Citation Nr: 19142829 Decision Date: 06/05/19 Archive Date: 06/04/19 DOCKET NO. 15-04 580 DATE: June 5, 2019 ORDER Prior to January 24, 2019, a rating of 70 percent (but no higher) for posttraumatic stress disorder (PTSD) is granted. From January 24, 2019, a rating greater than 70 percent for PTSD is denied. FINDINGS OF FACT 1. Prior to January 24, 2019, the Veteran’s PTSD symptoms more nearly approximated have more nearly approximated occupational and social impairment, with deficiencies in most areas. The Veteran’s symptoms included infrequent suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), sleep impairment, dreams and avoidance of stimuli associated with reported trauma, confusion about whether he was still in Vietnam (disorientation to time and place, inability to recall important aspects of trauma, short-term memory deficiencies, depressed mood, diminished interest and pleasure, psychomotor agitation, fatigue, feelings of worthlessness and guilt, intrusive thoughts, hypervigilance, poor concentration and difficulty in establishing and maintaining effective relationships. 2. Since January 24, 2019, the Veteran’s PTSD symptoms have more nearly approximated occupational and social impairment, with deficiencies in most areas. The Veteran’s symptoms include: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty maintaining effective work and social relationships, difficulty adapting to stressful circumstances and suicidal ideation. CONCLUSIONS OF LAW 1. Prior to January 24, 2019, the criteria for a disability rating of 50 percent (but no higher) for PTSD were met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code 9411 (2017). 2. Since January 24, 2019, the criteria for a disability rating greater than 70 percent for PTSD are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the Army from August 1969 to March 1972. This matter is before the Board of Veterans Appeals (Board) on appeal from a January 2012 rating decision. Increased Ratings A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD Legal Criteria PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent evaluation is warranted for 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). Id. A 50 percent evaluation 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. Id. A 70 percent evaluation is warranted 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. Id. A 100 percent evaluation is warranted for 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. 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). The Secretary of VA has determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The RO certified the Veteran’s appeal to the Board after that date; thus, DSM-5 is the governing directive and Global Assessment of Functioning (GAF) scores have not been considered. See Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet. Claims LEXIS 202 (Vet. App. Feb. 23, 2018). Factual Background During a February 2011 VA examination, the Veteran described fits of rage and periods of depression with a daily lack of motivation. He described a poor relationship with his children that is strained. He also noted a tendency to “verbally assault” VA medical center (VAMC) employees. The Veteran’s documented symptoms were suicidal ideation, impaired impulse control, sleep impairment, dreams and avoidance of stimuli associated with reported trauma, confusion about whether he was still in Vietnam while in the hospital following his heart surgery and distress or reaction to internal and external cues and events. His symptoms were described as being “mild” and no impact on employment was noted. The Veteran was noted to have almost no relationships with friends or family, he speaks to one of his sons once a month. A February 2011 lay statement from the Veteran’s wife describe his symptoms as depression, paranoia, irrational suspicions of everyone including family members, insomnia, inability to maintain interpersonal relationships, hypervigilance, being easily startled by certain noises and smells, being verbally abusive and confusion as to time and place. A May 2011 PTSD and therapy evaluation noted outbursts of anger and irritability, a strained relationship with family members, sense of foreshortened future, inability to recall important aspects of trauma, depressed mood, diminished interest and pleasure, psychomotor agitation, fatigue, feelings of worthlessness and guilt, and poor concentration. An October 2011 psychological evaluation noted recurrent intrusive images or thoughts about in-service trauma, recurrent distressing dreams about the trauma, flashbacks, disassociations, intense distress at exposure to cues, physiological reactivity on exposure to cues, efforts to avoid thoughts and feeling associated with the trauma, diminished interest and participation in activities, restricted range of affect, feelings of detachment, restricted range of affect, difficulty sleeping, difficulty concentrating, exaggerated startle response. Progress notes through August 2013 indicate that the Veteran suffered from flashbacks, recurrent distressing dreams and recurrent intrusive images or thoughts about the trauma. During a January 2019 VA examination, the Veteran was noted to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and or mood. On evaluation, the Veteran’s PTSD was characterized by the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty maintaining effective work and social relationships, difficulty adapting to stressful circumstances and suicidal ideation. The examiner noted that the Veteran should be considered an increased but not current risk for harming himself. The Veteran displayed the ability to complete daily tasks such as maintaining his law, preparing sandwiches and going to doctors appointments. It was noted that the Veteran quit his job working at his wife’s travel agency because of “anger issues” caused by his PTSD. A January 2019 lay statement from the Veteran’s son stated that the Veteran has also exhibited some disorientation as to time or place; at times forgetting the reason the walked into a room. The Veteran was also noted to “drift off” and often has violent outbursts when disturbed. It was also noted that the Veteran is recently divorced due to the severity of his symptoms. Analysis A. Prior to January 24, 2019 The Board finds that prior to January 24, 2019, the objective medical evidence and lay statements regarding the Veteran’s symptoms approximate the criteria associated with a 70 percent disability evaluation productive of occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking or mood). Throughout this period, the Veteran’s symptoms included suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), sleep impairment, dreams and avoidance of stimuli associated with reported trauma, confusion about whether he was still in Vietnam (disorientation to time and place), inability to recall important aspects of trauma, short-term memory deficiencies, depressed mood, diminished interest and pleasure, psychomotor agitation, fatigue, feelings of worthlessness and guilt, intrusive thoughts, hypervigilance, poor concentration and difficulty in establishing and maintaining effective relationships. The Board acknowledges that the March 2011 VA examination reported that the Veteran’s employment, activities of daily living, routine responsibilities and schooling were not being affected by his PTSD symptoms, and that only mild to moderate impacts on his family role, relationships and quality of life were noted. Additionally, the May 2011 psychological evaluation noted no significant deficits in regular activities in daily living or social activities. While these results belie a finding that the Veteran’s PTSD symptoms caused deficiencies in most areas, the Board concludes that, when viewed as a whole, the severity, frequency, and duration of the above-listed symptoms caused deficiencies in most areas of the Veteran’s life (including work, family relations, judgment, thinking and mood). In particular, the Board draws attention to the Veteran having to quit his last job in 2001 due to anger issues caused by his PTSD (work deficiency); becoming nearly completely socially isolated from his friends and family, including being recently divorced due to the severity of his symptoms (family relations deficiency); and having a constant depressed mood (mood deficiency). Thus, the criteria for a 70 percent rating for PTSD was met during this period. DC 9411. B. From January 24, 2019 The Veteran was granted a 70 percent rating for PTSD in a February 2019 rating decision. The Board finds that since January 24, 2019, the objective medical evidence and the lay statements regarding the Veteran’s disability picture more nearly approximate the criteria associated with a 70 percent disability evaluation productive of occupational and social impairment, with deficiencies in most areas. As noted above, the January 2019 examiner noted that the Veteran’s PTSD symptoms are manifested by occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). On evaluation, the Veteran’s PTSD was characterized by the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty maintaining effective work and social relationships, difficulty adapting to stressful circumstances and suicidal ideation. Moreover, throughout the period on appeal, the Veteran has not exhibited the factors contemplated by a 100 percent rating, or total occupational and social impairment, such 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. DC 9411. While this is not an exhaustive list of the symptoms warranting a 100 percent rating, the Board finds that, as a whole, the Veteran’s symptoms have not exhibited sufficient severity, frequency, and duration resulting in total occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Thus, the criteria for a 100 percent evaluation are not met during this period and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McKone, Attorney for the Board