Citation Nr: 20023909 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 18-25 003 DATE: April 7, 2020 ORDER Prior to March 6, 2017, entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with panic attacks, recurrent major depressive disorder, and insomnia disorder is denied. Since March 6, 2017, entitlement to an initial disability rating of 70 percent, but no higher, for PTSD with panic attacks, recurrent major depressive disorder, and insomnia disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to March 6, 2017, the Veteran’s psychiatric symptoms more closely approximated occupational and social impairment with reduced reliability and productivity, but not with deficiencies in most areas or total occupational and social impairment. 2. Since March 6, 2017, the Veteran’s psychiatric symptoms more closely approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to March 6, 2017, the criteria for entitlement to an initial disability rating in excess of 50 percent for PTSD with panic attacks, recurrent major depressive disorder, and insomnia disorder have not been satisfied. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434-9411. 2. Since March 6, 2017, the criteria for entitlement to an initial disability rating of 70 percent, but no higher, for PTSD with panic attacks, recurrent major depressive disorder, and insomnia disorder have been satisfied. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434-9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to August 1974. This matter was previously remanded by the Board in June 2019 to have the AOJ consider medical evidence added to the record after the issuance of the October 2018 Supplemental Statement of the Case (SSOC). Entitlement to an initial disability rating in excess of 50 percent prior to January 21, 2019, and in excess of 70 percent thereafter, for PTSD with panic attacks, recurrent major depressive disorder, and insomnia disorder The issue before the Board is whether the Veteran is entitled to increased initial disability ratings for his psychiatric disability. The Veteran contends that increased ratings are warranted as he experienced severe symptoms. As will be discussed in more detail below, the Board concludes that the overall symptomatology and level of impairment have most nearly approximated the rating criteria indicative of a 50 percent rating prior to March 6, 2017, and a 70 percent rating since that date. Therefore, an increased evaluation is warranted for part of the appeal period. Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The Veteran’s disability is currently evaluated under DC 9434-9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of the following: 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 worklike setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (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; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively 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. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary of VA determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). This claim was certified to the Board after August 2014. Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF 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. Evidence and Analysis The Veteran’s service-connected PTSD is currently evaluated as 50 percent disabling prior to January 21, 2019, and 70 percent from that date. See April 2016, April 2019 and November 2019 rating decisions. Relevant medical evidence of record includes VA and private treatment records, as well as lay statements from the Veteran. A May 2012 VA psychiatry note reflects that the Veteran underwent a mental status examination. He was oriented to person, place, situation, and time. He appeared to be his chronological age, and both his grooming and hygiene were good. He made good eye contact, his motor coordination appeared normal, and the Veteran was noted to be friendly and cooperative. He spoke with a normal volume, rate, paucity and prosody. He was noted to be preoccupied with his insomnia. His thought process was goal-directed and logical. His mood was noted as euthymic. His affect was stable, appropriate and mood-congruent. He did not exhibit any auditory or visual hallucination, and no delusions were noted. The Veteran denied any suicidal or homicidal ideations. A June 2013 private treatment record stated the Veteran did not take any medication for his mood. He denied presently experiencing depression or anxiety. He reported occasionally taking Ambien for sleep. His mood and affect both were noted to be appropriate. A November 2013 VA psychiatry note reflected that the Veteran was a retired fireman who was married with a supportive relationship, a supportive family network, and he worked as a union representative in negotiations. A mental status examination reflected that the Veteran was alert and oriented to person, place and situation. His grooming and hygiene were good, and he made good eye contact. The Veteran was friendly and cooperative. He spoke in a normal tone, rate and volume. There was no evidence of suicidal or homicidal ideation, paranoia, delusions or obsessions. The Veteran’s thought process was linear, logical and goal-directed. Both his insight and judgment were deemed to be good. A March 2014 VA psychiatry note reflected the Veteran’s reports of experiencing chronic passive thoughts of suicide. His mood was deemed to be depressed and affect was dysthymic and congruent with mood. In a VA social work note dated that same month, the Veteran stated that as a result of participating in treatment, he began having suicidal thoughts that were subsequently treated. He no longer had thoughts of harming himself. In an April 2014 VA mental health note, the examiner noted that upon direct questioning, the Veteran denied current suicidal or homicidal ideation, intent or plan. A December 2015 VA psychiatry note noted the Veteran had no current thoughts of suicide, no plan and no intent. A mental status exam noted he was dressed casually, he was cooperative, his mood was “ok”, and his affect was congruent. His thought processes were linear, and his thought content involved brief suicidal feelings, intrusive thoughts and regular flashbacks. His memory was grossly intact, and both his insight and judgment were deemed fair. In April 2016, the Veteran underwent a VA examination where he was diagnosed with PTSD and major depressive disorder. The examiner stated it was not possible to differentiate what symptoms were attributable to each diagnosis. She added that the Veteran’s major depressive disorder and PTSD were unable to be reliably separated and both contributed to social and occupational impairment. The examiner summarized the Veteran’s level of occupational and social impairment with regard to all mental diagnoses as impairment with reduced reliability and productivity. The examiner noted that the Veteran’s diagnoses were productive of symptoms that included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was noted to be capable of managing his financial affairs. The Veteran submitted medical records in support of his claim dated August 2016 and November 2016 which both reflected his reports of experiencing suicidal thoughts and feelings, but no intent or plan for suicide. A March 6, 2017, VA psychiatry note documented the Veteran’s reports of experiencing suicidal thoughts every day. He stated he could only sleep between four and five hours a night with Ambien, but he avoids nightly use as it becomes ineffective. A mental status examination showed the Veteran was depressed and