Citation Nr: 1817889 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 11-21 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 70 percent for acquired psychiatric disorder, variously diagnosed as anxiety reaction, major depressive disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney at Law ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The November 2009 rating decision granted service connection for his acquired psychiatric disorder and assigned a 50 percent rating, effective March 1972. In a June 2011 rating decision, the Veteran's rating was increased to 70 percent, effective March 1972. Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2016, the Board denied the Veteran's claim for entitlement to a disability rating in excess of 70 percent for acquired psychiatric disorder. Subsequently, the Veteran appealed the decision to the Court. In January 2017, the Court granted a Joint Motion for Remand (JMR) vacating the March 2016 Board decision and remanding the matters to the Board for development consistent with the parties' Joint Motion. A VA medical opinion was obtained in this case in November 2017 from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901(a) (2017). The Veteran was provided a copy of this VA medical opinion in December 2017. See 38 C.F.R. § 20.903(a) (2017). The Veteran submitted additional evidence in response, and waived RO consideration. FINDINGS OF FACT Throughout, the Veteran's PTSD has not resulted in virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment; it has not been manifested by 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 ability 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 a rating in excess of 70 percent for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. § 4.132, Diagnostic Code (Code) 9411 (in effect prior to February 3, 1988); 38 C.F.R. § 4.132, Code 9411 (effective February 3, 1988); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as the November 2009 rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice served its purpose and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran's statements, third-party statements in support of his claim, Social Security Administration (SSA) records, and pertinent VA and private treatment records have been secured. The RO arranged for VA psychiatric examinations in October 1972 and January 2009, and, pursuant to the Board's remand, arranged for another examination in January 2015. An additional VHA opinion was obtained in November 2017. The Board finds that the examinations and opinion, cumulatively, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO's actions substantially complied with the March 2014 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA's duty to assist is met. II. Increased Schedular Ratings The present appeal involves the Veteran's claim that the severity of his service-connected psychiatric disability warrants a disability rating higher than the one currently assigned. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, a uniform evaluation of the disability on appeal is warranted. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Initially, the Board notes that the schedular criteria for psychiatric disorders were amended twice during the appeal period, effective February 3, 1988, and November 7, 1996. Where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria and, should an increased rating be warranted under revised criteria, that award may not be made effective before the effective date of the change. Prior to February 3, 1988, the schedular criteria for psychoneurotic disorders provided for a 70 percent rating when the ability to establish and maintain effective or favorable relationships with people is seriously impaired. The psychoneurotic symptoms are of such severity and persistence that there is pronounced impairment in the ability to obtain or retain employment. A 100 percent rating is warranted when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; when the individual had totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavior processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; and when the individual is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Code 9405 (prior to February 3, 1988). The schedular criteria for psychotic disorders provided for a 100 percent evaluation for active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce complete social and industrial inadaptability. A 70 percent rating is assigned with lesser symptomatology such as to produce severe impairment of social and industrial adaptability. 38 C.F.R. § 4.132, Psychotic Disorders (prior to February 3, 1988). Effective February 3, 1988, the schedular criteria to rate psychiatric disorders were revised. 38 C.F.R. § 4.132, Code 9411 (1988); 53 Fed. Reg. 1441 (Jan 19, 1988). The criteria for a 70 or 100 percent rating for psychotic disorders remained the same; the criteria for a 70 percent rating for psychoneurotic disorders remained the same except that the word "seriously" was changed to "severely" for relationship impairment, and the term "pronounced" was changed to "severe" for impairment of employability. 38 C.F.R. § 4.132, Code 9411 (1988). The General Rating Formula for Psychoneurotic Disorder as in effect prior to November 7, 1996, provided that social impairment per se would not be used as the sole basis for any specific percentage evaluation, but was of value only in substantiating the degree of disability based on all of the findings. 38 C.F.R. § 4.132, Note (1) (1995). The Court has recognized, however, that, with regard to the 70 and 100 percent disability ratings, these two considerations constituted separate, independent bases for granting the rating. See Dodd v. Nicholson, 21 Vet. App. 411 (2006); see also Johnson (Gary) v. Brown, 7 Vet. App. 95, 99 (1994) (holding that each criterion in Code 9411 is an independent basis for granting a 100 percent rating); see also Diorio v. Nicholson, 20 Vet. App. 193, 198 (2006) (holding that the Code 9411 criteria for a 70 percent rating are also separate, independent bases for rating purposes). A Veteran is entitled to a 70 percent rating for PTSD if the "[a]bility to establish and maintain effective or favorable relationships with people is severely impaired," or "[t]he psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment." 38 C.F.R. § 4.132, Code 9411. The terms "considerable" and "severe" in 38 C.F.R. § 4.132 were quantitative in nature. Hood v. Brown, 4 Vet. App. 301 (1993). "Considerable" was to be construed as rather large in extent or degree. VAOPGCPREC 9-93 (1993), 59 Fed. Reg. 4752 (1994). The Board is bound by that interpretation of the term "considerable." 