Citation Nr: 20003237 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 08-36 726 DATE: January 14, 2020 ORDER Entitlement to a disability rating in excess of 30 percent prior to March 17, 2009 for post-traumatic stress disorder (PTSD) is denied. Entitlement to a disability rating of 100 percent from March 17, 2009 to February 7, 2012 is granted. FINDINGS OF FACT 1. Throughout the appeal period from August 18, 2004 through March 17, 2009, the Veteran’s PTSD most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. 2. Throughout the appeal period from March 17, 2009 to February 7, 2012 the Veteran’s PTSD most nearly approximated total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent prior to March 17, 2009 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating of 100 percent from March 17, 2009 to February 7, 2012 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1968 to June 1972. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. This claim has a long history. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). That decision granted the Veteran’s claim for service connection for PTSD with depression, assigning a 30 percent disability rating and an effective date of August 18, 2004, the date of the Veteran’s claim for service connection. In a subsequent June 2011 rating decision, the RO increased the Veteran’s rating for his PTSD to 70 percent, effective September 1, 2010, the date of a VA examination. While on remand, in a July 2012 rating decision, the RO again increased the Veteran’s rating for PTSD with depression to 100 percent, effective February 7, 2012, the date of objective medical evidence stating the Veteran is total occupational and socially impaired. The Veteran requested a hearing before a member of the Board via video conference. The hearing occurred December 4, 2009 before a Veterans Law Judge (VLJ) other than the signing VLJ below. This matter has previously been before the Board. In July 2010, the Board remanded the Veteran’s claim for a VA PTSD examination. In December 2011, the matter was remanded again for additional development. As noted above, a July 2012 rating decision granted a 100 percent evaluation for PTSD, effective February 7, 2012. The Board’s remand was withdrawn incorrectly, as the remand should have proceeded, and a Supplemental Statement of the Case (SSOC) should have been issued. The July 2012 remand directives were completed and a SSOC was issued in May 2018. As such, the issue seeking higher evaluations for PTSD with depression prior to July 26, 2012 is currently at issue before the Board. Finally, the VLJ who conducted the earlier December 2009 hearing is no longer employed by the Board. The Veteran was offered the opportunity for a new hearing, but did not respond that he desired such a hearing. Increased Rating Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. §§ 4.1, 4.2, 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases such as this where the Veteran’s rating has been staged, the Board is tasked with reviewing the propriety of both the disability ratings assigned as well as the dates of the stage. Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130. Under the General Formula, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent evaluation is warranted for PTSD when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70-percent evaluation applies when a veteran’s occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. A 100-percent rating is assigned when there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 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 a rating 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely based on social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 1. Entitlement to a disability rating in excess of 30 percent prior to March 17, 2009 for post-traumatic stress disorder (PTSD) is denied. Currently, for the period from August 18, 2004 through March 17, 2009, the Veteran’s PTSD is rated at 30 percent. For the reasons that follow, the Board determines that, prior to March 17, 2009, a rating in excess of 30 percent is not warranted. The Veteran contends his PTSD symptoms warrant a higher evaluation than the 30 percent he was granted in the April 2008 rating decision. He contends he should be in receipt of a 100 percent evaluation from August 18, 2004. The Veteran’s VA treatment records reflect his mental health treatment and diagnosis. Throughout his VA treatment records, he reported sleep disturbances, stress, and anger issues. His VA treatment records reflect treatment through group therapy and medication. In May 2005, his VA doctor reported the Veteran was at baseline with chronic PTSD and that it interferes with his work, but the Veteran continued to work, even though it was difficult for him. Throughout his VA treatment records he consistently confirmed he did not have any suicidal or homicidal ideation. In November 2007, the Veteran’s VA doctor, Dr. S. K. provided a private opinion. Dr. S. K. reported he saw the Veteran regularly for his PTSD. Dr. S. K. reported that the Veteran was employed, but the Veteran has great difficulty at work due to hyperarousal symptoms, which lead to irritability and anger dealing with others. Dr. S. K. also reported the Veteran has sleep difficulties, nightmares, flashbacks, and some social isolation and avoidance tendencies. Dr. S. K. stated the Veteran is permanently disabled due to his PTSD. The Veteran underwent a VA examination in December 2007, wherein his diagnosis of PTSD was confirmed. The examiner reported the Veteran was oriented to person, place, time, and situation. The examiner also stated the Veteran denied homicidal or suicidal ideation, denied panic attacks, and that his comprehension, insight, and judgement were good. The examiner noted the Veteran had issues with irritability and issues with work, he is able to keep his job because he was friends with the owner. The Veteran’s occupational and social impairment was categorized as occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks. although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Based on the evidence of record, a rating in excess of 30 percent during the period from August 18, 2004 through March 17, 2009 is not warranted. Throughout the period referenced, the medical and lay evidence indicate that symptoms of PTSD included sleep impairment, depression, irritability, hypervigilance. These symptoms more closely approximate those listed in the criteria for a 30 percent rating. There is insufficient evidence to show that a 50 percent rating is warranted based on 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. The Veteran is married, and reported going out to dinner with his wife. He reported visiting his sister a few times a year. Although difficult, during this time the Veteran did maintain employment. Quite simply, the evidence of record for this period does not show that the Veteran’s symptoms approximated those required for a 50 percent rating, nor did his symptoms result in occupational and social impairment with reduced reliability and productivity. Therefore, the Veteran does not meet the criteria required for a 50 percent rating for this period. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a disability rating in excess of 30 percent for PTSD, the doctrine is not for application. 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to a disability rating of 100 percent from March 17, 2009 to February 7, 2012 is granted. The RO granted a staged rating for the Veteran’s PTSD beginning September 1, 2010 through February 7, 2012. The Board finds that the Veteran has met the criteria for a 100 percent rating beginning March 17, 2009. The Veteran’s VA treatment records reflect a January 2009 appointment for PTSD treatment. The Veteran reported he had been doing okay with a reduced dose of medication but also attributed it to leaving his bad work situation. The Veteran reported that if he had not quit, he would have put a bullet in the head of the woman who was causing so much trouble there. The VA doctor noted there was no current suicidal ideation or homicidal ideation. The Veteran underwent a VA examination in March 2009 and September 2010. The March 2009 examiner reported the Veteran described worsening psychosocial functioning and the Veteran reported he lost his job due to anger. The Veteran reported staying in his bedroom and only going out to go to the gym and speak to his wife. The Veteran also reported that he has suicidal ideation and does not see much purpose in staying alive. The examiner concluded the Veteran’s quality of life is poor and his prognosis is poor. In the Veteran’s substantive appeal to the Board (VA Form 9) in July 2009, the Veteran reported homicidal and suicidal ideation. The Veteran testified at his December 2009 hearing. He testified that suicide was always an option and again stated he wanted to “put a bullet in her head,” referring to the woman he had issues with at work. He also testified that he has issues with crowds, sleep issues, and trouble maintaining relationships. The Board remanded the issue in a July 2010 decision for additional development. During the remand, the Veteran underwent a VA examination in September 2010. The examiner concluded the Veteran cannot work because he cannot get along with coworkers. The examiner reported the Veteran is isolated and very angry. It was reported he has a long history with violence. The Veteran reported he stays in his room and avoids his wife. He reported he has some friends. He also reported panic attacks and his self-care was rated as okay. The examiner rated the Veteran as having total occupational and social impairment due to PTSD. A June 2011 rating decision increased his PTSD evaluation to 70 percent, effective September 1, 2010. The matter came before the Board again, as it was not a grant of full benefits. In a December 2011 decision, the Board again remanded the matter for additional development. The Board specifically requested the examiner to discuss the disability picture at the March 2009 examination in comparison to the September 2010 examination. The Veteran underwent a VA examination in February 2012. The examiner reported the Veteran was dressed appropriately and alert but he was very angry. The examiner reported the Veteran was not suicidal or homicidal, his memory was not impaired, and his insight and judgment were adequate. The examiner stated the Veteran is not employable due to his irritability, anger, and poor interpersonal relationships. The Veteran was awarded a 100 percent evaluation in a July 2012 rating decision, effective February 7, 2012, the date of the above referenced VA examination. The Board remand issued a directive seeking a VA medical opinion to offer an explanation or rationale for assigning GAF scores of 38 at both the March 2009 VA examination and the September 2010 VA examination. The directive further requested the examiner to discuss whether the disability picture shown at the March 2009 examination was the same or similar to that shown at the September 2010 examination. This opinion was completed in August 2014. A VA examiner reviewed both the March 2009 and the September 2010 examinations. The VA opinion reported that the examinations lacked objectivity and it was not possible to give an accurate comparison of the two reports from two different examiners from two different times. The examiner concluded the Veteran’s condition did not improve from March 2009 to September 2010, it was the same or deteriorated from March 2009. The examiner noted that Global Assessment of Function (GAF) scores are not based on objective criteria and are not applicable to PTSD. The examiner concluded it was not possible to comment on the GAF scores provided by prior examiners. The Veteran contends he should be awarded an evaluation of 100 percent for PTSD dating back to his original claim submission. The Veteran also states his depression was not considered and his evaluation is improper. The September 2010 VA examiner reported the Veteran’s thought processes and communication were within normal limits but he is extremely aggressive and angry. The RO awarded the Veteran an increased evaluation of 70 percent for PTSD from September 1, 2010. The 2014 VA opinion concluded the Veteran’s condition had worsened by his September 2010 VA examination. The Veteran reported homicidal and suicidal ideation in 2009 and 2010. The 2010 VA examiner stated the Veteran had total occupational and social impairment due to PTSD. The 2014 VA examiner stated the Veteran’s condition did not improve from the March 2009 examination to the September 2010 examination. The Veteran’s reported symptoms reflected total occupational and social impairment per the VA examiner. The record indicates that while the Veteran’s symptoms periodically varied, and while they clearly did not meet all specified criteria for a 100 percent rating, they need not in order for the benefit to be granted. The Veteran was generally not capable of sustaining any more than minimal stress, is isolated, very angry, and was homicidal and suicidal ideation during several different time periods. The claim for a disability rating of 100 percent is granted from March 17, 2009 to February 7, 2012 (at which time a 100 percent evaluation was granted). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, Associate 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.