Citation Nr: 21000328 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-03 854 DATE: January 5, 2021 ORDER Entitlement to an initial rating of 70 percent, but not higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in most areas and was not manifested by total occupational and social impairment. CONCLUSION OF LAW Throughout the period on appeal, the criteria for assigning a rating of 70 percent, but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to March 1970, and from September 1983 to September 1989, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Winston-Salem, North Carolina. In April 2019, the Board issued a decision denying the claim for an increased initial rating for PTSD. The Veteran appealed the April 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Order, the Court granted a Joint Motion for Partial Remand and remanded the case to the Board for action consistent with the Joint Motion for Partial Remand. The Board recognizes that when a request for a total disability rating due to individual unemployability (TDIU) is made during the pendency of an increased rating claim, whether expressly raised by a veteran or reasonably raised by the record, it is not a separate claim for benefits; rather, it is an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). The issue of a TDIU was raised by the Veteran’s attorney in a December 2020 statement; additionally, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability requesting a TDIU based on the combined effects of all of his service connected disabilities. While the Board has jurisdiction to consider the issue of entitlement to a TDIU as part of the Veteran’s claim for an increased rating, recent evidence in the electronic claims file suggests that the Agency of Original Jurisdiction (AOJ) is currently developing the claim of entitlement to a TDIU. See Standard 5103 Notice, December 16, 2020; Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Consequently, the Board shall decline jurisdiction at this juncture to the RO to complete any evidentiary development the RO deems necessary. See 38 C.F.R. § 19.9(b). Increased Rating - PTSD The Veteran asserts that he is entitled to a higher rating for his PTSD because his symptoms are more severe than contemplated by the currently assigned rating. Specifically, he asserts that his symptoms warrant at least a 50 percent rating due to symptoms that include unemployment; difficulty sleeping; nightmares; frequent awakening; impaired impulse control; unprovoked irritability; difficulty in establishing and maintaining effective relationships; withdrawal and social isolation from family and friends; and inability to maintain effective relationships; self-seclusion. See generally Correspondence, December 10, 2020. Additionally, the Veteran and his attorney cite to an October 2020 private evaluation, indicating that his psychiatric symptoms are more severe than contemplated by the currently assigned rating, and that the severity of his symptoms have been stable since March 2016. Id. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which 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). Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. The Veteran’s PTSD is rated as 30 percent disabling under Diagnostic Code 9411. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under the General Rating Formula, a 30 percent rating is warranted when 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), 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, Diagnostic Code 9411. A 50 percent rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent 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); and inability to establish and maintain effective relationships. Id. The maximum schedular rating of 100 percent is warranted 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. Id. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. The Board notes that with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. A review of the record reveals that the Veteran has sought mental health treatment from VA and private facilities, as well as treatment for his other health needs. To the extent that the Veteran’s treatment records contain information relevant to the severity of his mental health, to include mental health screenings, the Board will summarize this evidence. Turning to the evidence, the Veteran was afforded a VA examination in June 2016. At that time, the examiner diagnosed PTSD, and opined that his PTSD manifested with 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. The Veteran reported he was married for 44 years, had two adult children, and had five siblings. He reported he had good social support and attended church. He had previously worked as a truck driver after leaving the military, and was retired. He reported he had counseling from VA for “stress”; and worked with a counselor to help use his time during retirement, and to help with dealing with people and anger. He reported he had not experienced depressed feelings but sometimes felt anxious. He denied ever trying to hurt himself or having serious suicidal thoughts. He reported he drank alcohol, and drank twelve drinks per day; and denied any alcohol or substance abuse. Symptoms attributable to his PTSD included chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. Behavior observations showed the Veteran appeared his stated age, that he was dressed and groomed neatly, that he displayed a positive effect, had a euthymic mood and that there were no abnormalities in movement or gait. He was noted to be cooperative with appropriate eye contact, had speech that was spontaneous, articulate, and easily understood, that he was alert and oriented to all spheres, and that rapport was developed easily. The Veteran reported that since retirement, he has had more time with his thoughts, and his PTSD symptoms have become more prominent. The Veteran’s PTSD was characterized by a persistent re-experiencing of his traumatic events (both in intrusive memories and also in flashbacks), avoidance behavior, negative alterations in cognition and hyperarousal. He reported that his PTSD symptoms interfered with his social relationships because he preferred to be by himself in his bedroom or in the garage, and that his family members wanted to spend more time with them. He described that his “nervous system breaks down” and he felt that his emotions were difficult to handle, and as a result he secluded himself. He stated he had difficulty sleeping that left him feeling tired the next day, and he was less efficient at completing tasks. The Veteran did not appear to pose any threat of danger or injury to self or others. In a September 2020 statement attached to his December 2020 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran stated that he last worked in December 2009 and that he stopped working due to his PTSD symptoms. Specifically, he reported that he would be late to work due to drowsiness from lack of sleep; and that eventually, working was too much for him with his conditions and he retired. He reported that his PTSD symptoms included significant difficulty sleeping, nightmares, frequent awakening throughout the night, waking up to ten times per night, hallucinations two to three times per week and hypervigilance, to include having to check his locks at night before going to bed, and waking up in the middle of the night to look out his windows. He also reported mood swings, depression, angry outbursts, difficulty calming down, frequent anxiety, trouble being in crowds, to include sitting separately in church to avoid the crowd and avoiding the grocery store, isolation, even from family, difficulty spending time with his family, difficulty making conversations, the avoidance of interacting with others as much as possible and feeling most at ease around other veterans. Of record is an October 2020 private psychiatric evaluation completed by Dr. E.S. At this