38 U.S.C. § 7104(c) (2012). In addition, 38 C.F.R. § 4.16(c) stated that in cases where a mental disorder was assigned a 70 percent evaluation, and such mental disorder precluded a Veteran from securing or following a substantially gainful occupation, in such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. See 54 Fed. Reg. 4280 -01 (Jan. 30, 1989). This section was repealed when the revised criteria for rating psychiatric disabilities became effective on November 7, 1996. 61 Fed. Reg. 52695 (Oct. 8, 1996). As is discussed in more detail below, the Veteran was employed until the mid-2000s when a physical disability limited his ability to work; accordingly, 38 C.F.R. § 4.16(c) does not apply as he was not precluded from securing or following a substantially gainful occupation due to his psychiatric disability. Effective November 7, 1996, amendments were again made to the criteria for rating psychiatric disorders. Under this criteria, the General Rating Formula for Mental Disorders provides for a 70 percent rating when the evidence shows 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of all psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran has been assigned various Global Assessment of Functioning (GAF) scores for his psychiatric disability. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). 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). See 38 C.F.R. § 4.130; see also American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's increased rating claim was originally certified to the Board in 2011 (prior to August 4, 2014), the DSM-5 is not applicable to this case. The Veteran served as a U.S. Marine Corps rifleman with a primary occupational specialty as a vehicle mechanic. He served in the Republic of Vietnam from January to March 1970. Service treatment records show that the Veteran sought treatment in October 1971 for intermittent lapses of memory since an auto accident two years earlier. He underwent physical and psychological evaluations in which he reported anxiety over his marriage, debt, and treatment by Marine superiors who instructed him on how to dress and cut his hair. There was no mention of any traumatic events including any in Vietnam. A medical board of two physicians found that the Veteran had a lifelong maladjustment and emotional disorder that existed prior to entry on active duty and not aggravated by service. The Veteran was discharged as unfit for further service because of a diagnosed anxiety reaction. The Veteran's psychiatric disability has been rated as 70 percent disabling since March 1972. The Veteran has been awarded a total disability rating based on individual unemployability or a total combined schedular rating since July 2006. On October 1972 VA neuropsychiatric examination, the Veteran reported that he was not in combat in Vietnam. He reported that he was divorced in May 1972, that his two daughters lived with his ex-wife, and that he and his son lived with his father. He reported that he first became nervous in January 1971. From September 1971 to February 1972, he received psychiatric outpatient treatment every two weeks at Camp Pendleton, California; he did not take any tranquilizing drugs at that time. He denied any neurological treatment in service or since discharge from service to the present time; he did not have any psychiatric treatment since his discharge from service. He had been employed as a part-time laborer at a landscaping business since April 1972 and was unable to work full-time because of his back condition. He reported that he had many friends but did not go out often as he preferred to be by himself; crowds and noises tended to upset him. He had not gone out with any woman since his divorce. He was nervous since January 1971 and was frequently under tension, often restless, and irritable at times. He also had difficulty sleeping. On mental status examination, he was not neat in appearance, but was quiet and fairly cooperative. Although he could think clearly, he had difficulty concentrating. He was not resentful or hostile during the examination and had no disturbance in thought process. His stream of speech was decreased in rate but was relevant and coherent. He appeared to be tense during the examination. Memory was fair, and orientation was good in all spheres. He denied auditory or visual hallucinations. Although he was depressed at times, he denied suicidal or homicidal ideas or attempts. He denied crying spells but had some feelings of insecurity and guilt. His judgment was good and he had some insight into his condition. There were no signs of psychosis. A diagnosis was deferred until the examiner could review the Veteran's service records. Thereafter, the record is silent for any mental health treatment until October 2007, when the Veteran reported feeling depressed. His wife told him that he was getting irritable like he was in the past. He felt down, depressed, and hopeless, and lost pleasure and interest in all things. He also experienced difficulty sleeping. He denied suicidal or homicidal ideation. His acute symptoms included anxiety, insomnia, irritability, and anger. He reported a long history of mood symptoms but denied treatment. His depressed mood worsened over the prior five months, which he related to his living situation. He felt depressed and irritable, and was socially withdrawn. He would get upset for simple reasons, experienced crying spells, and was emotional. He felt worthless at times, but denied any suicidal or homicidal ideation. He slept three to four hours per night. On physical examination, the Veteran was alert, active, oriented times three, and cooperative. He was fairly attired and groomed, although unshaven. There was no evidence of abnormal movements. His speech was fluent with normal rate and volume, and he maintained good eye contact, but was tearful during the interview. His mood was depressed with full range and mood congruent affect. His thought processes were logical and relevant, and his thought content was without psychotic features. He denied suicidal or homicidal ideation or auditory or visual hallucinations. His recent, intermediate, and remote memory was adequate. His attention and concentration were good, and his insight and judgment were adequate. There was no psychomotor retardation or agitation. Major depressive disorder was diagnosed and a GAF of 51 was assigned. On December 2007 evaluation conducted in connection with his claim for SSA benefits, the Veteran reported being on antidepressant medications for eight weeks with no significant change in condition. Signs and symptoms included anhedonia, appetite disturbance, decreased energy, feelings of guilt/worthlessness, mood disturbance, difficulty thinking/concentrating, and emotional withdrawal/isolation. He also reported sleep problems. With respect to occupational limitation for unskilled work, he was unable to meet the competitive standards of remembering work-like procedures, maintaining regular attendance, sustaining an ordinary routine without special supervision, working in coordination with or proximity to others without being unduly distracted, completing a normal workday/week without interruptions from psychologically-based symptoms, performing at a consistent pace without an unreasonable number and length of rest period, getting along with coworkers or peers, responding appropriately to changes, and dealing with normal work stress. He was also unable to meet the competitive standards of interacting appropriately with the general public, maintaining socially appropriate behavior, adhering to basic standards of neatness and cleanliness, and traveling in unfamiliar places. He had no restriction of activities of daily living (ADL), but had moderate difficulties in maintaining social functioning and moderate deficiencies of concentration, persistence, or pace. MDD was diagnosed, and a GAF of 51 was assigned. According to a January 2008 Psychiatric Review Technique administered by the SSA, the Veteran stopped working in July 2006. His psychiatric symptoms included anxiety and irritability/anger. Although he reported a long history of mood symptoms, he was never in treatment. His depressed mood was getting worse due to his living situation as he lived in a two-bedroom mobile home with seven people. He felt depressed and irritable, and would get upset for simple reasons. He was socially withdrawn, experienced crying spells, and was emotional; he did not like to be around people. Functional ADLs included feeding the pets, waking up his granddaughter, dropping her off and picking her up from work, taking his wife and grandchildren to appointments, and helping his wife because of her arthritis. Although his wife cooks, he was able to make simple meals, do light cleaning, drive, shop, manage money, attend car shows, and socialize with family. He needed reminders for appointments and could follow instructions ok; although he could get along with authority, he would easily get mad. It was determined that he was mildly restricted in ADLs; had moderate difficulties in maintaining social functioning, concentration, persistence, and pace; and had no episodes of decompensation. According to a January 2008 SSA Mental Residual Functional Capacity Assessment, the Veteran was found to not be significantly limited in many areas, including (but not limited to) the ability to work in coordination with or proximity to others without being distracted by them, make simple work-related decisions, interact appropriately with the general public, get along with coworkers, and maintain socially appropriate behavior. He was found to be moderately limited in the ability to set realistic goals or make plans independently of others, accept instructions and respond appropriately to criticism from supervisors, complete a normal work-day and workweek without interruptions from psychologically based symptoms, maintain attention and concentration for extended periods, carry out detailed instructions, and understand and remember detailed instructions. According to a January 2008 VA treatment record, the Veteran's medications were increased to help with sleep and mood. Mild improvements of irritability were noted, but he continued to feel depressed and unmotivated. On physical examination, the Veteran was alert, active, oriented times three, cooperative, fairly attired and groomed, but unshaven. His speech was fluent, with slow rate and volume, and he maintained on-off eye contact. His mood was depressed with restricted range and mood congruent affect. His thought process was logical and relevant, and his thought content was without psychotic features. He denied suicidal or homicidal ideation, or auditory or visual hallucinations. His memory, insight, and judgment were adequate, and his attention and concentration were good. A GAF score of 51 was assigned. During March 2008 VA treatment, the Veteran reported no significant change in condition, although he was "less hateful" and less irritable. He reported problems falling and staying asleep and still felt depressed. In June 2008, he complained of fatigue and denied any interest or pleasure in doing anything. Although he expressed feelings of sadness and hopelessness, he denied any suicidal or homicidal ideation. He preferred to be alone and was irritable and angry. He was also easily frustrated because nothing was "going right." In the following months, the Veteran continued to complain of fatigue, nervousness, and irritability. During treatment in August 2008, he stated that he avoided confrontation and preferred to be alone due to anxiety in crowded places. In January 2009, he denied being motivated and stated that he spent most of his time sitting on the couch by himself. On January 2009 VA mental disorders examination, the Veteran denied working for the first three years after service. Twenty years ago, he was jailed for one month for getting into a fight when he was drunk; his last physical altercation was two years prior. However, he reported that his drinking did not affect his job because he was self-employed in the siding business for the past 18 years. On physical examination, his mood was low, his appetite good, and his energy and concentration were variable. He denied suicidal or homicidal ideation. Irritability was reported by those around him. He denied nightmares, daytime recollections about the military, or consistent hyperarousal. He was easily distracted, but was oriented times three. He denied hallucinations, delusions, panic attacks, or homicidal/suicidal thoughts. He did not have inappropriate behavior, or obsessive/ritualistic behavior. He had fair impulse control, with no episodes of violence for the last two years. His remote and immediate memory were normal, while his recent memory was moderately impaired. He last worked in 2005 and was no longer employed due to physical disabilities, specifically a heart disorder. The examiner noted that the Veteran appeared to have some cognitive deficits and emotional struggles that reduce his reliability and productivity, and which could be attributed to his heart condition and/or his depressive disorder. During April 2009 VA treatment, the Veteran reported feeling more calm and less irritable. He spent most of his time at home as he had no motivation, although he was trying to be more involved with his brother. He avoided crowded places due to increased irritability. On June 2009 private psychiatric evaluation, the Veteran reported sporadic symptoms since service, with dysphoria predominating. He reported working in construction and most recently in his business with his son installing siding and windows. He stopped work because of an inability to climb scaffolds due to shortness of breath. He experienced loss of composure with angry outbursts against family members, and while driving or in crowds. He experienced difficulties starting and finishing simple household activities and was easily startled and provoked. He acknowledged a past overuse of alcohol with dependence manifested by intolerance, withdrawal symptoms, and seizures. On examination, the Veteran was alert and fully oriented. His affect was reactive and his mood was anxious, dysphoric, and irritable with short periodicity mood swings. His thought processes were slowed, inefficient, and confused. He reported dissociative episodes and flashbacks to traumatic experiences and had an easy startle response with autonomic hyperactivity. He denied homicidal or suicidal thoughts or hallucinations; no delusions were detected. He experienced initial insomnia, with multiple awakenings each night. His energy level was low and his appetite was decreased. His concentration was poor and he was forgetful. His insight was limited and his judgment was intact. PTSD and alcohol dependence in full remission were diagnosed, and a GAF of 50 was assigned. His prognosis was considered poor. The examiner, Dr. T., determined that the Veteran's psychological symptoms began in 1970 and that he has had continuously severe symptoms with a GAF of 50, precluding full or part-time employment in any occupation. The Veteran has submitted numerous statements from his stepmother, brother, wife, sister-in-law, and brother-in-law in support of his claim. Most, if not all, address the Veteran's excessive drinking after service and his anger issues. In a February 2010 statement, his sister-in-law reported that he and her husband would drink to excess almost every night. Once, when she reprimanded her husband in front of the Veteran about his drinking, the Veteran "flew off the handle." His brother-in-law stated that the Veteran would "sit around the house" when he gets stressed. In a March 2010 statement, the Veteran's wife stated that they have been together for 36 years, 18 of which were as a married couple. She described the first 15 years of their relationship as the rockiest because of his drinking, unreliability, and feelings of depression; it was like he was "mad at the world, and drinking and running around was the way he handled the stress." She first met the Veteran in a bar in November 1972. He was drunk and pulled her out of her chair to dance, but she refused. The next week, he was drunk again and asked her to dance, but this time she agreed. She described him as friendly and open when he was drinking and as closed up and aloof when he was sober. He would wake up in the middle of the night because of nightmares. She also described periods of violence. For instance, during a hospital stay in 1986, the Veteran grabbed a nurse by her throat when she woke him up because he did not know where he was. He once attacked a coworker and put a shovel to his throat; another coworker stopped the attack before the Veteran could crush his neck. In late 2009, someone used their front yard as a bathroom; the Veteran yelled at the guy and ran after him but was unable to catch him; he said that if he had caught the guy, he would have killed him. With respect to employment, he always worked in construction-type jobs where he could work by himself. However, he did work for a specific company for 20 years. Although he is not as bad as he used to be, he would still get angry, and throw tools or other things. He seemed to be a lot more depressed and continues to have nightmares. He does not like to leave the house or do anything. In a March 2010 statement, the Veteran's brother stated that the Veteran kept to himself and did not talk after returning from service. Although he tried to get back into society, he did not like being around people and had trouble fitting in; he created a lot of distance between himself and his brother. When he returned from service, he first worked at a construction firm running machines by himself. He liked this job because he was isolated from everyone else since he struggled in jobs where he had to work with others. After receiving his paycheck, he often spent the weekend drinking; he would return to work on Monday wearing the same clothes he wore on Friday, without having showered. His brother also stated that the Veteran did not like to have anyone behind him and would jump at the sound of a truck backfiring. Drinking seemed to be the only thing that calmed him down, although he could still snap at the drop of a hat. There were several times where the Veteran attacked his brother; after doing so, he would disappear for two to three days and then return and apologize. He was always angry and once attacked his ex-wife's boyfriend. Now, the Veteran visits his brother at least every other weekend to "get away" since the brother lives in the country where he cannot see or hear his neighbors. On May 2010 VA mental disorders examination, the Veteran reported that he last worked as a soffit facer in construction for more than 20 years and that he gathered plants in swamps and travelled all over the state selling them to the public. He stopped working because of his heart disorder. He reported that he recently reestablished contact with his three children after twenty years of no contact. He and his wife liked to spend time in their home but enjoyed going to Old Town and viewing automobile exhibits; he was working on fixing up an old car. He stopped working in 2004 due to a heart condition and was awarded SSA disability benefits in 2009 for this condition. On psychological examination, he was clean and casually dressed. His speech was clear, his attitude cooperative, his affect appropriate, his mood good, and his attention intact. He was oriented times three, and his thought process and thought content were unremarkable. Although his wife told him that he has dreams, he was unable to recall any dream content. He did not have hallucinations or obsessive/ritualistic behavior. He reported experiencing panic attacks, but stated that these happen if he went shopping. His last panic attack was in April 2010 after becoming upset while working; it lasted a few minutes and resulted in moderate distress. His panic attacks happen maybe a couple of times a year. He tends to ventilate verbally or throw things when he is stressed or angry. He made himself a punching "speed bag" to use for stress management. MDD and PTSD were diagnosed, and a GAF of 53 was assigned. The examiner noted that multiple health conditions and family issues could exacerbate the Veteran's depression but that he manages to stay busy working on his home and yard, and on restoring an old vehicle. The examiner opined that the Veteran's multiple health problems make the likelihood of him seeking or maintaining employment "most unlikely" and that he has limited, but not total, social impairment. On July 2010 private psychiatric evaluation, the examiner opined that the Veteran has an inability to establish and maintain effective relationships and that this condition has prevented him from maintaining employment for any steady period of time. He also opined that there has been a steady worsening of this condition to the point where the Veteran is now completely unable to secure or follow a substantially gainful occupation. This condition, which has been permanent as of at least 2006, has resulted in occupational and social impairment due to such symptoms as gross impairment communication, grossly inappropriate behavior, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). He noted that the Veteran avoided psychiatric treatment for decades because of his anger at the VA for denying his claim of service connection and that his condition has not improved throughout the years. He concluded that the Veteran's PTSD began in service and that this disability has impaired his ability to develop and maintain effective and healthy relationships and his ability to obtain and maintain employment due to his complete lack of impulse control, his inability to handle stress, and his inability to effectively interact with others. Further, there has been a steady worsening of this condition since then. Within a high degree of certainty, he has been unable to have effective relationships with others, maintain employment due to his grossly impaired impulse control, or adapt to stressful circumstances since leaving service; he is also unable to secure or follow a substantially gainful occupation as a result of his psychiatric disability since at least 2006. In a May 2011 addendum opinion, the private psychologist confirmed that, from the early 1970s, the Veteran's PTSD has impaired his ability to develop and maintain effective and healthy relationships and his ability to obtain and maintain employment. After reviewing all of the evidence in the Veteran's file, he opined that the Veteran's limitations of social functioning are "profound" to the extent that his PTSD symptoms have been so off-putting that the attitudes of all contacts, except the most intimate, were so adversely affected as to result in virtual social isolation in the community. During June 2012 VA treatment, the Veteran reported feeling good and feeling less depressed, although he still experienced some "spells" of depression. He was attending car shows and talking to people, but still dealt with procrastination, making decisions, and low confidence. Although he wanted to work on his car, he felt incapable to do so. He believed that his medications were helping with his depressive symptoms as he was able to go out more often. A GAF score of 52 was assigned. According to an October 2012 VA treatment record, the Veteran reported symptoms of depressed mood associated with procrastination and low self-esteem. In December 2012, he denied any significant change in his condition and denied feeling severely depressed. However, he still procrastinated and isolated himself, had no motivation, and experienced a depressed mood; all of these symptoms caused him to stall working on his old car. In the following months, the Veteran continued to complain of procrastination, isolation, daydreaming, and a lack of motivation. According to a September 2013 VA treatment record, he started working on restoring his car but felt jittery while doing so. He showed some improvement of mood and was becoming more active. During treatment in December 2013, he denied being able to work on his car because of the holiday season and since his stepmother was in the hospital. On physical examination, he was alert, calm, and cooperative, and in no acute distress. His mood was dysphoric and his affect was broad. His attention, concentration, and memory were all normal; his thought process was normal, linear, logical, and goal oriented. He denied auditory or visual hallucinations or delusional thoughts. His judgment and insight were good, and he was oriented to person, place, situation, and date. During later treatment, he reported that his stepmother recently died and that he had spent a lot of time taking her to medical appointments and helping with chores in the house while she was alive. Now, he was planning to go to his farm for one week to take time for himself. In January 2015, he agreed to take medications to feel better and become more active. Pursuant to the Board's March 2014 remand, the RO arranged for a VA PTSD examination January 2015. The examiner noted the Veteran's PTSD diagnosis contained elements of depression that have been stable with his current mental health treatment program. Although his symptoms included depressed mood and chronic sleep impairment, he is able to oversee the management and maintenance of his home, his father's home, two mobile homes, and his five-acre fish farm; he also cared for his stepmother who had since passed away. Medications help him stay calm and more relaxed. He enjoyed going out in public and to auto shows. His day included seeing his children off to school, doing yard work, having dinner with his family, and watching TV. He expressed verbal intimacy to his wife but has no sexual relations. On examination, he was appropriately groomed and casually dressed. He was oriented times three and his eye contact was good; he was calm and cooperative. A rapport was developed and his speech was normal for rhythm, rate, and volume. There was no psychomotor agitation or retardation. His mood was euthymic, and affect was congruent with mood. His thought processes were linear, logical, and goal oriented; insight, judgment, and reasoning appeared intact, with no evidence of any perceptual disturbances, paranoia, or delusional thinking. The examiner noted that the Veteran maintained meaningful relationships and engaged in a variety of social and interpersonal activities, including normal and routine ADLs, hobbies, and his personal tropical business. He also oversaw the management of five properties, maintained good self-care and conversation, and reported marked benefit from his ongoing mental health treatment. His mental condition did not preclude occupational functioning and had not increased in frequency, severity, or duration. He concluded that the Veteran's psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Following the January 2017 JMR, the Board requested a VHA opinion from a psychiatrist or doctoral-level psychologist in order to obtain a retroactive opinion. The specialist was asked to review the claims file in detail, and provide an opinion on the nature, duration, and severity of the social and occupational impairment experienced by the Veteran from 1972 to the present. A November 2017 VHA opinion was provided from Dr. V.C. The opinion stated that the Veteran's claims file, and contentions contained therein, was read. The opinion cited to various documents of record, and summarized the Veteran's psychiatric treatment. In response to the question posed, the opinion stated that after "reviewing all of the clinical treatment notes and various reports and evaluations, as well as 46 years of medical records, the psychiatric picture that of an appellant (Veteran) who was initially diagnosed with an Anxiety Reaction and eventually became 70 percent [service-connected] for PTSD. He underwent psychiatric treatment starting in 2007. He was diagnosed with Major Depressive Disorder and at his worse, was given a GAF of 51. At no time did he show a total occupational and social impairment due to: 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." The opinion also tried to reconcile all of the psychological and psychiatric evaluations. The specialist noted that the June 2009 examiner, and the January 2015 examiner had the opportunity to evaluate the Veteran, while the 2010 and 2011 opinion was performed after a review of the Veteran's medical charts. The specialist also noted that the statements provided by the Veteran's friends and family were not medically objective. The opinion concluded that, "based on all of the information provided, that the [Veteran's] PTSD/Major Depressive Disorder were NOT so severe to cause him to be severely disabled throughout his life. He was able to maintain work. He sought assistance for one of his handicapped children, he eventually remarried and was in a long-term relationship. He was also able to reconnect with the children from his first marriage, and was able to take in his stepson as his own. Had he had a more serious psychiatric illness, I would have expected suicidal ideation, hospitalizations, frequent visits with his psychiatrist, poor parenting, and referral for therapy to minimize his symptoms and improve his functions. I would also have expected either high doses of medication or the use of more medications to treat his symptoms." In accordance with the requirements of the January 2017 JMR, The Board finds that the specialist looked at the Veteran's entire history to provide an opinion dating back to 1972. In response to the VHA opinion, the Veteran submitted a private opinion from a specialist in February 2018. The specialist reviewed the claims file and interviewed the Veteran and his spouse via videoconference. He reported that during the videoconference, the Veteran showed frequent tangentiality, derailment, and perseveration, changing topics mid-sentence. He admitted to yelling and throwing things during minor annoyances. The Veteran's wife reported that sometimes he lost focus. The specialist concluded that the Veteran was suffering from severe and chronic PTSD, Major Depressive Disorder, and alcohol use disorder (in sustained remission). The specialist administered three psychological instruments to evaluate the Veteran, the Cognitive Distortion Scale (CDS), the Detailed Assessment of Posttraumatic Stress (DAPS), and the Everstine Trauma Response Inventory (ETRI). The Veteran's CDS scores indicated that he had a tendency to blame himself for negative, unwanted events, and that his efforts to change unwanted or problematic situations would be unsuccessful. The Veteran had clinically significant scores on the DAPS test as well, indicating peritraumatic distress, peritraumatic dissociation, re-experiencing, avoidance, hyperarousal, and the posttraumatic stress-total scale. The results of the Veteran's ETRI test indicated that his posttraumatic symptoms have persisted since the initial trauma was experienced while he was on active duty. The specialist opined that the Veteran sought out high-risk situations throughout his life in an attempt to regain some sense of control and mastery of his environment. The specialist determined that the Veteran's major depressive disorder, concomitant with his PTSD, rendered him totally impaired, socially and occupationally, and made him unable to obtain or retain employment from the day of his discharge. The specialist defended this statement by explaining that the Veteran was not able to hold a job for any reasonable length of time unless accommodations not afforded to other employees were made for his disability. This finding is entirely inconsistent with the record of the Veteran's occupational history, much of which reported by the Veteran and his family. The specialist also objected to the November 2017 VHA opinion. He stated that the November 2017 opinion was based strictly on a review of the claims file, he also objected to the findings that the Veteran was employed through 2006 using the rationale stated above. He concluded within a high degree of certainty that the Veteran was totally impaired, occupationally and socially. Considering the criteria in effect prior to November 1996 (and taking into account the pre- and post-February 3, 1988 amendments), the Veteran's service connected PTSD has not been shown to result in virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. As an initial matter, none of the evidence submitted shows totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality. In fact, the Veteran has consistently been shown to be fully oriented, with logical speech, and his GAF scores, which have ranged from 50 to 53, have not been consistent with total incapacity. The Board notes that a private psychiatrist opined in a June 2009 report that the Veteran's psychiatric symptoms preclude full or part-time employment in any occupation "as acknowledged by approval of social security benefits." The Board further notes that the Veteran was granted SSA benefits as of March 2008 for cardiomyopathy, depression, and mild restrictive pulmonary disease. While SSA determinations are relevant and the records relied upon to make SSA determinations are probative evidence in consideration of the Veteran's appeal, SSA decisions are not binding on the Board. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). In a July 2010 opinion, a private psychiatrist opined that the Veteran's psychiatric disability resulted in occupational and social impairment due to such symptoms as gross impairment communication, grossly inappropriate behavior, and intermittent inability to perform ADLs since at least 2006. He further opined that since service his condition "prevented him from maintaining employment for any steady period of time" and gradually worsened. In a May 2011 addendum opinion, the psychologist stated that since the early 1970's the Veteran's limitations of social functioning are "profound" to the extent that his PTSD symptoms have been so off-putting that the attitudes of all contacts, except the most intimate, were so adversely affected as to result in virtual social isolation in the community. This sentiment is echoed in the February 2018 private opinion, which determined that the Veteran was unable to sustain gainful employment, as evident by the accommodations provided in his last job. The Board acknowledges the opinions provided by the Veteran's private examiners regarding the Veteran's disability prior to October 2007, but notes that the only contemporaneous post-service medical record in the file dated prior to October 2007 is the October 1972 VA neuropsychiatric examination, in which the Veteran stated that he had many friends, although he preferred to be by himself and tended to avoid crowds. While he had difficulty concentrating, he could think clearly and had no disturbance in thought process. Although depressed at times, he denied any suicidal or homicidal ideas or attempts and had no crying spells. His judgment was good, he had some insight into his condition, and he knew the value of money and how to spend it wisely. He was able to work part-time as a laborer, and was only restricted from working in full-time employment because of a back disability. Further, there were no signs of psychosis found on examination. There is no evidence that the Veteran sought psychiatric treatment for several decades following this examination. In fact, the next mental health treatment record in the file is not until 35 years later, in October 2007. The treatment records from that time to the present, as well as the statements submitted by the Veteran and by others on his behalf, do not show that he has been virtually isolated in the community. To the contrary, the evidence shows that he dated a woman for 18 years and then married her, reflective of something entirely less than total social impairment. Additionally, his wife, brother, brother-in-law and sister-in-law all stated that he frequented taverns and bars often, again, showing that he was not virtually isolated from the community. His stepmother stated that the Veteran could be around people but was not happy about it and did not always get along with others. His wife also stated that they went on a fishing trip in the mid-1980s. While the psychiatric evaluations of record and statements submitted in support of his claim have shown that the Veteran prefers to keep to himself and does not make friends, he has consistently been shown to have a relationship with at least one of his children, was able to meet, date, and marry a woman during this period, and worked until at least 2006. These findings do not reflect virtual isolation in the community. The examination results and statements in support of his claim likewise have not shown demonstrable inability to obtain or retain employment due to psychiatric symptoms. In October 1972, he stated that he worked part-time as a laborer and was unable to work full-time due to his back disability. His wife stated that he had always worked in a construction-type of job; he worked for one company for 20 years, and while he and his boss had their ups and downs, they were able to maintain a friendship. The Veteran's April 2010 application for increased compensation based on unemployability confirms that he worked for a siding/construction company from approximately 1987 to July 2006. His brother also stated that they worked together in the 1990s putting siding on houses. The Board acknowledges that accommodations were made for the Veteran's disability, particularly that the Veteran was able to avoid conflict and keep to himself. These accommodations do not mean that the Veteran was rendered totally occupationally impaired. Again, for the reasons stated above. The Veteran maintained positive relationships with his boss and completed occupational tasks. While the Veteran's record contains positive evidence in the form of private opinions and statements in support, the Board finds that a 100 percent schedular rating is not warranted under the pre-November 1996 criteria. Specifically, the Board finds that the October 1972 medical opinion is the only contemporaneous record prior to October 2007 and it does not show that he meets or even approximates the criteria for a 100 percent rating. The Board concludes that the findings by this neuropsychiatrist are more probative and persuasive than the opinions of the private psychiatrists in 2009 and 2010 who provided opinions as to the Veteran's entire psychiatric history many years prior to their evaluation of his psychiatric disability. The evidence of record also does not show that the Veteran meets the criteria for a 100 percent rating under the current schedular criteria as there is no showing of 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. The Veteran's thought processes and communication have been consistently at least adequate, and he has consistently denied delusions or hallucinations. His hygiene has always been appropriate (save for notations of him being unshaven), and he has always been able to perform ADLs. Specifically, he has reported on numerous occasions that his ADLs include feeding the pets, helping his children and grandchildren get ready for work/school, taking family members to appointments, and helping his wife because of her arthritis. The evidence further shows that he, at least in recent years, has helped to maintain his house, his father's house, two mobile homes, and a five-acre fish farm, by performing landscaping duties. Additionally, while his stepmother was alive, he took her to appointments and helped with chores around her house. At the time of the last VA examination, he had been married for 16 years (but together for 34 years) and reported a good relationship with his wife and children. He also stated that he enjoys going to Old Town and viewing auto exhibits. While some memory impairment has been occasionally demonstrated, he has always been fully oriented. These factors weigh strongly against a finding that his symptoms produced total occupational and social impairment. Further, his assigned GAF scores of 51 to 53 reflect symptom levels ranging from mild to moderate to serious, but do not support a 100 percent rating, which contemplates total occupational and social impairment. The February 2018 private opinion is thorough in explanation and history, and the Board recognizes that the Veteran exhibits severe impairment, however, the Board fails to find total occupational and social impairment or virtual isolation in the community for the reasons stated above. Although the Veteran exhibited bursts of anger, isolation, and avoidance, his history of relationships, hobbies, ADL's, and employment demonstrate that the legal criteria for a 100 percent disability rating are not met at any time. The weight of the evidence demonstrates that the Veteran's PTSD is no more than 70 percent disabling under Diagnostic Code 9411 for the entire appeal period. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Additional Considerations The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has already been granted TDIU effective July 1, 2006. Prior to this date, the evidence reflects that he was employed. The Board acknowledges that accommodations were made for the Veteran's disability, particularly that the Veteran was able to avoid conflict and keep to himself. These accommodations do not mean that the Veteran was unable to sustain gainful employment. The fact that the Veteran remained employed for nearly 20 years with the same employer, and was able to perform the tasks required for his job, demonstrate that the criteria for a TDIU was not met until the Veteran became unemployed in July 2006. As there is no evidence of employability prior to this date, and as he has already been granted TDIU for his entire period of unemployability during the period on appeal, the Board finds that further consideration of TDIU is not warranted. ORDER An initial rating in excess of 70 percent for PTSD is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs