Citation Nr: 19149122 Decision Date: 06/24/19 Archive Date: 06/24/19 DOCKET NO. 12-04 901A DATE: June 24, 2019 ORDER A rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD), chronic and severe, with major depressive disorder (MDD), severe, and psychotic features (psychiatric disorder) prior to November 5, 2016 is granted. FINDINGS OF FACT 1. Prior to November 5, 2016, the Veteran’s psychiatric disorder has been manifested by symptoms equivalent in severity to difficulty adapting to stressful circumstances, resulting in deficiencies in most areas. 2. Prior to November 5, 2016, it is not ascertainable that the Veteran’s psychiatric disorder was manifested by symptoms such as, or equivalent in severity 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; or memory loss for names of close relatives, own occupation, or his own name.   CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for the Veteran’s psychiatric disorder prior to November 5, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.130 (2018). 2. The criteria for a rating higher than 70 percent for the Veteran’s psychiatric disorder prior to November 5, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.130 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in September 2015. A transcript is of record. The Board remanded this case for additional development in December 2015. In a March 2017 decision, the RO granted a 100 percent rating for the Veteran’s psychiatric disorders effective November 5, 2016, the date of a VA examination report. In an April 2018 decision, the Board, in pertinent part, denied a rating higher than 50 percent for the Veteran’s service-connected psychiatric disorders for the period prior to November 5, 2016. In a December 2018 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR), and vacated the Board’s April 2018 decision to the extent it denied a rating higher than 70 percent for the Veteran’s psychiatric disorder prior to November 5, 2016. The Court remanded the case for further action consistent with the terms of the joint motion. In the JMPR, the parties agreed that the Board did not adequately address whether the findings in the November 2016 VA examination report supported a higher rating prior to the date of that report. In its April 2018 decision, the Board also remanded the issues of entitlement to a rating higher than 20 percent for residuals of a shell fragment wound of the left chest with retained foreign bodies and pleurisy; entitlement to a rating higher than 10 percent for residuals of a shell fragment wound of the right lower leg prior to November 7, 2016, and a rating higher than 20 percent as of that date; and entitlement to total disability rating based on individual unemployability due to service connected disabilities (TDIU). These issues are still pending at the agency of original jurisdiction, and have not been transferred back to the Board. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2018). The percentage ratings represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2018). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). PTSD, Chronic and Severe, with MDD, severe, and Psychotic Features The Veteran states that his service-connected psychiatric disorder satisfies the criteria for a rating of at least 70 percent for the entire period prior to November 5, 2016. For the following reasons, the Board finds that a 70 percent rating is warranted prior to November 5, 2016. A. Rating Criteria The Veteran’s service-connected psychiatric disorder is rated under Diagnostic Code (DC) 9411, which pertains to PTSD. 38 C.F.R. § 4.130. Almost all mental health disorders (with exceptions not applicable here) are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. Under the General Rating Formula, a 10 percent disability rating requires: 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 continuous medication. A 30 percent disability rating requires: 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, or recent events). A 50 percent disability rating requires: 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. A 70 percent disability rating requires: 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; inability to establish and maintain effective relationships.) A 100 percent disability 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; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather 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, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. Rather, VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). Id. at 443; see 38 C.F.R. § 4.130. (The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has amended certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014). The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014; they do not apply to appeals already certified to the Board or pending before the Board. Id.) If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Accordingly, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126(b). For claims to which the DSM-IV applies, as is the case here, VA also considers a claimant’s Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the DSM-IV reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. While an examiner’s classification of the level of psychiatric impairment as reflected in a GAF score can be probative evidence, such a score is by no means determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2017); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the Veteran’s symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner’s assessment of the level of disability at the time of examination. See 38 C.F.R. § 4.126. B. Factual Background In an April 2010 statement, the Veteran wrote that he had lack of concentration, increased memory loss, and lack of ability to recall details of facts, people, and places. He further wrote that he was easily startled, felt alone, and that most people were against him. He stated that he was fired from his last several jobs due to not performing his duties and the inability to concentrate, work, and cooperate with co-workers. He also stated that he had increased flashbacks and nightmares regarding his Vietnam experiences, which caused him to not sleep and be more jumpy and nervous each day. A May 2010 VA examination report reflects that the Veteran reported that his psychiatric symptoms included anxiety, tension, irritability and quick temper present much of the time. He described being hyper alert most of the time and that he had recurrent intrusive thoughts of combat experience daily. In addition, the Veteran stated that he had panic attacks associated with agoraphobia. He reported that he had insomnia most nights and frequently did perimeter checks. He also stated that he had depression and anhedonia much of the time. The Veteran further stated he rarely had suicidal ideations, and had no plan or intent. The Veteran stated he had an impaired memory and concentration, and felt tired most of the time. His social ability was limited. He denied having auditory or visual hallucinations and had no thoughts of harming himself or others. On mental status examination, the examiner observed that the Veteran was oriented to time, place, person and purpose. He was neatly dressed in casual clothing and fairly groomed. There was no evidence that he was overtly intoxicated, odor of alcoholic breath or slurred speech. There was also no evidence of drowsiness or ataxia. The examiner noted that the Veteran was polite, cooperative and reliable. His mood was described as serious and depressed. There was no evidence of agitation or psychomotor retardation. He was limited in his spontaneity and eye contact. Additionally, there was no evidence of panic attacks or obsessive rituals. The examiner further observed that the Veteran’s thought content was anxious and depressive; consistent with mood and circumstances. There was no evidence of a thought disorder. The Veteran’s memory and concentration were normal evidenced by his ability to do serial seven subtractions and to recall three of three objects. The examiner commented that the Veteran was well-focused and answered all questions promptly and appropriately. The Veteran denied having psychotic symptoms. In addition, the examiner noted that the Veteran’s judgment and thinking were intact and there was no impaired reality testing. The examiner diagnosed the Veteran with PTSD, depressive order, not otherwise specified (NOS), panic disorder with agoraphobia and alcohol dependence. He characterized the Veteran’s psychiatric symptoms as moderate-to-serious with impairment in social and occupational functioning. The examiner also stated that the Veteran had no mental impairment with respect to activities of daily living. He noted that the Veteran was married for 25 years to his wife and that they had three children. The reported that he got along well with his family and friends. He also stated that he handled his own activities of living, and did his share of the housework, shopping and cooking. In an April 2011 statement, the Veteran wrote that he was informed by a company that previously hired him that his job was terminated due to poor performance reviews, poor work performance, and a lack of ability to communicate effective with other team members, as well as a “lack of skill to complete the assigned responsibilities to hold a stressful job.” He stated he believed these issues were due to his PTSD. The May 2011 VA examination report reflects that the Veteran had symptoms of feeling jumpy; irritable; anxious; feeling uncomfortable around crowds; and anger issues. The examiner noted that the severity of the Veteran’s symptoms was mild. In addition, the Veteran stated that his symptoms were episodic; fluctuating or waxing and waning. He further indicated that the symptoms affected his total daily functioning, which resulted in feeling that he did not have any good positive relationships. He denied having trouble sleeping. There was also no history of violent behavior or suicide attempts. The examiner noted that the Veteran did not receive treatment for his psychiatric disorder and there was no history of him being hospitalized for psychiatric reasons. He described his current relationship with his father as “neutral” and they speak three times a week. The Veteran also reported that his current relationship with his second wife of 25 years was “poor” and that he had a difficult relationship with his three adult sons that lived with him. On mental status examination, the examiner observed that the Veteran’s orientation was within normal limits. His appearance, hygiene and behavior were described as appropriate. He maintained good eye contact and his speech was within normal limits. His affect and mood were normal. Additionally, the examiner observed that the Veteran’s concentration was within normal limits. There was no evidence of panic attacks or suspiciousness. He denied having a history of delusions and hallucinations and none were observed on examination. There was also no evidence of obsessive or compulsive behavior. She further observed that the Veteran’s thought processes were appropriate. He was able to understand directions and did not exhibit slowness of thought or appeared to be confused. Moreover, his judgment was not impaired and his abstract thinking was noted as normal. The examiner stated that the Veteran’s memory was within normal limits. Suicidal and homicidal ideations were absent. She commented that there were no behavioral, cognitive, social, affective or somatic symptoms attributed to the Veteran’s PTSD. The examiner confirmed the previous diagnoses mentioned above already but opined that the Veteran’s alcohol dependence was likely related to secondary manifestations of his PTSD. She indicated that the Veteran’s PTSD affected his functional status and quality of life evidenced by his difficulty in personal as well as interpersonal relationships. She also stated that the Veteran’s irritability and agitation make it difficult for him to be able to function around others. The examiner, commented, however that when the Veteran was interested in the relationship, he did well in social interactions. She further noted that the Veteran was competent and had sufficient cognitive skills to adequately handle his financial affairs. The examiner also indicated that mentally, the Veteran did not have difficulty performing activities of daily living. She opined that the Veteran’s psychiatric impairment was best characterized as symptoms that caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform. In reaching this conclusion, the examiner observed that the Veteran’s symptoms included a depressed mood, anxiety, suspiciousness and chronic sleep impairment. She, however, stated that the Veteran was still able to establish and maintain effective work, school and social relationships. The examiner also noted that the Veteran was able to maintain an effective family role functioning; had no difficulty with recreation or leisurely pursuits; and no difficulty with physical health or understanding commands. A November 2014 VA treatment record reflects that the Veteran had a new girlfriend (he and his second wife divorced earlier that year), and would go out to eat with her. He enjoyed golfing for exercise. The Veteran underwent another VA examination in November 2016. At this time, according to the examination report, the Veteran stated that he had worsening depression, and that for the past severe years he experienced auditory hallucinations as well in the form of hearing voices. The examiner noted that the Veteran was cooperative, but visibly depressed with flat affect and moderate psychomotor retardation. The examiner further observed that the Veteran was “rather odd and bizarre,” coming to the examination in full military regalia, but with his personal hygiene very poor with unkempt hair. His eye contact was minimal, and there were periods of time when the Veteran was mute and totally detached from the examiner. He had the appearance of the “chronically mentally ill,” and it was apparent that he had had significant psychiatric issues for many years. The examiner found that the Veteran’s symptoms included gross impairment in thought processes or communication, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, persistent delusions or hallucinations, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner diagnosed PTSD, chronic and severe, alcohol abuse, and major depressive disorder, severe, with psychotic features. The examiner stated that the Veteran’s PTSD caused various depressive disorders and substantive abuse issues, and that the symptoms overlapped so that it was not possible to differentiate which symptoms were attributable to which diagnosis. The examiner found that the Veteran’s symptoms caused total occupational and social impairment. A December 2016 VA treatment record reflects that the Veteran was well-groomed. A December 2018 VA treatment record reflects that the Veteran denied auditory hallucinations. In an April 2019 statement, the Veteran wrote that he had not been able to maintain substantially gainful employment since 2010, and had been laid off from his last position due to poor work performance. He stated that he had a very difficult time remembering details, and that his PTSD affected his ability to concentrate for extended periods. He noted that he and his second wife had divorced in 2014, and that he lived a very isolated life, spending most of his time alone and indoors. He avoided interacting with other people. Regarding hygiene, the Veteran stated that he has to go to a laundromat to do his laundry, and so he wore the same outfits multiple times in a rotation to minimize the amount of times he needed to do laundry. Moreover, as he left his home so infrequently, he would often go days at a time without showering or shaving. He also wore his hair long as he did not “care for getting a haircut.” C. Analysis The Board finds that a 70 percent rating is warranted for the period prior to November 5, 2016 based on symptoms equivalent in severity to symptoms such as difficulty in adapting to stressful circumstances, including at work or a work-like setting, which cause deficiencies in most areas. See 38 C.F.R. § 4.130. The Veteran’s statements describe being repeatedly laid off from jobs since 2010 for poor work performance which he ascribes to symptoms such as difficulty concentrating and cooperating with co-workers. The Board finds these statements credible and consistent with the symptoms he reported at the VA examinations. The April 2010 examiner found that the Veteran had moderate-to-serious symptoms with impairment in social and occupational functioning. The May 2011 VA examiner found that the Veteran’s irritability and agitation made it difficult for him to be able to function around others. While the examiner found that the Veteran could still establish and maintain effective work, school and social relationships, the Board finds this is at odds with the Veteran’s statements describing a more severe degree of occupational impairment. With regard to social functioning, the Veteran described his relationship with his wife as “poor” at the time of the May 2011 examination, and they later divorced in 2014. He also reported a difficult relationship with his sons. Subsequent statements by the Veteran reflect that he tends to avoid interacting with others and lives alone. The Board does not rely solely on the examiner’s assessment of the level of disability at the time of examination. See 38 C.F.R. § 4.126. When the record is viewed as a whole, the Board finds that the balance of the evidence supports a finding that his service-connected psychiatric disorder more nearly approximated the criteria for a 70 percent rating prior to November 5, 2016, resolving reasonable doubt in favor of the Veteran. See 38 C.F.R. §§ 4.3, 4.7. The Board finds that the criteria for a 100 percent rating have not been met prior to November 5, 2016. While the November 2016 examiner found that the Veteran had symptoms corresponding to a 100 percent rating such as gross impairment in thought processes or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, and inability to maintain minimal hygiene, it is not factually ascertainable that this degree of impairment was present prior to the November 2016 examination. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Prior to the November 2016 VA examination, there are no statements, treatment records, or other evidence showing that the Veteran had the above-mentioned symptoms. The Veteran has not reported such symptoms prior to or since the November 2016 examination. The earlier VA examination reports show that the Veteran’s thought process and content were normal. The Veteran stated in his April 2019 statement that he wore the same outfits multiple times to avoid going out to the laundromat, and that he would go days without showering or shaving because he left his house so infrequently. While this statement shows neglect of personal hygiene, it does not show an inability to maintain personal hygiene. On the contrary, it shows a choice based on considerations such as the inconvenience of going to the laundromat and the fact that the Veteran was not seeing other people. The fact that the Veteran preferred to keep his hair long as he did not like haircuts similarly does not show an inability to maintain personal hygiene prior to November 2016. Similarly, the Veteran did not report hearing voices in previous examinations or statements, and did not report that symptom in the April 2019 statement. While he did state at the November 2016 VA examination report that he had been hearing the voices for the past several years, and while the VA examiner observed that the Veteran had apparently been suffering from significant psychiatric issues for many years, this evidence is simply not sufficient to establish an ascertainable increase prior to November 2016. Indeed, he denied auditory hallucinations in a December 2018 VA treatment record, and did not report hallucinations in the April 2019 statement. The examiner’s findings seem largely predicated solely on the Veteran’s subjective report, with no attempt to correlate them with or at least consider his earlier history as shown in prior VA examination reports and treatment records. The Board of course does not disturb the assignment of a 100 percent rating as of November 5, 2016, but finds that the November 2016 VA examination report in itself does not establish such symptoms prior to the date of that report to warrant an earlier effective date for the award of the 100 percent rating. The evidence does not show that the Veteran’s symptoms otherwise were equivalent in severity to those corresponding to a 100 percent rating prior to November 5, 2016. Rather, symptoms such as neglect of personal appearance and hygiene are readily captured by the criteria for a 70 percent rating. See 38 C.F.R. § 4.130. Thus, as the preponderance of the evidence weighs against symptoms equivalent in severity to those corresponding to a 100 percent rating prior to November 5, 2016, the criteria for a 100 percent rating are not satisfied prior to that date. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Board notes that in its April 2018 decision, it remanded the issue of entitlement to TDIU as intertwined with other claims it remanded in that decision. The Board did not direct further evidentiary development with regard to the TDIU issue, including further development relevant to the severity of the Veteran’s psychiatric disorder. There is no indication that further action by the agency of original jurisdiction (AOJ) on the TDIU issue would affect the Board’s conclusion that the Veteran’s psychiatric symptoms did not satisfy the criteria for a 100 percent rating prior to November 5, 2016. Accordingly, the Board finds that it is not premature to adjudicate this issue at this juncture. Cf. Brambley v. Principi, 17 Vet. App. 20 (2003). Because the preponderance of the evidence weighs against a rating higher than 70 percent for the Veteran’s psychiatric disorder prior to November 5, 2016, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.