Citation Nr: 18117555 Decision Date: 07/11/18 Archive Date: 07/10/18 DOCKET NO. 15-17 763 DATE: July 11, 2018 ORDER An initial rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to December 18, 2013, and in excess of 70 percent from that date, is denied. FINDINGS OF FACT 1. Prior to December 18, 2013, the Veteran’s service-connected PTSD was manifested by occupational and social impairment with reduced reliability and productivity; the PTSD was not manifested by symptoms of such severity and/or frequency as to produce occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. From December 18, 2013, the Veteran’s service-connected PTSD has been manifested by symptoms of such severity and/or frequency as to produce occupational and social impairment with deficiencies in most areas; the PTSD has not been manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent rating for PTSD prior to December 18, 2013, and in excess of 70 percent from that date, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1981 to August 1987. 1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to December 18, 2013, and in excess of 70 percent from that date. In November 2013, the Board issued a decision granting service connection for PTSD. That same month, the Regional Office (RO) issued a rating decision that implemented the Board’s decision and assigned a 50 percent rating for the Veteran’s PTSD, effective February 26, 2009 (date of claim). The Veteran appealed the initial rating assigned, but not the effective date. [The Board notes parenthetically that in more recent statements, the Veteran has characterized his “date of claim” as February 24, 2009. Regarding this matter, the Board notes that the Veteran signed his original VA Form 21-526, Veteran’s Application for Compensation and/or Pension, on February 24, 2009; however, the form was not received by VA until February 26, 2009. According to 38 C.F.R. § 3.400, and with a few exceptions to the general rule, “the effective date of an evaluation . . . based on an original claim . . . will be the date of receipt of the claim or the date entitlement arose, whichever is later.” (Emphasis added.) Here, the Veteran’s claim for service connection was received on February 26, 2009; therefore, this date is considered his date of claim.] After appealing the initial rating assigned, in a May 2015 rating decision, the RO granted a 70 percent rating for the Veteran’s PTSD, effective December 18, 2013. The Veteran continues to disagree with the rating assigned for both “stages” of the appeal. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). In the rating decisions, the Veteran’s PTSD was evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, to include PTSD, a 50 percent rating is warranted when there is: [o]ccupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted when there is: [o]ccupational 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); inability to establish and maintain effective relationships. Id. A rating of 100 is warranted when there is: [t]otal 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. The symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that “any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation”). However, “a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). “The regulation’s plain language highlights its symptom-driven nature” and “symptomatology should be... the primary focus when deciding entitlement to a given disability rating.” Id. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria, rather than solely on the examiner’s assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a) (2017). The evidence of record consists of the Veteran’s lay statements and four examination reports: a February 2009 private examination report, a February 2010 VA examination report, a December 2013 private examination report, and an April 2015 VA examination report. The Board notes that the examination reports indicate that the Veteran has not been receiving treatment for his PTSD. Prior to December 18, 2013 Upon review of the evidence of record, the Board finds that an initial rating in excess of 50 percent is not warranted for the Veteran’s service-connected PTSD prior to December 18, 2013. The evidence from the February 2009 private examination and February 2010 VA examination reflect that his mental disability most nearly approximates a 50 percent rating for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See Mauerhan v. Principi, 16 Vet. App. 436. In so concluding, the Board finds particularly persuasive the February 2009 private examination of record, which reflects that the Veteran experienced symptoms of social withdrawal, chronic sleep impairment, flashbacks, nightmares, irritability, anger outbursts, mild concentration problems, hypervigilance, depression, and mild memory impairment. These findings were echoed by the February 2010 VA examination, in which the examiner found chronic sleep impairment, impaired thought processes, impaired focus, workplace difficulties, and mild memory impairment. The Board notes that the prior November 2013 Board decision assigned little probative value to the February 2010 VA examination because the examiner did not diagnose the Veteran with PTSD based on the lack of a traumatic event in service even though the stressor had been verified and conceded. However, that was in the context of a service connection claim. Here, the February 2010 VA examination is still useful in analyzing the Veteran’s psychiatric symptomatology as observed by the examiner. The Veteran’s February 2009 private examination and February 2010 VA examination show that the Veteran demonstrated an ability to function independently, was consistently reported as alert and oriented, and maintained prober hygiene. The Veteran also had established and maintained relationships with his wife, children, and friends. The evidence does not show symptoms associated with a 70 percent rating: 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; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. The absence of these symptoms is not outcome determinative. However, the Veteran also failed to show other symptoms of similar severity, frequency, and duration. Therefore, the Veteran does not meet the level of severity of the symptomatology required for a 70 percent rating, i.e. occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. See Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although the Veteran’s irritability may reflect an impairment of impulse control, the Veteran has not shown symptomatology of deficiencies in most areas, particularly, work, judgment, thinking, or mood such that his symptoms equate to the severity, frequency, and duration of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant spatial disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective relationships. The Board acknowledges that the Veteran reported some suicidal and homicidal ideation at the February 2009 private examination. However, the examination indicates that “[s]pecific means, plans, time frames, and imminent intent for either were denied[.]” Further, the only indication of homicidal ideation discussed was occasional road rage, not a continuing ideation. Notably, the Veteran does not have any legal history or behavioral incidents at work. Furthermore, he denied any suicidal thoughts at the February 2010 VA examination. Based on the foregoing, the Board finds that the Veteran did not have suicidal ideation related to his service-connected PTSD prior to December 18, 2013, and thus his rating was not consistent with a 70 percent rating prior to that date. In accordance with Fenderson, supra, staged ratings have been considered, but because the Veteran’s disability was fairly consistent from the February 2009 effective date until December 18, 2013, a staged rating is not warranted. In summary, the evidence of record does not support symptoms of such frequency, severity, or duration to warrant the next higher, 70 percent disability rating, for PTSD prior to December 18, 2013. Therefore, a rating in excess of 50 percent is denied. 38 C.F.R. 4.130, Diagnostic Code 9411. From December 18, 2013 Upon review of the evidence of record, the Board finds that an initial rating in excess of 70 percent is not warranted for the Veteran’s service-connected PTSD from December 18, 2013. The evidence from the December 2013 private examination and the April 2015 VA examination reflect that his mental disability more nearly approximates a 70 percent rating for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. See Mauerhan v. Principi, 16 Vet. App. 436. In so concluding, the Board finds particularly persuasive both psychological examination reports, which reflect that the Veteran experienced symptoms of suicidal ideation, hypervigilance, anxiety, and depression, as well as flashbacks, nightmares, chronic sleep impairment, panic attacks, mild memory loss, slowed speech, difficulty adapting to stressful situations, episodes of neglect of personal appearance and hygiene, and impaired impulse control. The Board has considered whether a 100 percent rating is warranted for the Veteran’s PSTD since December 18, 2013. The evidence does not show symptoms associated with a 100 percent rating: 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 absence of these symptoms is not outcome determinative. However, the Veteran also failed to show other symptoms of similar severity, frequency, and duration. Therefore, the Veteran does not meet the level of severity of the symptomatology required for a 100 percent rating, i.e. total occupational and social impairment. See Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although the Veteran’s medical history includes some evidence of difficulty maintaining hygiene, the record indicates that the Veteran can care for his hygiene upon his wife’s request and he has not shown symptomatology of deficiencies in most areas, particularly, work, judgment, thinking, or mood such that his symptoms equate to the severity, frequency, and duration of persistent delusions or hallucinations; gross impairment in thought processes or communication; 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; or memory loss for names of close relatives, own occupation, or own name. Therefore, the evidence of record simply does not support symptoms of such frequency, severity, or duration to warrant a 100 percent disability rating for PTSD since December 18, 2013. 38 C.F.R. 4.130, Diagnostic Code 9411. In addition, the Board notes that in accordance with Fenderson, supra, staged ratings have been considered, but because the Veteran’s disability was fairly consistent throughout the period on appeal, a staged rating is not warranted. In denying higher ratings for the Veteran’s PTSD, the Board acknowledges that in various statements the Veteran has asserted he is entitled to a 100 percent rating for his PTSD based on the Global Assessment Functioning (GAF) score of 39, that was assigned to him in his private evaluations in February 2010 and May 2015. However, in Golden v. Shulkin, 29 Vet. App. 221, 225 (2018), the United States Court of Appeals for Veterans Claims (Court) held that the Board was in error when it used GAF scores to assign a psychiatric rating in cases where the DSM-5 applied, given that the DSM-5 abandoned the GAF scale and that VA had formally adopted the DSM-5. By way of background, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). Here, the Veteran’s claim was not certified to the Board until June 2015. Therefore, the DSM-5 applies to his claim and GAF scores are therefore not for consideration. See Golden, 29 Vet. App. at 225 (“[A]n adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness.”). (Continued on the next page)   For the forgoing reasons, the Board finds that since December 18, 2013, the Veteran’s service-connected PTSD does not warrant a disability rating in excess of 70 percent. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Shah, Associate Counsel