time, the Veteran reported difficulties with completing activities of daily living and he specified that he had to go out to do errands and come straight back. Mental status and behavioral observations showed the Veteran was interviewed via teleconference, that he was cooperative and that his speech was of normal rate, rhythm, and volume. He was noted to sound mildly anxious, that he had a full range of affect, that his thought process was logical and linear with no abnormalities in content, that he had adequate attention, concentration, and memory and that he had adequate insight and judgment. Symptoms attributable to his PTSD included hypervigilance, nightmares, disassociation, avoidance and social withdrawal, feelings of detachment, visual hallucinations, irritability, low mood, paranoia, chronic sleep impairment, and ongoing negative beliefs and emotions about traumatic experiences while in the Army. The Veteran reported that his symptoms have been consistently severe since their onset and as a result of his symptoms he stated he was unable to keep working. He reported he started to isolate himself away from his family and when around people, he always felt on edge and nervous. He was hypervigilant, experienced mood swings and depression, had angry outbursts over small things and frequent anxiety. As a result, the Veteran kept to himself and watched television most of the day. The Veteran reported consistent and chronic nightmares that woke him up between eight to ten times per night; and reported he especially felt on edge at night and with loud noises. He described visual hallucinations of vague shadows. Dr. E.S. opined that the Veteran’s PTSD symptoms were severe enough to produce occupational and social impairment with reduced reliability and productivity. Further, Dr. E.S. found the Veteran’s symptoms effectively impaired his ability to secure and follow gainful employment and to perform effectively in the workplace. In this regard, she noted that his symptoms of depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and persistent delusions or hallucinations would at least as likely as not prevent him from being able to effectively complete work-related tasks. She opined that the Veteran would also at least as likely as not be unable to tolerate average workplace stressors, which could have the potential to aggravate his symptoms of PTSD and decrease the quality of his life. She found the Veteran would have to miss three or more days of work per month due to his PTSD symptoms, and that he would also have to leave early from work three or more days per month. Further, she found the Veteran’s attention and concentration would be impaired more than three days per month; and that he would frequently decompensate when subjected to this type of pressure. Of note, the Veteran stated that he left his last job because his PTSD and feelings of being on edge all of the time. In sum, Dr. E.S. concluded that from at least March 2016 to the present, the Veteran’s psychiatric symptoms manifested in occupational and social impairment with reduced reliability and productivity. Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities. However, there is no indication from the treatment notes of record that the Veteran has reported mental health symptoms that are worse than those noted above. For the entire period on appeal, the Board find that a rating of 70 percent, but not higher, for PTSD is warranted. In this regard, the Board finds that such disability was manifested by occupational and social impairment with deficiencies in most areas, without more severe impairment that resulted in total occupational and social impairment. Impairment to mood was demonstrated as the Veteran reported significant symptoms of depression, sleep impairment, angry outbursts, and self-isolation. Specifically, the Veteran reported significant impairment to family relations that was shown by the Veteran’s inability and/or difficulty having conversations or spending time with his family members and his reports of spending most of his time alone and eating meals alone. The Veteran reported his family members wanted to spend more time with him, but that the severity of his PTSD symptoms prevented him being able to interact with them. Additionally, impairment to mood was demonstrated by mood swings, hypervigilance, anxiety, difficulty calming down, avoidance of crowds and public places and feeling at most ease only around other Veterans. The Veteran reported he could only complete grocery shopping at a military base because he knew the other shoppers were most likely veterans. However, the Veteran otherwise reported having a good social support system. Notably, the Veteran has been shown to experience hallucinations two to three times a week, that are separate from his frequent nightmares and nighttime awakenings. Such demonstrates some impairment to thinking. The Board also notes that the Veteran has consistently presented as well-groomed with normal speech, logical thinking and adequate thought processes and judgment. Impairment to work due to his PTSD was also demonstrated, as the Veteran reported he could no longer work as a result of his PTSD symptoms, to include tardiness due to chronic sleep impairment, angry outbursts, avoidance of crowds, paranoia, irritability, anxiety, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances and delusions and hallucinations. In this regard, the Board notes that Dr. E.S. found the Veteran would be unlikely to tolerate average workplace stressors, and would miss significant amount of work due to his PTSD symptoms. Judgment was not impaired as it was consistently found to be intact and adequate during the appeal period. School was not attempted during the appeal period. Therefore, deficiencies in most areas was shown. The Board finds that at no point pertinent to the higher rating claim has the Veteran displayed a total social and occupational impairment as indicated by symptoms such as spatial disorientation, gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place and memory loss for names of close relatives, own occupation or own name. While the Veteran reported visual hallucinations of vague shadows that occur two to three times per month, such does not constitute persistent delusions. Further, while the Veteran reported he had significant social isolation, he also reported being involved somewhat with his family, attended church, went to veterans’ meetings, and reported having a good social support system; and hence was not totally socially impaired. Therefore, a total level of impairment had not been demonstrated in the clinical evidence or alleged by the Veteran. In assessing the severity of the PTSD, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board notes the contentions of the Veteran and his representative that the Veteran’s PTSD is more severe than currently shown on examination; and the Board observes that the Veteran, while competent to report his observable symptoms, he is not competent to report that his mental health symptoms are of sufficient severity to warrant a higher rating under VA’s tables for rating such disabilities because such an opinion requires medical expertise which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). Despite the foregoing, the Board acknowledges the Veteran and his attorney’s reports of the Veteran’s symptoms. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher 100 percent rating are not met. See Lendenmann, supra. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). This argument is therefore without merit. The Board has considered whether a staged rating under Hart, supra is appropriate; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. The Veteran and/or his attorney has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is for the assignment of an initial 70 percent rating, but not higher, for PTSD. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.