Citation Nr: 20002979 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 08-23 036 DATE: January 14, 2020 ORDER Entitlement to an effective date prior to November 26, 2002, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial disability rating in excess of 50 percent for PTSD from November 26, 2002, to November 20, 2007, is denied. Entitlement to an initial disability rating of 70 percent for PTSD from November 20, 2007, but no earlier or higher, is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran submitted a claim of service connection for PTSD on September 1, 1981, but was not diagnosed with PTSD until on or after November 26, 2002. 2. From November 26, 2002, to November 20, 2007, the preponderance of the evidence showed that the Veteran’s PTSD was not manifested by at least occupational and social impairment with deficiencies in most areas. 3. From November 20, 2007, the preponderance of the evidence shows that the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than November 26, 2002, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.303, 3.304, 3.400. 2. The criteria for a rating in excess of 50 percent for PTSD from November 26, 2002, to November 20, 2007, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a 70 percent rating for PTSD from November 20, 2007, but no earlier or higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 1969 to September 1971 with the award of the Combat Infantry Badge for his service in the Republic of Vietnam. In January 2011, the Veteran testified before the undersigned at a hearing at the regional office (RO). A transcript of that hearing has been associated with the file. In September 2011, the Board of Veterans’ Appeal (Board) remanded the claims for an earlier effective date for the grant of service connection for PTSD as well as an increased rating for PTSD for additional development. In an April 2014 decision, the Board granted an earlier effective date of November 26, 2002, for service connection for PTSD and remanded the claims for an increased rating for PTSD and for entitlement to a TDIU for further development. As to the claim for an earlier effective date for service connection for PTSD, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2015 order, the Court incorporated the parties May 2015 Joint Motion for Remand (JMR) and vacated and remanded this claim. In July 2015, the Board remanded the claim for an earlier effective for service connection for PTSD to obtain a retroactive medical opinion as to when the pre-November 26, 2002, record first showed the Veteran met the criteria for a diagnosis of PTSD. As to the claim for a higher rating for PTSD, while this issue was in remand status the regional office (RO) granted a 70 percent rating for PTSD effective from October 2, 2015. In June 2017, the Board remanded the claims for an effective date earlier than November 26, 2002, for service connection for PTSD, the claim for an increased rating for PTSD, and the claim for a TDIU for additional development. As to the earlier effective date claim, this issue was remanded to again obtain a retrospective medical opinion as to when the pre-November 26, 2002, record first showed the Veteran met the criteria for a diagnosis of PTSD. In February 2018, the Board denied the TDIU claim and remanded the claims for an earlier effective date for the grant of service connection for PTSD and entitlement to increased ratings for PTSD for additional development. As to the earlier effective date claim, this issue was remanded to again obtain a retrospective medical opinion as to when the pre-November 26, 2002, record first showed the Veteran met the criteria for a diagnosis of PTSD. As to the claim for a TDIU, the Veteran appealed the February 2018 Board decision to the Court. In a subsequent November 2018 order, the Court incorporated the parties October 2018 JMR and vacated and remanded this claim. In May 2019, the Board remanded the claim for a TDIU for additional development. As to the claims for an earlier effective date for the grant of service connection for PTSD and entitlement to increased ratings for PTSD, the Board finds as will be explained in more detail below, that there was substantial compliance with the JMR and Board remands. Therefore, the Board again finds that these issues are ready for appellate review. As to the claim for a TDIU, the record shows that the post-remand development has not been completed and this issue has not again been certified to the Board. Therefore, the Board finds that no further action as to this claim needs to be taken at this time. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). Substantial Compliance with the JMR and the Board Remands As to the claim for an earlier effective date for the grant of service connection for PTSD, the Board notes that in July 2015, June 2017, and February 2018 the Board remanded this claim to, among other things, obtain a retrospective medical opinion as to when, if ever, the pre-November 26, 2002, record first showed the Veteran met the criteria for a diagnosis of PTSD. Specifically, the February 2018 remand included the following request: Regarding the retrospective opinion, the examiner must review the Veteran’s claims file, including the service treatment records, personnel records, post-service medical records, the Veteran’s January 2011 hearing testimony, and any other information deemed pertinent, to include witness statements. Additionally, a review of the Joint Motion from the Court may help the examiner understand why the Board is requesting this “retrospective opinion”. The examiner should determine, based on the Veteran’s military, medical, and psychiatric history, whether a PTSD diagnosis according to the DSM criteria in effect from 1981 to 2002 had become manifest any earlier than November 2002. If so, the examiner should identify when the diagnosis was first present, the severity of his symptoms, and the impact of the symptoms on employability. In rendering the opinion, the examiner should address the following: (a) the Veteran’s report that his symptoms began in August 1970 and the significance of that date (if any); (b) the circumstances of the Veteran’s discharge, to include addressing pertinent personnel records, such as performance reviews and disciplinary reports, if available; (c) the Veteran’s report to medical providers in November 2002 that his symptoms began earlier; (d) the Veteran’s informal claim submitted in September 1981 requesting evaluation for ‘after stress reaction nerves;’ (e) lay statements attesting to the Veteran’s mental state prior to 2002; and (f) the significance, if any, of his incarceration. The examiner should provide a complete rationale for all opinions provided. If the examiner cannot provide any requested opinion without resorting to speculation, the examiner should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. If the requested opinions cannot be provided without additional examination of the Veteran, such an examination should be provided. In this regard, it is very important for the Veteran to understand that the obtaining of a “retrospective opinion” is inherently challenging, and in some cases simply impossible. The Board’s history regarding successfully obtaining these types of medical opinions has been generally very poor, for a series of reasons. In any event, after a review of the record on appeal and/or an examination of the Veteran as well as after considering, among other things, criteria (a) to (f) listed above the October 2015, October 2017, and August 2018 VA examiners all opined that without resorting to speculation they could not provide the retrospective medical opinion as to when, if ever, the record showed that the Veteran met the criteria for a diagnosis of PTSD earlier than November 26, 2002. In support of their conclusion, all three examiners cited to, among other things, their examination of the Veteran and/or the appellant’s medical history as documented in the claims file and concluded that neither was sufficient to document any date earlier than November 26, 2002, for when the claimant first met the criteria for a diagnosis of PTSD. Give the above VA examiners opinion the Board finds that, as the VA examiners must have found, that the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) given the medical records available to the VA examiner. Moreover, while the Board has considered remanding the appeal a 4th time to obtain the retrospective medical opinion, it finds that given the existing record no useful purpose would be served by such a remand. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). There is simply no reason in this record to believe that a 4th remand would be successful, in any way. Therefore, while the record does not contain a retrospective medical opinion as to when, if ever, the record showed that the Veteran met the criteria for a diagnosis of PTSD earlier than November 26, 2002, the Board nonetheless finds that there was substantial compliance with the JMR and three Board remands. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). As to the earlier effective date claim and the claim for increased ratings for PTSD, the Board also finds that there was substantial compliance with the Board’s remand requests because the post-remand records shows that the AOJ obtained and associated with the record all identified and available evidence including any outstanding VA treatment records, service personnel records, treatment records from the Veteran’s place of incarceration, and Social Security Administration records. See 38 U.S.C. § 5103A(d); Stegall, supra; D’Aries, supra. As to West Palme Beach VA Medical Center psychiatric evaluation from 1985, the Board notes that while the Veteran testified that he had a psychiatric examination at the West Palme Beach VA Medical Center in 1985, the post-remand record shows that in September 2011, January 2012, September 2015, June 2016, and August 2016 the Medical Center notified VA that no such record was available and the Veteran was notified of this response in October 2011 and February 2012. In November 2011, the RO prepared a memorandum of unavailability. Therefore, the Board finds that no further action needs to be taken to attempt to obtain these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the “‘duty to assist’ is not a license for a ‘fishing expedition’ to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim”). In this case, the records simply do not exist and can not be obtained. Similarly, while the Veteran reported that he received SSA disability, the SSA in March 2015 notified VA that the medical records supporting the SSA decision were not available because they had been destroyed. Likewise, as to medical records from his place of incarceration, a review of the record on appeal does not reveal that the Veteran ever provided VA with authorizations to request these records. Therefore, the Board finds that his appeal can be adjudicated without these records. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) (holding that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence”). Entitlement to an effective date prior to November 26, 2002, for the grant of service connection for PTSD. The appellant claims, in substance, that he is entitled to service connection for PTSD prior to November 26, 2002, because his claim has been pending since September 1981 and he had observable symptoms of PTSD since August 1970. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). While the laws and regulations governing what is a “claim” or “application” for VA benefits have since been changed, during the time period covered by this appeal, the term “claim” or “application” meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. In this regard, it is well settled that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. With the above criteria in mind, the record shows that in a May 2006 rating decision the RO granted the Veteran service connection for PTSD effective from October 5, 2005. The RO assigned the October 5, 2005, effective date because it believed that it was the Veteran’s date of claim. However, as noted above, for the time-period in question any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. See 38 C.F.R. § 3.1(p). In this regard, a detailed review of the evidence of record by the Board shows that the Veteran on September 1, 1981, submitted an informal claim for “after stress reaction nerves” and requested a VA evaluation of this condition. However, because of the character of the Veteran’s discharge at that time, which character has since been upgraded, it appears from the record that the RO never took any action on this claim for PTSD until May 2006. On December 30, 2019, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in Brown v. Wilkie, No. 18-4508, holding that 38 U.S.C. § 5303(a) operates as a bar to benefits based on any part of the period of service where an officer is discharged only once from his or her period of service based on resignation for the good of the service, and no exceptions apply. Where a discharge for a period of service triggers a statutory bar to benefits under 38 U.S.C. § 5303(a), this operates as a bar to benefits based on any part of that period of service. It is not clear that the Brown decision is applicable to this case. Notwithstanding the above, assuming, arguendo, that the Brown does not apply (which is unclear), giving the Veteran the benefit of the doubt, the Board will assume that his September 1981 statement acted his claim for PTSD. Thereafter, the Board finds the Veteran’s claim of service connection for PTSD had been pending since September 1, 1981. Because the effective date of an award of compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later, and because the Veteran’s claim has been pending since September 1981, the Board will next address when the record establishes service connection for PTSD at some time between the date of claim (i.e., September 1981) and the effective date already assigned by the Board in the April 2014 decision which finding was not disturbed by the Court in its June 2015 order (i.e., November 26, 2002). See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this regard, controlling laws and regulations provide that service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Specifically, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Regulations also provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran’s service, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. “[F]ear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39,843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above criteria in mind, the Board finds that a detailed review of the record does not reveal that the met the criteria of a diagnosis of PTSD until on or after November 26, 2002. See Owens, supra. In this regard, while a review of the record on appeal reveals September 2002 and November 2002 VA treatment records that first document the Veteran’s seeking treatment for symptoms he believes are due to PTSD, these records do not diagnosis him with PTSD but instead diagnosed possible PTSD (see VA treatment records dated September 10, 2002, November 6. 2002) and a mood disorder (see VA treatment records dated in November 5, 2002). Moreover, and as explained above, the Board on three (3) occasions remanded the appeal to obtain a retrospective medical opinion as to when, if ever, the record showed that the Veteran met the criteria for a diagnosis of PTSD earlier than November 26, 2002, and the examiners all opined that it was not possible to provide the opinion without resorting to speculation. Lastly, while the Veteran has claimed that he had observable symptoms of PTSD since August 1970 the Board finds that he is not competent to provide an earlier diagnosis of PTSD because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., when did he first meet the criteria for a diagnosis of PTSD). See Davidson, supra. Simply stated, he can not diagnose himself with PTSD, and tell us when it began. PTSD is an insidious disability, sometimes not emerging in Veterans for decades after service. For this reason, the Board cannot assume the Veteran had PTSD as he left service, or when he filed his claim. Accordingly, while the record shows that the Veteran’s claim of service connection for PTSD was received by VA on September 1, 1981, because the criteria for entitlement to service connection for PTSD did not arise until on or after November 26, 2002 (i.e., the date he was first diagnosed with PTSD), and because the effective date of an award of compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later, the Board finds that the effective date for service connection for PTSD can be no earlier than November 26, 2002, because the record does not show his being diagnosed with PTSD before that time. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. It is important for the Veteran to understand that not all evidence in this cases supports the current findings, let alone what he is requesting. Entitlement to higher initial disability ratings for PTSD. The Veteran claims, in substance, that he meets the criteria for a 70 percent rating or higher for his PTSD at all times since filling his claim. The Veteran’s PTSD is rated as 50 percent disabling from November 26, 2002, to October 2, 2015, and 70 percent from October 2, 2015, under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders [General Formula]). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the 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 a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The General Formula provides a 50 percent rating is warranted when the evidence shows 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 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 PTSD 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 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. 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). Initially, the Board notes that this claim for higher ratings for PTSD continues to be pending before the agency of original jurisdiction on or after August 4, 2014. Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal. See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 (2017). Accordingly, the Board’s adjudication of this claim cannot include any discussion of the Global Assessment of Functioning (GAF) scores found in the record. See Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018). a. From November 26, 2002, to November 20, 2007 As to a disability rating in excess of 50 percent from November 26, 2002, to November 20, 2007, the Board finds that the criteria for a higher rating are not met. In this regard, the Board finds that the most probative evidence of record shows that the Veteran’s PTSD did not cause at least occupational and social impairment with deficiencies in most areas despite his complaints to the March 2006 VA examiner of sleeping problems/nightmares causing fatigue as well as difficulty focusing and concentrating and the examiner’s findings of pressured speech as well as opinion that PTSD occasional interfered with activities of daily living because he cannot hold a job secondary to fear and the VA treatment records also documenting his having problems with a restricted affect and a depressed mood. In this regard, while not exclusive symptomatology, the Board nonetheless finds the fact that the Veteran’s March 2006 VA examiner as well as his treatment records for this period are uniformly negative for his PTSD causing ”... suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or PTSD 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...” weighs against finding that his PTSD caused at least occupational and social impairment with deficiencies in most areas before November 20, 2007. See Owens, supra. In this regard, the March 2006 VA examine specifically opined that the Veteran did not have suicidal or homicidal ideation, his orientation was within normal limits, his appearance and hygiene were appropriate, his communication was within normal limits despite the pressured speech, he did not have panic attacks, he had neither delusions or hallucinations, and his thought process, judgment, abstract thinking, as well as his memory were all normal. The Board finds that this medical opinion provides further evidence against the Veteran’s claim that he met the criteria for a rating in excess of 50 percent for his PTSD at any time before November 20, 2007. In this regard, the Board recognizes the fact that the record shows that the Veteran had not worked since 2002 and the March 2006 VA examiner opined, he cannot hold a job secondary to fear. However, the Board finds the fact that the March 2006 VA examiner also opined that his problem was only occasional and his orientation, appearance, hygiene, communication, his thought process, judgment, abstract thinking, and memory were all normal weighs against finding that his PTSD caused at least occupational and social impairment with deficiencies in most areas before November 20, 2007. See Owens, supra. Lastly, the Board finds that the most probative evidence of record showed that the Veteran’s PTSD did not cause at least social impairment with deficiencies in most areas despite the record showing he was married and divorced because he also reported that he has a fair relationship with his mother and some of his 7 siblings. The above findings do not suggest that the Veteran did not have problems because of his PTSD before November 20, 2007. However, while the Veteran clearly had problems with his PTSD, the only question was the degree of the problem. Without taking into consideration his statements and the problems cited above the 50 percent finding could not be justified based on this medical evidence. See 38 C.F.R. § 4.130; Fenderson, supra; Hart, supra. b. From November 20, 2007 As to a disability rating in excess of 50 percent from November 20, 2007, a November 20, 2007, VA treatment record noted that the Veteran had passive suicidal ideation. Similarly, the subsequent January 2012 and October 2015 VA examiners opined that the Veteran’s adverse symptomatology included suicidal ideation Likewise, the Veteran’s October 2015 VA examination as well as a November 2015 VA treatment records reported that in 1977 and/ot 1987 he had attempted suicide. The Board also notes that at the August 2008 VA examination the Veteran reported that his PTSD caused social isolation, irritability, problems getting along with his family, nightmares, flashbacks. The January 2012 VA examiner also reported that the Veteran’s symptoms included chronic sleep impairment and panic attacks that occur weekly or less often. The October 2015 VA examiner also reported that the Veteran’s adverse symptomatology included a depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and an inability to establish and maintain effective relationships. Similarly, the October 2017 VA examiner reported that the Veteran’s adverse symptomatology included suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and an irritable mood. Tellingly, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). Therefore, when considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the evidence shows that the appellant’s PTSD has approximated the criteria for a 70 percent rating at all times from November 20, 2007. See 38 C.F.R. § 4.130; Fenderson, supra; Hart, supra. As to a rating in excess of 70 percent for PTSD at any time from November 20, 2007, the Board finds that that the most probative evidence of record does not show his PTSD causes total social and occupational impairment despite the problems seen with suicidal ideation seen in the medical records. Tellingly, while the criteria a 100 percent rating specifically identifies problems with being a “persistent” danger of hurting self, the Board finds the fact that the record, including the August 2008, January 2012, October 2015, and October 2017 VA examinations as well as the VA treatment records, is negative for a suicide plan or attempt, weighs heavily against finding that the Veteran’s PTSD causes a “persistent” danger of hurting self despite the suicidal ideation reported in his medical records. See Owens, supra. The Board also finds the fact that the Veteran’s last suicide attempts being in 1977 and/ot 1987 weighs in favor of this conclusion. Likewise, while the criteria for a 100 percent rating also specifically identifies problems with being a “persistent danger of hurting … others,” the Veteran was incarcerated for armed robbery for holding up a bank in 1987 and he told the October 2017 VA examiner that he had a long history of being verbally and physically aggressive, the Board finds the fact that the record, including the August 2008, January 2012, October 2015, and October 2017 VA examinations as well as the VA treatment records, are negative for a plane or attempt to hurt others weighs heavily against finding that the appellant’s PTSD causes a “persistent” danger of hurting others despite what the Veteran told the October 2017 VA examiner. See Owens, supra. Lastly, while not exclusive symptomatology, the Board nonetheless finds the fact that the Veteran’s August 2008, January 2012, October 2015, and October 2017 VA examinations as well as his treatment records are uniformly negative for his PTSD causing problems with “gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; … 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” weighs against finding that his causes total social and occupational impairment. See Colvin, supra. Tellingly, the August 2008 VA examiner even specifically opined that the Veteran’s orientation was within normal limits, his appearance and hygiene were appropriate, his communication was within normal limits, he had neither delusions or hallucinations, and his thought process, judgment, abstract thinking, as well as his memory were all normal. The Board finds that this medical opinion provides further evidence against the Veteran’s claim that he met the criteria for a rating in excess of 70 percent for his PTSD at any time from November 20, 2007. Similarly, the Board finds that the following opinion by the August 2008 VA examiner also weigh’s against finding that the Veteran met the criteria for a rating in excess of 70 percent for his PTSD at any time from November 20, 2007: … He is competent. Mentally, he does not have difficulty performing activities of daily living. He is able to establish and maintain effective work/school and social relationships. He has difficulty maintaining effective family role functioning because he can be confrontational at times. He has no difficulty with recreation or leisurely pursuits … He has no difficulty understanding commands. The claimant does not appear to pose any threat of danger or injury to self or others. Likewise, the Board finds that the following opinion by the October 2017 VA examiner weigh’s against finding that the Veteran met the criteria for a rating in excess of 70 percent for his PTSD at any time from November 20, 2007: [b]ased on claimant’s history and mental status, it is believed that he is capable of understanding and carrying out simple and complex instructions, attending to information, and learning and recalling information with mild cueing. Long-term memory functioning appears intact. Claimant appears able to communicate adequately with others and does not appear to be at high risk for physical aggression toward others at the present time. He appears to be a high risk for verbal aggression based on his own report that he has had a difficult time getting along with others since childhood. Claimant reported he has had a difficult time taking ordered from other people. If employed, he appears capable of working at an average pace, and is not at risk for not persisting with tasks and would not require supervision. He is not at risk for experiencing difficulty adapting to work-related stress. Claimant appears able to manage disability funds, if awarded. Simply stated, as above, it is important for the Veteran to understand that not all the evidence in this case supports the 70 percent finding, let alone a higher rating. There is significant evidence against the current staged evaluations. Next, as to his social impairment, the Board notes that the record documents the Veteran social isolation as well as the fact that he also told his VA examiners that he is divorced, has no significant other, and does not see his friends in person. However, the Board finds the fact that the Veteran told the August 2008, January 2012, October 2015, and/or the October 2017 VA examiners that he lives with his two cousins and keeps in touch with his friends using social media as well as for a time was actively involved with the American Legion and had a fair relationship with his mother before her death as well as a fair relationship with some of his seven siblings and a gets along with his cousins weighs against finding that his service-connected PTSD causes total social impairment at any time from November 20, 2007. Similarly, as to his occupational impairment, the Veteran reported that he had not worked since 2002 because he does not like people or authority. However, the Board finds the fact that the Veteran told the August 2008, January 2012, October 2015, and/or the October 2017 VA examiners that he was involved with the American Legion for many years, has a good working ability with computers, and from 2006 to 2014 cared for his disabled aunt weighs against finding that his service-connected PTSD causes total occupational impairment at any time from November 20, 2007. In this regard, the Board finds it significant that the October 2015 VA examiner opined that, given his impaired interpersonal functioning, the Veteran would do well in an occupation that allows him to work independently and in relative isolation (e.g., home-based computer work) and the October 2017 VA examiner opined that he is not at risk for experiencing difficulty adapting to work-related stress. Tellingly, the Board notes that the criteria for a 100 percent rating requires both total occupational and social impairment and the most probative evidence of record shows that the Veteran’s adverse symptomatology does not cause this level of impairment at any time from November 20, 2007. See Owens, supra. While the Veteran clearly has problems due to his disability (this is not in dispute) which causes significant social and occupational impairment, the only question is the degree of the problem. Without taking into consideration his statements the 70 percent finding could not be justified based on this medical evidence. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran’s PTSD is not manifested by symptomatology that causes total occupational and social impairment at any time from November 20, 2007. Id. Therefore, the Board finds that the criteria for a 100 percent rating are not met for the Veteran’s PTSD at any time from November 20, 2007. See 38 C.F.R. § 4.130; Fenderson, supra; Hart, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.