, occupational, or school functioning. In such cases, the Veteran is generally functioning pretty well, with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. Richard v. Brown, 9 Vet. App. 266 (1996). The nomenclature in DSM-IV has been specifically adopted by VA in the rating of mental disorders. 38 C.F.R. § 4.125, 4.130. While important in assessing the level of impairment caused by psychiatric illness, the GAF score is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. Brambley v. Principi, 17 Vet. App. 20 (2003); Bowling v. Principi, 15 Vet. App. 1 (2001). Effective March 19, 2015, VA revised the Schedule for Rating Disabilities with respect to the rating criteria for mental disorders. The revisions replaced references in earlier editions of the DSM with revisions in the recently updated Fifth Edition (DSM-5). Those revisions apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. Because this case was certified to the Board prior to August 4, 2014, the revised regulations do not apply. The Veteran contends that the disability ratings assigned for PTSD do not accurately compensate the severity of the disability. The present claim for an increased rating arises from service connection for PTSD that was originally established in a July 2010 rating decision. The Veteran is assigned a 50 percent rating, effective October 13, 2009, and a 70 percent rating, effective November 28, 2017. September 2009 VA medical records indicate that the Veteran complained of symptoms including anxiety, occasional panic attacks, depressed mood, occasional nightmares, nearly daily intrusive recollections of the trauma, avoidance of thoughts or conversation about the trauma, interpersonal problems, possible emotional disconnection from loved ones, avoidance of crowds or social engagements when possible, chronic difficulty sleeping and concentrating, suspiciousness of others, and exaggerated startle response. The Veteran denied suicidal and homicidal ideation. The Veteran reported an on-and-off relationship with his live-in girlfriend and her son. He stated he was a loner, and did not have friends. On examination, the Veteran was appropriately groomed. He was alert and oriented to person, place, and time. The Veteran’s mood was depressed and anxious, and affect was mildly constricted and congruent with mood. The examiner noted hesitant behavior that was possibly due to suspiciousness. Speech was normal in rate, volume, and tone. Memory was grossly intact. Thought processes were coherent and goal-directed. The examiner diagnosed PTSD and assigned a GAF of 59. VA medical records from February 2010 through July 2010 show GAF scores ranging between 56 and 60. The Veteran consistently complained of nightmares, difficulty falling and staying asleep, decreased concentration, flashbacks, anxiety, panic attacks, isolation, hypervigilance, and difficulty maintaining relationships. During this time, the Veteran lived with his daughter, with whom he had a good relationship. The Veteran had been in a romantic relationship for one and a half years. At a July 2010 VA examination, the Veteran reported psychiatric symptoms including flashbacks, insomnia, regular nightmares, anxiety, difficulty with relationships, and avoidance of crowds. The Veteran stated that he checked the security of his home several times per night. The Veteran reported he had been divorced four times, and currently lived with his adult daughter. He stated that he had a few trusted friends in the past. The Veteran’s leisure activities were solitary in nature, including motorcycle riding, fishing, and walking. On examination, the Veteran was neatly groomed and appropriately dressed. He was cooperative and friendly. The Veteran was alert and oriented to person, place, and time. Speech was spontaneous, clear, and coherent. Psychomotor activity was fatigued and tense. The Veteran’s mood was anxious and dysphoric, and affect was constricted. Thought processes and content were unremarkable. There was no suicidal or homicidal ideation. The examiner noted symptoms of PTSD including persistent re-experiencing traumatic event in the form of recurrent and intrusive distressing recollections of event, and recurrent distressing dreams of the trauma; persistent avoidance of stimuli associated with the trauma in the form of efforts to avoid thoughts, feelings, or conversations associated with the trauma, efforts to avoid activities, places, or people that arouse recollections of the trauma, a sense of foreshortened future, markedly diminished interest or participation in significant activities, feelings of estrangement from others, and restricted range of affect; and -persistent symptoms of increased arousal, in the form of difficulty falling or staying asleep, irritability or angry outbursts, difficulty concentrating, hypervigilance, and exaggerated startle response. The examiner diagnosed PTSD, and assigned a GAF of 57. The examiner noted that the Veteran experienced daily mild to moderate symptoms of PTSD, which caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner opined that the PTSD symptoms did not result in total social and occupational impairment, but that PTSD signs and symptoms did result in deficiencies in areas including judgment, thinking, family relations, work, mood and school. September 2010 VA medical records indicate that the Veteran had experienced PTSD symptoms for many years including nightmares, intrusive recollections, flashbacks, hypervigilance, irritability, insomnia, sensitivity to reminders of the trauma, avoidance of trauma related stimuli as well as a tendency for social isolation. The Veteran reported he had anxiety attacks a few times a week. He reported depressed mood, and rated the depression a 6 out of 10 that day. The Veteran also reported that his motivation and initiative were very poor, and that he did not socialize very much. The Veteran lived by himself. On examination, the Veteran was alert, and cooperative. There was no psychomotor agitation or retardation. Cognition was grossly intact, and speech was within normal limits. The Veteran’s mood was depressed, and affect was congruent. Thought processes were organized, cohesive, and goal-directed. The Veteran denied suicidal ideation. The examiner assigned a GAF of 58. VA medical records from September 2011 through April 2016 show continued complaints of PTSD symptoms, including nightmares, hypervigilance, intrusive memories, insomnia, irritability, progressive social isolation, and anxiety, panic attacks. The Veteran experienced depressed mood and poor motivation. The Veteran denied suicidal ideation during this period. On examination during this time, the Veteran was alert and oriented. He was pleasant and cooperative. There was no psychomotor agitation or retardation. Thought processes were organized, cohesive and goal-directed. Mood during this period was often depressed, with congruent affect. During this period, the Veteran had a romantic relationship, which led to marriage. Leisure activities included riding his motorcycle, fishing, football, walking the dog, and using the computer. GAF scores during this period ranged from 53 to 62. At a September 2016 Board hearing, the Veteran reported symptoms including nightmares, sleep disturbances, flashbacks, depressed mood, anxiety, difficulty remembering where he was, and difficulty maintaining relationships. The Veteran stated that he had been married five times. He also reported that he had previous violent episodes, and that people had been afraid of him. The Veteran stated that he avoided crowds, and isolated himself. He stated that he had thoughts about hurting himself or others in the past. At a November 2017 VA examination, the Veteran reported symptoms including depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, and spatial disorientation. The examiner noted PTSD symptoms including recurrent, involuntary, and intrusive distressing memories of the trauma, recurrent distressing dreams of the trauma, persistent avoidance of stimuli associated with the trauma, avoidance of or efforts to avoid distressing memories, thoughts, feelings associated with the trauma, persistent and exaggerated negative beliefs or expectations; persistent negative emotional state; markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, sleep disturbances, irritability or angry outbursts, problems with concentration and hypervigilance. The Veteran reported that he lived in a rural area, and did not leave his home for days at a time. He stated that he had panic attacks when he entered crowded areas. The Veteran reported that he spoke to his daughter several times per month, but did not speak with his son. He had been divorced four times, but had married his girlfriend of 10 years since the last VA examination, and described the relationship positively. He stated he had no friends. He had intermittent positive communication with his brother. The Veteran had been retired since 2009. On examination, the Veteran was polite. He denied any suicidal or homicidal ideation. There was no evidence of psychosis. The Veteran denied problems with memory. The examiner diagnosed PTSD with anxiety attacks, and opined that the symptoms caused occupational and social impairment with reduced reliability and productivity. Based upon the VA examination reports, and VA medical records, the Board finds that the criteria for a 70 percent rating for PTSD have been more nearly approximated during the entire appeal period, as the Veteran is shown to have had deficiencies in most areas due to psychiatric symptoms during that period. The evidence does not show total occupational and social impairment as the Veteran maintained a social relationship with his spouse and daughter, and there is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or disorientation to time or place. In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which are found to be persuasive or unpersuasive, and provide the reasons for the rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as nightmares and flashbacks, because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the objective evidence does not demonstrate symptoms that more nearly approximate a higher rating under the General Rating Formula for Mental Disorders. Accordingly, the Board finds that the evidence supports the assignment of a 70 percent rating, but not higher, for PTSD for the entire appeal period. All reasonable doubt has been resolved in favor of the Veteran in assigning the rating. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND 1. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board finds that the issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, remand is necessary to obtain a medical opinion regarding the impact of all service-connected disabilities on the Veteran’s ability to obtain and maintain employment. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a psychiatrist. The examiner should describe the symptoms and effects of all of the service-connected disabilities on employment. The examiner should opine as to whether, without regard to the Veteran’s age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent probability or greater) that the service-connected disabilities, either separately or in combination, make the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. If the Veteran is felt capable of work, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel