Citation Nr: 20037546 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 15-20 656 DATE: June 2, 2020 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD was productive of no worse than occupational and social impairment with reduced reliability and productivity; deficiencies in most areas was not shown. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.§§ 1155, 5107(b), 5110; 38C.F.R. §§ 4.7, 4.130 Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to September 1969. This appeal to the Board of Veterans’ Appeals (Board) is from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified during a hearing before the undersigned; a transcript of this hearing is of record. In a July 2018 decision, the Board denied a higher rating for PTSD and remanded two additional issues. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated the portion of the Board’s decision that denied a greater rating than 50 percent rating for the psychiatric disability and acknowledged the Court did not have jurisdiction over the matters that were remanded. 1. Entitlement to a rating in excess of 50 percent for PTSD. In the July 2018 decision, the Board found that the Veteran filed an October 2010 notice of disagreement for the September 2010 rating decision that assigned an initial rating for PTSD and that he later withdrew his appeal in April 2012. He later filed a claim for increase in August 2012. See July 2018 Remand BVA or CAVC. One of the errors identified in the Board’s July 2018 decision is that the Board did not explicitly discuss whether the Veteran knew the consequences of withdrawing his appeal. See December 2019 CAVC Decision. The JMPR pointed out that it is well settled that withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). The Board finds that the Veteran’s withdrawal of his appeal is explicit and unambiguous and that he understood consequences of withdrawing his appeal. It is apparent the Veteran went to great length to not only withdraw his appeal but to do so in the correct manner. In his April 2012 statement, the Veteran indicated that he had been told over the phone by several call center representatives that he could withdraw his appeal over the phone but that a representative by the name of Zack explained that the withdrawal of his claim must be done in writing. On the cover page of his fax he wrote “I was told to put this in writing and fax this written request to drop said (2) appeals in lieu of 100% unemployability”. On the second page he then wrote, “I respectfully request to withdraw my appeal(s) for “PTSD” . . .”. He also included page 5 of the VCAA notice response and on the bottom of the page he wrote, “I respectfully withdraw my appeal for . . . “PTSD” per conversation with “Zack””. See April 2012 Correspondence. Based on his actions and the handwritten statement in which he used “withdraw” twice and “drop” once in reference to his purpose for writing, the Veteran’s intent to discontinue his appeal is explicit and unambiguous. The Board also finds that he had done so with full understanding of the consequences of his action. Although the Veteran did not explicitly state he knew the consequences of his action, it is implied in the choice of words that he used. “Withdraw” and “drop” are common words and their meanings are easily understood in the context in which he used them to convey his desire to discontinue or cease consideration of his appeal. This is also evident based on the part of his statement in which he says he is dropping his appeal “in lieu of” 100 percent unemployability. Thus, the Veteran is essentially saying that he is discontinuing the PTSD appeal because he is instead pursuing a 100 percent rating based on his unemployability. Notably, the record shows that he filed a TDIU claim in October 2011. See October 2011 Statement in Support of Claim. This case differs greatly from DeLisio because in that case there was nothing in writing that indicated the Veteran had withdrawn any appeals during a pre-hearing conference. Instead, this case is more like Hanson v. Brown, where the written a “Report of Contact” was accepted and deemed adequate to support the Veteran’s desire to withdraw an appeal. See Hanson v. Brown, 9 Vet. App. 29, 32 (1996). As the Veteran, in this case, expressed his intent to withdraw his appeal in multiple ways and at multiple times, there is no reasonable basis to draw the conclusion that he did not intend to withdraw his appeal or did not understand the consequences of his action. Nothing in his statement suggested a lack of understanding. Thus, the Board finds that the appeal of the September 2010 rating decision that granted service connection for PTSD was withdrawn in April 2012. The other error identified in the JMPR is that the Board considered a Global Assessment Functioning (GAF) score from a February 2012 VA examination to deny his claim even though the regulations had been changed so that GAF scores were no longer considered in cases in which the DSM-5 apply. The change was in effect for all cases certified to the Board after August 4, 2014 and in the present appeal the case was certified to the Board in June 2015. See December 2019 CAVC Decision. Thus, in the decision below, the Board will not consider any GAF scores. Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. If the disability has undergone varying and distinct levels of severity throughout this time period, staged ratings may be assigned. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). Based on the history of the appeal, the Board finds that a higher rating is not warranted. Service connection for PTSD was established in a September 2010 rating decision. On August 20, 2012, he filed a new claim for a higher rating for PTSD. Therefore, the period on appeal extends to one year prior to that date, or August 20, 2011, if a factually ascertainable increase is shown during that one-year period. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Since the disability has been continuously rated as 100 percent disabling since July 25, 2012, the period on appeal is limited from August 20, 2011 to July 25, 2012. See 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). On February 2012 VA examination, the Veteran was given a Trauma Symptoms Inventory and the scale score for ATR was significantly elevated indicating an extreme over endorsement of symptoms associated with his PTSD. Based on this validity scale score elevation, the Veteran’s subjective report of symptoms cannot be properly assessed because of his tendency to exaggerate his symptoms. The clinician noted that since the last exam in August 2009, the Veteran had remained married and the relationship has been “rocky.” He reported that they were losing their house due to his wife’s gambling. He also reported having contact with his children and grandchildren. He continued to be treated with medication for mental health, depression, anxiety, and nightmares. The Veteran described his mood as “solemn, concerned, anxious, depressed, longing for peace, regretful.” He denied having suicidal ideation and reported problems with anxiety attacks when he tried to deal with people. He had problems with sleep and continued nightmares. He denied having any legal or behavior problems since his last examination, and he denied any problems with drugs or alcohol. He continued to meet the criteria for PTSD with recurrent and distressing recollections of the event, recurrent distressing dreams of the event, markedly diminished interest or participation in significant activities, avoidance of things that arose recollections of the trauma, feelings of detachment or estrangement from others, restricted range of affect, difficulty falling or staying asleep, irritability or outbursts of anger, and hypervigilance. His symptoms were depressed mood, anxiety, suspiciousness, panic attacks that were weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood. The mental status evaluation was otherwise unremarkable. The Veteran denied having significant periods of remission since service. Based on the evaluation and the record, the psychologist noted that the disability was productive of occupational and social impairment with reduced reliability and productivity. See February 2012 VA Examination. During this period, the Veteran's PTSD was assigned a 50 percent rating under the General Rating formula for Mental Disorders, which is assigned where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130. To warrant a higher rating of 70 percent rating the disability must be productive of 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; intermittently illogical obscure, or irrelevant speech; 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 Veteran has reported having multiple symptoms associated with his PTSD, but the evidence does not show that they have the frequency, severity, and duration to produce deficiencies in most areas. The Veteran did not have a good relationship with his wife, but the record does not indicate that this is due to his psychiatric disability. Despite his feelings of detachment from others, there did not appear to be any problem with his relationships with his children or grandchildren; therefore, a deficiency in family relationships is not shown. There was no apparent deficiency in the Veteran’s thinking or judgment. The record indicates he did not have suicidal ideation or legal troubles, and although irritability or angry outburst were noted the record also showed he had no behavior problems. Mild memory problems are noted, but they are mild and consistent with a 50 percent rating. The Veteran was also hypervigilant, but the evidence does not indicate that this manifested as obsessional rituals which interfere with routine activities. The Veteran also endorsed suspiciousness, but none of these symptoms either individually or together are shown to produce a deficiency in thinking or judgment. Concerning his depressed mood, the evidence does not indicate that it affected his ability to function independently, appropriately and effectively. He was noted to have a markedly diminished interest or participation in significant activities, but this is not shown to have produced a deficiency in any area. Furthermore, his mood symptoms were shown to only produce a disturbance of motivation and mood, which is consistent with a 50 percent rating. The frequency of his panic attacks and flat affect are also consistent with a 50 percent rating. Overall, the disability picture presented during the VA examination does not reflect a level of severity consistent with a higher rating. This finding is particularly true given the examiner’s comment that testing administered during the exam showed that the Veteran tended to exaggerate his symptoms. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.