Citation Nr: 18118167 Decision Date: 07/12/18 Archive Date: 07/12/18 DOCKET NO. 11-23 307 DATE: July 12, 2018 ORDER Prior to August 7, 2015, entitlement to an initial rating of 50 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is allowed, subject to the regulations governing the award of monetary benefits. FINDING OF FACT Prior to August 7, 2015, the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Prior to August 7, 2015, the criteria for an initial rating of 50 percent, but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Army from March 1967 to November 1968. He had service in the Republic of Vietnam and is a recipient of the Purple Heart Medal for wounds sustained in combat. This case was previously before the Board in May 2017. At that time, the Board granted the Veteran increased ratings for PTSD—to 30 percent from January 26, 2009 through August 6, 2015; to 70 percent from August 7, 2015 to February 2, 2016; and 50 percent from February 3, 2016. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2018 order, the Court granted a Joint Motion for Partial Remand which vacated and remanded only that portion of the Board’s May 2017 decision which granted a 30 percent disability rating prior to August 7, 2015. Entitlement to a disability evaluation in excess of 30 percent for service-connected PTSD prior to August 7, 2015 Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 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. In this case, the Veteran asserts that he is entitled to a rating in excess of 30 percent for his service-connected PTSD for the period prior to August 7, 2015. Under VA’s General Rating Formula for Mental Disorders, a 30 percent rating is assigned 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, Diagnostic Code 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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. The maximum 100 percent rating requires 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. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). The amendments replace those references with references to the recently updated DSM-5. As the Veteran’s claim was certified to the Board after August 4, 2014, the Board will use the recently updated DSM-5. See 79 Fed. Reg. 45,093-02 (August 4, 2014). As relevant to this case, the DSM-5 states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court’s holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board will afford the GAF scores mentioned in the record no probative value. See also Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19, 2017) (Finding that the Board provided an inadequate statement of its reasons or bases for relying on GAF scores in its decision when the appeal was certified after August 4, 2014, and the DSM-5 applied to the claim.) Ultimately, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Further, simply because the Veteran has some symptoms that are contemplated at a higher rating level does not mean the impact of his disability overall rises that level. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Instead, the Board must look to the frequency, severity, and duration of the impairment. Turning to the evidence of record, the Board notes that the Veteran was first afforded a VA psychiatric examination in April 2009. The Veteran reported being married, and that he had a good relationship with his spouse. He otherwise reported only occasional social relationships and denied participating in any activities or leisure pursuits. The examiner found the Veteran’s current psychosocial functional status to be impaired. The Veteran presented as clean and neatly groomed, with unremarkable psychomotor activity and clear speech. The Veteran maintained a cooperative and friendly attitude toward the examiner, and exhibited normal affect and a good mood. He was able to complete “serial 7’s” and spell a word forward and backward. Orientation to person, place, and time were all intact. Thought process and thought content were unremarkable; he reported no delusions, no hallucinations; and he displayed normal judgment and insight. The examiner indicated that the Veteran exhibited no inappropriate behavior. He had no panic attacks, no episodes of violence, no problems with activities of daily living, and no suicidal or homicidal thoughts. The Veteran acknowledged mildly impaired recent memory, though normal remote and immediate memory. He reported trouble sleeping, noting that he only slept five hours per night, which resulted in exhaustion that interfered with his daytime activities. The examiner noted the presence of a number of PTSD symptoms. Specifically, the Veteran endorsed persistently re-experiencing the traumatic event by recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions; also, recurrent distressing dreams of the event and acting or feeling as if the traumatic event were recurring. The Veteran also endorsed persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness with efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollections of the trauma; and feeling detachment or estrangement from others. Additionally, he endorsed persistent symptoms of increased arousal, including difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; and hypervigilance. The examiner determined that the Veteran’s PTSD-related disturbance caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran reported being employed full-time for over twenty years as a personnel specialist at Redstone Arsenal. He reported that his PTSD caused decreased concentration at work, but that he had not missed any work due to his symptoms. Overall, the examiner found mild impairment in functional status and quality of life due to PTSD and determined that the Veteran’s PTSD consisted of symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. In an April 2010 notice of disagreement submitted in response to the April 2009 rating decision, the Veteran took issue with the findings of the April 2009 VA examiner—specifically, that a determination on his level of compensation was based on a “19-23 minute conversation with an examiner, who basically led the conversation with a series of leading questions that required a short answer.” The Veteran wrote that he did not have the opportunity to discuss his psychiatric problems in greater depth. The Veteran went on to describe in more detail some of the problems caused by his PTSD. For instance, the Veteran wrote that his PTSD caused concentration problems at work such that he would work late most days and come into work every weekend so that he could work “without the normal office noise and interruptions such as phones, people talking, etc., because all of these things take me off task.” He also described increased irritability that only worsened his concentration problems. Additionally, the Veteran suggested that hypervigilance negatively impacted his occupational functioning: “I am also fearful that someone will attack me from the rear, and have almost hit several people that have come upon me from the rear with work related issues.” The Veteran further wrote that his PTSD caused problems at home, in large part due to the stress it caused him at work. The Veteran wrote that he would often lash out at his family, and that his stress was severe enough to result in physical manifestations: “[m]y stress and feelings of anxiety makes me so upset that my hair comes out in clumps.” The Veteran also wrote of never having a restful night of sleep due to stress, and that his wife told him he would constantly talk or groan when he was finally able to sleep. The Veteran explained that his impaired sleep affected his concentration and led to memory problems. The Veteran described how he used to enjoy watching sports, but that he could no longer go to games because the crowds cause him anxiety. He wrote of increased anxiety around holidays such as the Fourth of July or New Year’s, when people set off fireworks and firecrackers. Finally, the Veteran described how his PTSD symptoms led to a loss of intimacy between him and his wife, as well as other family problems: “I sometimes feel myself a stranger with my family.” During a February 2016 VA examination, the Veteran reported that he retired from his job at Redstone Arsenal in January 2012 because he became “fed up with it.” The Veteran’s wife reported that the Veteran was angry all the time from work, and that she was worried that he might have a heart attack. The Veteran reported that despite being referred for mental health treatment, he had never engaged in any formal treatment for his PTSD because he was concerned about how it would impact his security clearance. The examiner determined that the Veteran described PTSD symptoms of moderate severity, and that while the Veteran was able to maintain gainful employment for over 30 years, his PTSD symptoms “appeared to significantly impact his personal life.” Overall, for the period prior to August 7, 2015, the Board finds that the weight of the competent and credible medical and lay evidence details signs and symptoms of PTSD that are more closely associated with a 50 percent disability rating. The evidence indicates that prior to August 7, 2015, the Veteran’s PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity, due largely to his disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. While the Veteran was able to maintain a career for over 30 years, the evidence suggests that his PTSD symptoms—specifically, irritability and problems with concentration—at times resulted in significant stress at work. Moreover, while the Veteran has been married to his wife for over 40 years, his PTSD symptoms have strained their relationship and caused the Veteran to feel like a stranger to his family. However, after considering the frequency, severity, and duration of the Veteran’s PTSD-related symptoms and impairment, the Board finds that a higher disability rating of 70 percent for this period is not warranted, as such a rating contemplates a more severe level of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Prior to August 7, 2015, the Veteran’s PTSD resulted in occupational and social impairment, but he denied suicidal ideations and was found to display normal thought and speech, as well as generally good judgment and insight. The record does not show that the Veteran engaged in obsessional rituals which interfered with routine activities; that his speech was intermittently illogical, obscure, or irrelevant; that he experienced near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; that he displayed impaired impulse control (such as unprovoked irritability with periods of violence); or that he exhibited spatial disorientation or neglect of personal appearance and hygiene. Moreover, the record does not show 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—as required to warrant a 100 percent disability rating. Based on the foregoing, the Board finds that an increased disability rating of 50 percent for the Veteran’s service-connected PTSD for the period prior to August 7, 2015, is warranted. However, the preponderance of the evidence of record demonstrates that higher evaluations are not warranted at any time prior to August 7, 2015. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel