Citation Nr: 20022595 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 06-00 165A DATE: April 1, 2020 ORDER Entitlement to an initial 50 percent disability rating for service-connected PTSD prior to January 21, 2011, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, prior to January 21, 2011, the Veteran’s PTSD was manifested by no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial 50 percent disability rating for service-connected PTSD, prior to January 21, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1969 to February 1977, with confirmed service in the Republic of Vietnam from January 1970 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma. Entitlement to an increased disability rating for service-connected PTSD prior to January 21, 2011. Service connection for PTSD was granted by the Board in October 2010. In a rating action dated in October 2011, the RO implemented the grant, assigning an initial 30 percent disability rating, effective as of July 26, 2004. The Veteran timely expressed disagreement with the assigned initial disability rating. In February 2016, the Board, in pertinent part, denied an initial disability rating in excess of 30 percent for the service-connected PTSD. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) which, in April 2018, issued a Memorandum Decision that, in pertinent part, remanded the issue of an initial disability rating in excess of 30 percent for PTSD prior to January 21, 2011, as a Statement of the Case addressing the issue had not been provided to the Veteran. In November 2018, the Board remanded the claim. In May 2019, a Statement of the Case was issued to the Veteran, and he timely perfected a substantive appeal. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. 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 considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. The Veteran’s service-connected PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. This disability is rated under the General Rating Formula for Mental Disorders, which provides as follows: A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. A 70 percent disability 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 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 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent disability rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the American Psychiatric Association ‘s Diagnostic and Statistical Manual of Mental Disorders (4th Ed.) (DSM-IV). The amendments replace those references with references to the recently updated American Psychiatric Association ‘s Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5). It is noted that the DSM-5 introduction states that it was recommended that the Global Assessment of Functioning (GAF) scoring be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. VA outpatient treatment records dated in March 2004 show that the Veteran was said to have talked quite rapidly, noting that he had not always been that way. He denied suicidal or homicidal ideations. He endorsed several depressive symptoms, including problems with sleep and feelings of self-worth. He declined a psychiatric evaluation, but was encouraged to participate in a stress and anxiety management group. In May 2004, the Veteran was treated for symptoms associated with depression and anxiety. He was said to have difficulty sleeping and was noted to be irritable and very anxious. He was not suicidal. The assessment was depressive disorder, not otherwise specified; consider major depressive disorder; and anxiety disorder, not otherwise specified. In August 2004, he reported experiencing nightmares but noted that he was sleeping better. There were no suicidal or homicidal ideations and no evidence of delusions or hallucinations. He was said to be managing his stress. In November 2004, it was reported that he appeared to be regressing with regard to anxiety management. He had been upset with his VA provider regarding how his paperwork was being handled. He demonstrated inflexible thinking due in part to anxiety and interpersonal functioning. He would tend to magnify problems rather than exploring alternative explanations of problems and subsequent resolutions. In March 2005, he was said to exhibit anxious, racing thoughts, as he managed his “ongoing fight with the government.” A Social Security Administration Appeals Council Remand Decision dated in November 2005 shows that a psychiatric evaluation dated in November 2004, from S. L. Edwards, PhD, was referenced. It was indicated that the Veteran had been treated for anxiety with individual counseling, group psychotherapy, and medication management. His anxiety symptoms were said to include nightmares associated with his military experience difficulty with falling and maintaining a regular sleep pattern, hypervigilance, obsessive-thinking and irritability. At times, his compulsion to find justice for his family impaired his judgment to manage his anxiety, as evident by his not following through with medication protocol for anxiety. His anxiety was said to interfere with his judgment to follow through with medication compliance. In January 2008, the Veteran was said to exhibit nervousness, angry outbursts, irritability, low self-esteem, nightmares, a lack of energy, and difficulty trusting people. He had a normal appearance with normal speech and thought process. Memory was grossly intact, and insight and judgment were good. Affect was depressed and anxious, but he denied any suicidal ideation or homicidal ideation. He had been tried on three different medications, but did not tolerate them. In August 2009, the Veteran was diagnosed with dysthymia. He was said to exhibit anger, irritability, and sadness. A VA examination report dated in January 2011 shows that the Veteran reported ongoing nightmares two to three times per week. He added that he would avoid thoughts and feelings associated with his Vietnam experiences. He described diminished participation in social activities, insomnia, sleep disturbance, and irritability. He noted that he participated in an anxiety and depression support group that he found to be beneficial. He endorsed an inability to secure employment since 2002, but was able to maintain personal hygiene and basic activities of daily living. He stated that he spent most of his time taking care of his wife and son and also would play and work on the computer. Mental status examination revealed that the Veteran was well-groomed with good personal hygiene. Affect appeared restricted and mood was mildly depressed. His attention, concentration, and memory were within normal limits, but he could not recall the names of his medications. He had poor sleep and had lost weight due to his dieting but denied suicidal or homicidal ideations or intent. There was no evidence of a thought disorder in terms of derailment and he denied hallucinations or delusions. The diagnosis was PTSD. Correspondence from C. L. Riebeling, PhD, dated in January 2013, shows that it was asserted from a review of the record, the Veteran’s PTSD had rendered him unemployable since at least November 2004. It was noted that his resume documented an unambiguous trend of career success in information technology with positions of increasing responsibility, including supervisory authority and managing budgets. It was suggested that the Veteran’s GAF scores did not adequately convey his degree of dysfunction, noting that the medical professionals who had treated him from March to November 2004 had repeatedly noted his irrational and debilitating belief in a conspiracy and his impaired judgment. The overall evidence of record has demonstrated that, prior to January 21, 2011, the Veteran consistently experienced ongoing depression, anxiety, sleep disturbance, nightmares, insomnia, irritability, avoidant behavior, intrusive thoughts, and anxiety. In order to meet the criteria for a 50 percent disability rating, the Veteran’s disability would have to be manifested primarily by 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Board finds that the Veteran’s PTSD over this period of appeal has most closely approximated the criteria for a 50 percent disability rating. In order to meet the criteria for the next higher disability rating of 70 percent, the disability would have to be manifested primarily by deficiencies in most areas due to symptoms that include suicidal ideation; obsessional rituals; intermittently illogical speech; near-continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. While the Veteran has exhibited depression, there is no indication that he manifests the remaining criteria required for a 70 percent disability rating. The Board finds that overall, his disability picture over this period of the appeal meets the criteria for an initial 50 percent disability rating. Additionally, the Board has considered the statements of the Veteran as to the extent of his symptoms. He is certainly competent to report that his symptoms are worse. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. In sum, considering all applicable rating criteria, the Board finds that the level of impairment presented by the Veteran’s service-connected PTSD prior to January 21, 2011, warrants an initial 50 percent disability rating, and no higher. Consideration has been given to additional staged ratings since the date of the Veteran’s claim (i.e., different percentage ratings for different periods of time). See Fenderson, 12 Vet. App. at 119. However, there appears to be no identifiable period of time since the date of claim during which an additional staged rating for the PTSD would be warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.