experienced frequent suicidal ideations. His wife stated that the Veteran stayed home a lot, that the Veteran could be negative, and he was not interested in getting out of the house. She further stated that some days the Veteran could “get depressed and worthless. This happens quite a bit. He can space out due to flashbacks when set off by triggers.” An April 2017 VA psychiatry note documented the Veteran’s continued daily suicidal feelings. The Veteran stated he saw the destruction it caused in keeping him from pursuing actions. In July 2017, the Veteran underwent a second VA examination where he was again noted to have diagnoses of PTSD and major depressive disorder. The examiner stated it was not possible to differentiate what symptoms were attributable to each diagnosis. Further, due to at least some degree of symptom overlap, the examiner stated that he could not differentiate the levels of functional impairment due to major depressive disorder and PTSD without resorting to speculation. The examiner summarized the Veteran’s level of occupational and social impairment with regard to all mental diagnoses as 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. The examiner noted that the Veteran’s diagnoses were productive of symptoms that included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, panic attacks more than once a week, and suicidal ideation. The examination noted the Veteran’s reports that he experienced some degree of suicidal ideation on a daily basis. Further, he has had periods when he was dissociative and ended up with a weapon in his hand. He also reported panic attacks with consistent symptoms about every two days or so. In a letter submitted to VA in November 2017, the Veteran reported experiencing frequent suicidal thoughts, adding that “I have gotten to the point of having a loaded 38 in my hand. I think about suicide about every other day.” On August 30, 2018, the Veteran underwent another examination to evaluate the severity of his psychiatric disability. The examiner summarized the Veteran’s level of occupational and social impairment with regard to all mental diagnoses as impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran’s diagnoses were productive of symptoms that included near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, circumstantial, circumlocutory or stereotyped speech, difficulty in understanding complex commands, suicidal ideation, obsessional rituals which interfere with routine activities, and impaired impulse control. The examiner noted that the Veteran was neatly groomed and pleasant during the exam. The Veteran reported being nervous, but the examiner stated he appeared moderately comfortable. On January 21, 2019, the Veteran underwent another VA examination to evaluate his psychiatric disability. The examiner summarized the Veteran’s level of occupational and social impairment with regard to all mental diagnoses as impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran was casually attired and appropriately groomed. The Veteran reported that his mood was depressed, and his affect was flat. His thinking was logical, linear and goal-directed. His speech was regular in rhythm, rate and tone. He maintained appropriate eye contact. There were no unusual behaviors or mannerisms noted. The examiner noted that the Veteran’s diagnoses were productive of symptoms that included near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, and suicidal ideation. Resolving all reasonable doubt in favor of the claimant, the Board finds that since March 6, 2017, the date of the VA psychiatry note, the Veteran’s psychiatric disability was manifested by occupational and social impairment with deficiencies in most areas. The evidence of record reflects that the Veteran was married but stated he did not enjoy being around people and only had one good friend. See January 2019 VA examination. The medical evidence also shows that the Veteran has experienced suicidal ideation that was coupled with tendencies of the Veteran to isolate himself in the house. The medical evidence also establishes that the Veteran exhibited dissociative episodes which resulted in him ending up with a weapon in his hand. See July 2017 VA examination. While the medical evidence shows the Veteran reported experiencing suicidal ideation prior to March 6, 2017, it is only since this date that the evidence reflects that the Veteran’s thoughts of suicide resulted in an increase in occupational and social impairment. Specifically, this record documents the reports from the Veteran and his wife of trouble leaving the house, increased feelings of worthlessness and possible dissociative episodes characterized as “spacing out.” Further, the Board notes that while suicidal ideation is listed as one of the symptoms contemplated by the 70 percent rating criteria, “the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level.” Bankhead v. Shulkin, 29 Vet. App. 10 (2017). When viewed in light of the entire evidence of record, the Board finds that the symptomatology described during the appeal period did not more closely approximate a level of impairment that warranted a 70 percent disability rating until March 6, 2017. As such, the Board finds that he is entitled to a higher, 70 percent rating for his PTSD since March 6, 2017. The Board finds that the frequency, duration, and severity of the Veteran’s psychiatric symptoms do not more closely reflect or equate to total occupational and social impairment warranting a 100 percent disability rating at any point during the appeal. When considering the entirety of the medical evidence, the Board finds that the Veteran’s symptoms do not result in total occupational and social impairment. In this regard, the Board finds the opinions of the April 2016, July 2017, August 2018, and January 2019 VA examiners to be particularly probative, as their assessment of the level of occupational and social impairment experienced by the Veteran considered the examination of the Veteran, his reported symptoms, and his past medical history. While the Veteran has expressed suicidal ideation, he has not been found to be a persistent danger of hurting himself or others. The Veteran has also not shown disorientation to time or place, or memory loss for close relatives, his own occupation or own name, which would be symptoms that would support a 100 percent rating. Finally, the Board finds that for the period prior to March 6, 2017, the Veteran’s symptoms do not result in occupational and social impairment with deficiencies in most areas. While VA treatment records documented the Veteran’s reports of suicidal ideation as early as March 2014, the medical evidence makes clear the symptoms were both expected and actively managed in the course of his psychiatric treatment. See, e.g., March 25, 2014 VA social work note. There is also no indication that the Veteran’s reports of suicidal ideation prior to March 6, 2017 resulted in any increased occupational or social impairment beyond what is contemplated in his 50 percent disability rating. As such, the Board finds that the weight of the most competent and credible evidence demonstrates that the Veteran’s symptomatology more closely approximates the schedular criteria for the existing 50 percent disability rating prior to March 6, 2017. (Continued on the next page)   In sum, the Board finds that a rating exceeding 50 percent for the period prior to March 6, 2017, is not warranted. The Board also finds that a rating of 70 percent, but no higher, for the period since March 6, 2017, is warranted. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.