Citation Nr: 20053571 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 16-63 506 DATE: August 12, 2020 ORDER An initial rating of 50 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's PTSD more nearly approximated symptoms of occuational and a social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 50 percent rating, but no higher, for PTSD, have been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1988 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board), on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this appeal in December 2018 and remanded this issue for further development including scheduling a VA examination. The case returned to the Board for further appellate review. 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400 (o)(2). PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). A 30 percent evaluation is warranted where there is 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). This may be 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). 38 C.F.R. § 4.130, Code 9411. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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. Id. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. Id. The VA Secretary recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and replaced them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). The DSM-V eliminated the DSM-IV’s reliance upon GAF scores, and accordingly, the Board will no longer afford GAF scores any probative value. See Golden v. Shulkin, 29 Vet. App. 221, 224-25 (2018). 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). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played 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. 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. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks an initial higher rating for his service-connected PTSD, currently evaluated at 30 percent under 38 C.F.R. § 4.130. Diagnostic Code 9411. He also contends that his psychiatric condition has worsened, with significant OCD behavior, secondary to his PTSD. See May 2014 statement in support of claim. The Veteran underwent a VA PTSD examination in September 2011. He was diagnosed with alcohol dependence in full sustained remission and nicotine dependence and no mental health diagnosis was indicated. The examiner noted symptoms of depressed mood and anxiety only. Older VA treatment records indicated that the Veteran was diagnosed with PTSD, obsessive-compulsive disorder (OCD) traits, and depression. VA treatment records show that in September 2011, the Veteran was noted to have moderate symptoms of loss of interest and changes in appetite; and mild symptoms of pessimism, past failure, loss of pleasure, guilty feelings and punishment feelings, self-dislike, agitation, indecisiveness, worthlessness, loss of energy, changes in sleeping pattern, irritability, concentration difficulty and tiredness or fatigue. In July 2012, the Veteran stated that he was experiencing ongoing anxiety, that he is afraid of going to new places, being alone, and has difficulty adapting to change. He reported panic attacks “couple times a week” that last from 2 to 20 minutes. He was noted to be with anxious mood and restricted range of affect. No delusions or hallucinations. He was diagnosed with panic disorder with agoraphobia and alcohol dependence in full remission. A September 2012 psychiatric note shows the veteran diagnosed with moderate PTSD. The veteran met criteria for re-experiencing, avoidance, and hyperarousal symptoms. Additionally, the veteran displayed obsessive and compulsive traits, particularly the obsessive and ruminative nature of the memories, and rigidly applied neutralizing behaviors, such as performing a mental safety checklist. The obsessive and compulsive traits are restricted to the trauma, exclusively, and he denies other obsessive or compulsive behaviors. In October 2012, the Veteran reported re-experiencing, hyperarousal, and avoidance symptoms related to being assaulted while in the military. These symptoms have adversely affected his life and limits the activities he can engage in, and quality of his relationships. The Veteran listed problem were intrusive thoughts, occurring daily, avoidance of thoughts/feelings associated with trauma, startled response, and hypervigilance. The Veteran received treatment therapies through the Posttraumatic Stress Disorder (PTSD) Treatment Program from October 2012 through July 2019. In November 2012, the Veteran reported he was having a hard time with the idea of losing his protective “bubble” where he has kept himself and things cannot hurt him. He also stated that he needs to be in control or otherwise “something bad will happen”. In July 2013, the Veteran reported primary concern to be "paranoia," described as feeling like he is being watched when out in public as well as difficulties relating to coworkers and feeling like "they are out to get me." Veteran states he wakes in the middle of the night with "racing thoughts." He is extremely anxious when alone and stated he would "rather be in a crowded mall than alone." He has considerable difficulty with new experiences such that he has "dry heaves." The psychologist administered a PTSD Symptom Scale Interview on target trauma and noted the Veteran continue to meet PTSD criteria. In November 2013, the psychologist noted that the Veteran’s mood was moderately anxious, and affect was mildly constricted, thought here is an intensity about him that persists throughout the session. He was oriented in all spheres. As the Veteran did not complete his homework, the psychologist noted that “it is more likely he was avoiding his trauma than that the was really too busy (his new job is closer to home, and he is doing the same basic work with the same corporation, and working fewer hours per week) or that he did not have time when his kids could not see what he is doing.” A depression screening was completed in December 2013. The record shows that a PHQ-2 screen was performed, and it was noted that the Veteran’s score was 5 which is a positive screen for depression and in the PHQ-9, the score was 23 which is suggestive of severe depression. On a suicide assessment, the Veteran stated "I would never kill myself. That thought never comes into my mind. That's a coward's way, I'm not going to choose the easy way out." In his December 2013 session, the therapist opined that “it is not a good time for the Veteran to engage in therapy as he continues to avoid his trauma and maintain and justify his stuck points. When efforts are made to help him see the irrationality of the beliefs, he becomes somewhat argumentative and does not display openness to changing his thoughts.” He added that the Veteran diagnosis per DSM 5 criteria and by medical record is PTSD, and that “based on the PHQ, an additional diagnosis of unspecified depressive disorder is also warranted. Based on his report of being constantly anxious about such details as lightpoles falling over on him, and other irrational and uncontrollable worries that do not directly pertain to his traumatic assault, a diagnosis of generalized anxiety disorder will be considered.” At the next therapy session, the following week, the therapist noted that the Veteran reported “uncontrolled worry and anxiety, inability to control the worry, feeling keyed up (he admits to being "wound too tight"), difficulty concentrating, irritability and (as has been witnessed by this writer when he perceived he was being "kicked out" of therapy). His excessive worries cause clinically significant distress, are not due to a medical condition, and as they are often unrelated to his trauma (worries that his water heater will blow up, worries that bolts on light poles will give way and the pole with crush him, etc.), he meets criteria for GAD.” In February 2014, the Veteran reported excessive ordering and checking behaviors that go beyond the hypervigilance seen in PTSD (e.g. needing paper goods at work to be stacked in a certain way). The therapist added that there is much overlap among symptoms of PTSD, OCD, and GAD, and that therefore, much of the treatment is the same. In May 2014, the Veteran reported he wakes up with noises and having dreams. He said that he was having flashbacks of flat tires, strange people and darkness which started 2 months after the incident when he was assaulted in 1991. He said that he was anxious and panic in new places and with new people. The Veteran was prescribed medication for depression and anxiety. In October 2014 PTSD program assessment note shows that the focus of interview was on differential diagnoses of OCD of delusional disorder. The Veteran reported symptoms of “setting up my safety bubble” that requires extremely structure routines, ways of traveling and transportation, as well as thinking about safety issues. The therapist noted that fears has become exaggerated; however, he added that much of the routine established by the Veteran is to maintain a sense of safety and to address feelings of dread when he does not follow routine and that although his behavior is extreme, do not appear to be of delusional content. Rather, behavioral patterns are a function of managing physical and emotional feelings of fear and dread and can be related back to his index trauma. In a June 2016 therapy note, the Veteran affect was anxious and overwhelmed. Mood reported to be "I'm losing it" and highlighted that he has been experiencing what he perceived to be AH and VH (e.g., hearing glass break, metal banging, tires screeching). The therapist added that upon further questioning, the Veteran is experiencing flashbacks of another trauma not addressed in treatment thus far. In December 2016, the therapist noted that as a consequence of the PTSD triggering event and auditory hallucinatory event, the Veteran’s OCD symptoms have increased significantly. “We discussed this increase in the context of attempting to garner control of his fears and that his OCD behaviors are often used as his only way to managing fears.” In May 2017, the Veteran reported that he is "a bit more on edge" but stated that was a consequence of making minor changes to compulsive routines and mood continued to be reported as anxious. In July 2018, the therapist noted that the Veteran reports overall improvement in his psychiatric condition although he still has symptoms. He sleeps 8 hours/night and no nightmares. The Veteran denied current depression and psychosis, episodic anxiety, suicidal and homicidal ideation and intent. The Veteran still has symptoms of PTSD and OCD, noted as stable. In February 2019, the Veteran was afforded a VA examination for PTSD. The examiner noted a diagnosis of PTSD only. The Veteran does not have more than one mental disorder diagnosed. The Veteran level of occupational and social impairment was summarized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported he has been married since 1995, has three children, has good relationship with wife and children, used to have lots of friends and denied any behavioral problems. The symptoms noted were anxiety, chronic sleep impairment, hypervigilance, persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., "I am bad,”: “No one can be trusted”, "The world is completely dangerous”, "My whole nervous system is permanently ruined”), persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others. In July 2019, the Veteran reported that his PTSD has remained stable with medications. He denied depression, but said he have anxiety almost daily. He also reported that his OCD symptoms continue but he refuses treatment "I tried that once and I was disabled for 4 to 5 days. Never again. I can live with it." The Veteran declined additional psychotherapies. After considering the above evidence, the Board finds that the Veteran's symptoms more nearly approximated the criteria for a 50 percent rating, but no higher, throughout the entire appeal period. The evidence shows that the Veteran's PTSD symptoms of anxiety, sleep impairment, nightmares, flashbacks, irritability, anger, depression, panic attacks (when in new places) and hypervigilance caused no more than mild to moderate impairment throughout the entire appeal period as the Veteran actively sought treatment and his symptoms were controlled by medication. Although subsequent evidence shows the Veteran had an increase in symptoms, with the Veteran reporting auditory hallucinations, these did not rise to the level of occupational and social impairment with deficiencies in most areas, nor total impairment. Further, his symptoms were not of the severity, frequency, or duration, that would warrant a rating any greater than 50 percent disabling. Throughout the appeal, the Veteran has been able to participate in daily living and social activities, except those that are new to him. He was able to maintain family, social, and marital relationships and thereby. During the VA examination he reported he was working and his performance was good. There are no reports from the Veteran or any of his other examiners that note the Veteran’s appearance was inadequate. Moreover, treatment records have consistently shown that the Veteran's hygiene appears to be good. He was not noted to have impaired judgment. His thought process was noted to be logical and goal directed. He consistently denied suicidal or homicidal ideation. While the therapist reported symptoms of obsessional rituals; however, there is no evidence of record showing that either of these interfere with his routine activities. As such, the overall impact of the symptoms does not more nearly approximate occupational and social impairment with deficiencies in most areas. The Board has considered whether the Veteran’s OCD symptoms should be considered as a separate disability. The 2019 VA examiner noted that the Veteran does not have a more than one mental disorder diagnosed and his mental health therapist noted that “there is much overlap among symptoms of PTSD, OCD, and GAD, and that therefore, much of the treatment is the same.” As such, the Board finds that separate diagnoses for OCD are not warranted. Additionally, governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The diagnostic code for unspecified PTSD under DC 9411 considers the same symptoms that are also associated with OCD under DC 9404. See 38 C.F.R. § 4.130, DCs 9404, 9411 (2017). Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). That is what has occurred here, as all psychiatric symptomology has been attributed to his service-connected PTSD. Because his OCD symptomatology has been considered under DC 9411, granting a separate disability rating for OCD under DC 9404 would constitute impermissible pyramiding. See Esteban. Therefore, given that the evidence shows the Veteran's symptoms ranged from mild to moderate, the Board resolves reasonable doubt in favor of the Veteran and finds that the Veteran's symptoms more nearly approximated the criteria of a 50 percent rating for the entire appeal period. The Veteran is not entitled to a higher rating as his symptoms were not of the severity, frequency, or duration warranting a higher rating, nor did they cause occupational and social impairment with deficiencies in most areas, or total impairment. As such, the Board finds the preponderance of evidence weighs in favor of the claim. Accordingly, a 50 percent rating, but no higher, is granted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.