Citation Nr: 21000526 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-43 684 DATE: January 5, 2021 ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 30 percent disabling prior to October 29, 2019, and in excess of 70 percent thereafter is denied. REMANDED Entitlement to a total disability for compensation purposes based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Prior to October 29, 2019, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. From October 29, 2019, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to October 29, 2019, the criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From October 29, 2019, the criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 to January 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). These issues were remanded in November 2018 for further development, that development has been accomplished as pertaining to the PTSD claim, regrettably additional development is necessary for the TDIU claim. Increased Rating for PTSD Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.§1155; 38C.F.R.§§3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38C.F.R.§4.7. 7436. In a claim for increase, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. 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. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R.§4.21. 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher prior to October 29, 2019, or 100 percent thereafter. The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 10 percent rating is assigned for 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 continuous medication. Id. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id. A 70 percent rating is assigned when symptoms such 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. Id. The Board notes that the use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p.16 (2013). In this case, however, DSM-IV was in use at the time some of the medical entries discussed of record were made. Thus, the GAF scores assigned remain relevant for consideration in this appeal. GAF scores between 51 and 60 reflect "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). This appeal comes from a September 2013 claim for an increased rating for PTSD. the Veteran contends that his PTSD symptoms warrant disability ratings in excess of 30 percent prior to October 29, 2019 and in excess of 70 percent thereafter. In so asserting, the Veteran points to an August 2015 private disability questionnaire and report by Dr. H. H-G. That report stated that the Veteran had been married and divorced once and that he denied being in a relationship and lived alone. Dr. H.H-G. noted the Veteran’s report that he kept his struggles to himself, not wanting to burden others. It was noted that the Veteran was socially isolated and withdrawn. Dr. H.H-G. reported that the Veteran struggled with depressed mood, hypervigilance, and disturbances of motivation. Dr. H.G-G noted that the Veteran neglected his personal appearance and had an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. It was noted that the Veteran had suicidal ideation. The Veteran was noted as reporting trouble with short- and long-term memory. Dr. H.H-G. noted that there was no report of overt hallucinations. Dr. H.H-G stated that the Veteran had difficulty maintaining effective relationships which also indicated he struggled with a severe impairment and that it should be noted that his symptoms had existed since his return from service. Dr. H.H-G. found that the Veteran could not sustain the stress from a competitive work environment and that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent rating. The Veteran also points to a September 2016 letter from the Veteran’s daughter who asserts that the Veteran’s symptoms were more severe than his rating suggests. In her letter, K.P. stated that the Veteran frequently had panic or anxiety attacks where he forgot where he was and had delusions and hallucinations of things he saw in service. She stated that he talked to people who were not there. She noted that her father avoided large crowds and kept to himself. She stated that she had to make sure her father had a list of appointments and left detailed instructions for her father when he took care of her son because he became irritated trying to figure things out himself. She stated that when her father became stressed or agitated, he became a different person, that he had had physical confrontations with her brother and verbal arguments with others. She stated that she felt he would be a danger to others in a large crowd because he could not control his outbursts once they were triggered. K.P. further stated that cleanliness was very important to her father which could be considered obsessive and that he frequently showered more than once a day. In contrast, in an April 2014 VA examination, following examination of the Veteran and review of the records, the examiner found that the Veteran’s PTSD resulted in occupational and social impairment due to mild or transient symptoms, the criteria for the lowest compensable, 10 percent, rating criteria. During that examination, the Veteran reported that his children had lived with him since his divorce in 2008, and that he was involved with his daughter and activities at school. The Veteran reported that he attended church and had a few friends and visitors. The Veteran reported that he last worked in 1994 but quit, due to neck and back problems. The Veteran reported depressed mood, anxiety and chronic sleep impairment. The examiner noted that the Veteran was well groomed and was in no apparent distress other than physical pain, it was noted that he was not psychotic and denied suicidal ideations Contemporaneous treatment records for this period include a January 2013 VA psychiatry treatment note in which the Veteran reported that his last suicidal thought was in 2008 when he was going through a divorce. Mental status examination revealed depressed mood and constricted affect. The Veteran denied suicidal or homicidal ideations or plan and he was fully oriented. The Veteran denied hallucinations or delusion. Thought process was organized, thinking was abstract, and judgment was fair. A GAF score of 58 indicating moderate symptoms was assigned. A January 2015 treatment note included findings of a positive depression screen. The Veteran reported little pleasure or interest in doing things nearly every day, feeling down depressed or hopeless nearly every day and feeling bad about himself several days of the week. The Veteran reported no trouble concentrating, the Veteran reported that he had had thoughts of taking his own life several months ago but no plan of taking his own life. He stated that he tried to commit suicide in 2003. In an April 2015 psychiatry treatment note, the Veteran reported that he got anxious when he came to the clinic. The Veteran reported that his blood pressure went up when he went to the doctor’s office. The Veteran denied suicidal or homicidal ideation, plan or intent. The Veteran reported spending time with his new grandson which made him feel good. Mental status examination revealed good eye contact, euthymic mood, full affect, full orientation, no hallucinations or delusions and slow thought process. Thinking was concrete and judgment was fair. The Veteran was found to have insight into his problem. An August 2015 group therapy note reported that the Veteran was engaged in the group throughout the session. The Veteran was found to be active, cooperative and engaged in an October 2015 group therapy visit. A July 2016 mental status examination revealed that the Veteran was alert, cooperative and dressed casually, eye contact was good, speech was normal, articulate and non-pressured. Mood was euthymic and affect was in full range and appropriate to verbal expression. The Veteran denied auditory or visual hallucinations or delusions. Thought process was organized and no loosening of association was noted. Thinking was concrete and the Veteran was fully oriented. Recent and remote memory was grossly intact. Attention and concentration were adequate. An August 2017 psychiatry note included the Veteran’s report that he had had thoughts about taking his life in 2003, he stated that the had not had recent thoughts about harming or taking someone else’s life. In a January 2018 treatment note, the Veteran reported that he didn’t sleep well the night prior, he explained that he had two cups of coffee and three cups of cappuccino to stay warm while working concessions to raise money for his daughter’s track team that he coached. A July 2019 review of systems in association with physician’s treatment included the Veteran’s denial of anxiety, depression, insomnia, suicidal ideation or wanting to hurt others. The Veteran was afforded a new VA examination, following Remand, in October 2019. Following review of the record and examination of the Veteran, the examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent disability rating. During his examination, the Veteran reported that he maintained contact with his children and had not been in a romantic relationship since his divorce. He reported that he was depressed, which interfered with his ability to connect with others. He described discomfort in public places. The Veteran reported that he had been out of work since 1994 due to physical impairments. The Veteran reported nightmares, intrusive thoughts about service and flashbacks. The Veteran reported hypervigilance in public and depressed mood about half of the time. The Veteran reported avoiding war movies, the news and crowded places. He stated that he typically stayed to himself. He denied physical symptoms related to panic, he stated he was nervous around doctors and that he was irritable. He reported feeling rage in traffic but indicated that he had learned in PTSD groups how to cope. He reported being forgetful. The Veteran reported thoughts of harming himself, the last of which occurred a few months ago, he denied thoughts to harm others and stated that heard voices that called his name, though the examiner stated that this did not meet the DSM-V criteria of a hallucination. The Veteran reported hearing the voice call his name and hearing or seeing his father telling him not so shoot himself. The Veteran reported that he showered or bathed daily. The examiner reported that the Veteran was adequately dressed and groomed. Speech was within normal limits, eye contact was appropriate, affect was anxious and depressed. There was no evidence of thought disorder and the Veteran denied current thoughts of harming himself or others. In a September 2020 statement from the Veteran’s daughter, K.P., she explained that she didn’t understand her father’s behavior until she majored in psychology. She stated that for at least the last seven years or so she had observed that the Veteran had a lot of trouble sleeping with nightmares. She stated that the Veteran was helping to watch her son during the day, but he got so tired she had to put her son in daycare. K.P. stated that her father was suspicious and that driving caused him anxiety. She described irritability and outbursts and requiring structure. She stated that he avoided going out and that he didn’t like to participate in functions. She stated that she observed memory loss in her father over the last decade and that she had to write everything down for him. She described problems concentrating and poor communication skills. K.P. stated that she worried her father would harm himself and that thought process and decision making were irrational and poor when he was angry, she stated that her father could not control his anger when he was triggered and stated that he hallucinated and thought he was back in service sometime. She stated that he was good with his hygiene. The Board finds that a 30 percent rating most closely approximates the Veteran’s impairment prior to October 29, 2019. In so finding, the Board notes the findings of Dr. H.G.-G. that the Veteran’s symptoms are far more severe than the VA examiner or his daughter stated. However, as shown above, the findings of the Dr. H.G.-G. are incongruent with the totality of the evidence, which demonstrate less severe symptoms than reported in August 2015. This conclusion is supported in part by contemporaneous treatment records, four months prior to the Veteran’s August 2015 private examination, the Veteran was shown to deny suicidal or homicidal ideation, plan or intent and the Veteran reported that he was enjoying spending time with his new grandson. Further, the examiner notes that the Veteran had intermittent problems with activities of daily living to include maintenance of personal hygiene. This directly contradicts the Veteran’s daughter’s report that he is vigilant about hygiene, if not obsessive. Moreover, no problems with hygiene or personal appearance are demonstrated by the rest of the evidence of record. Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiner and whether or not, and the extent to which, the examiner reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the Board finds that the opinion of Dr. H.H-G. has limited probative value due to the inconsistencies and inaccuracies noted above. The Veteran is shown to have chronic sleep impairment, anxiety and depression. He is shown to have some social impairment, but is also shown by the record to have good family relationships and some friends. Further, while isolation is shown, the Veteran is also shown to participate in events, as shown by a January 2018 treatment note in which the Veteran reported that he was working at a concessions stand for his daughter’s track team and that he was a coach of that track team. The Board notes the September 2016 and September 2020 letters from the Veteran’s daughter, K.P., in which she states concerns about her father’s memory, about him possibly having an outburst in a crowd, and findings that the Veteran had trouble with communication and hallucinations. In her September 2020 letter, K.P. additionally notes that such observations were clearer to her as she had majored in psychology. The Board has considered these statements alongside treatment notes which demonstrate good communication and intact memory, as described by medical professionals. As above, the Board is free to consider one opinion over another, here the Veteran’s treating physicians and psychologists are shown to have more clinical expertise than the Veteran’s daughter, of note, too, while the Veteran’s daughter notes delusions, the Veteran’s October 2019 VA examiner specifically found that the Veteran’s symptoms did not meet the DSM-V criteria for such. The Board notes that in Bankhead, suicidal ideation was described as a continuum, at one end with passive suicidal ideation such as wishing you would not wake up and active suicidal ideation with plan on the other end, but that both were considered suicidal ideation in the 70 percent rating. The Court found in Bankhead that in some cases the finding of suicidal ideation may cause the level of social and occupational impairment described in the 70 percent rating. Having considered Bankhead, the Board finds that, in this case, the Veteran’s thoughts of death are not of a severity such that the Veteran’s PTSD has caused occupational and social impairment with deficiencies in such areas. Instead, the Veteran’s thoughts of death are clearly on the lower end of the continuum Prior to October 29, 2019, the Veteran is shown to have little, if any, suicidal ideation. As noted above, Dr. H.H-G’s opinion is afforded little probative value. The Veteran is shown to have stated he last had a suicidal thought in 2008 in September 2013. He denied suicidal ideation during his April 2014 VA examination, the Veteran denied suicidal or homicidal ideation, plan or intent in an April 2015 VA treatment note. He reported that he had thought about taking his life in 2003 but had not had recent thoughts about harming himself or others in an August 2017 psychiatry note, and the Veteran denied suicidal ideation or wanting to hurt others in July 2019. While the Veteran is shown to have reported thinking about taking his own life “several months ago” without plan in a January 2015 treatment note, it is unclear when “several months ago” was, treatment records overwhelmingly note no suicidal ideation and even that reported in January 2015 is isolated and on the low end of the spectrum considered in Bankhead. When considered alongside the rest of the evidence of record prior to October 29, 2019, the Veteran’s symptoms most closely resulted in the occupational and social impairment described in the 30 percent rating. When taken into consideration as a whole, the evidence during this period does not demonstrate symptoms more closely approximating the impairments in speech, frequency of panic attacks, difficulty in understanding commands, judgment or memory impairment described in the higher ratings. Having considered the evidence of record from the date of the Veteran’s October 2019 VA examination onward, the Board finds a 70 percent rating is most appropriate. At that point, the Veteran reported that he typically stayed to himself, was irritable and had thoughts of harming himself and hearing a voice call his name and telling him not to shoot himself. The Veteran reported that he bathed or showered daily. At the time of the examination, the VA examiner found the Veteran’s symptoms led to an impairment described in the 70 percent disability rating. The evidence does not demonstrate, however, that the Veteran’s symptoms more closely approximate a total impairment as described in the higher, 100 percent disability rating. While the evidence demonstrates that the Veteran heard a voice, the Veteran is not shown to have hallucinations and delusions are not persistent, behavior is not shown to be inappropriate and the Veteran is not shown to have memory loss to the severity described in the higher rating, nor is he shown to be disoriented or to be a danger of hurting himself or others. Neither the October 2019 VA examiner, nor the Veteran’s daughter K.P. nor treatment records demonstrate impairments to such a severity that a higher 100 percent disability rating is warranted. For the reasons described above, ratings in excess of 30 percent prior to October 29, 2019, and in excess of 70 percent, thereafter, are denied. REASONS FOR REMAND Entitlement to a total disability for compensation purposes based on individual unemployability (TDIU) is remanded. In accordance with the Board’s November 2018 remand, in December 2018, the Veteran furnished a VA Form 21-8940 so that the RO might obtain information from the Veteran’s former employers. In that form, the Veteran submitted the names of two former employers but did not submit any addresses for them. Thereafter in September 2019, the Veteran noted that his most recent employer was out of business, but he provided the correct name and address of the other employer. However, there is no evidence that the RO contacted the employer. In order to fulfil its duty to assist, the Veteran should be provided with a new 21-8940 and should contact the Veteran’s employer thereafter. The matters are REMANDED for the following action: 1. Send the Veteran a TDIU claim form (VA Form 21-8940) and a duty-to-assist letter notifying him how to substantiate a TDIU claim pursuant to 38 C.F.R.§3.159. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. 2. Then readjudicate the claim remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.