Citation Nr: 21000546 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-04 862 DATE: January 5, 2021 ORDER Entitlement to an initial rating in excess of 30 percent prior to December 6, 2018, and in excess of 50 percent thereafter, for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to December 6, 2018, the Veteran’s service-connected PTSD was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Beginning December 6, 2018, the Veteran’s service-connected PTSD was manifested by no more than occupational and social impairment with reduced reliability and productivity. 3. The preponderance of the evidence fails to demonstrate that the Veteran’s PTSD renders him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent, prior to December 6, 2018, and in excess of 50 percent thereafter, for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.125, Diagnostic Code 9411 (2019). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from January 1976 to October 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A review of the record shows that in a June 2020 rating decision, the Veteran was assigned a 50 percent rating for PTSD, effective April 30, 2019. The rating decision does not constitute a full grant of the benefit sought on appeal. This case was previously before the Board in November 2017, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. I. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects her 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 evaluation 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. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the general rating formula for mental disorders, 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 where there is occupational and social impairment with reduced reliability and productivity due to 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Psychiatric examinations under the DSM-IV frequently included assignment of a Global Assessment Functioning (GAF) score. The GAF is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Richard v. Brown, 9 Vet. App. 266, 267 (1996). The DSM-5 does not include GAF scores. Because this case was certified to the Board prior to August 4, 2014, the DSM-IV, rather than DSM-5 is applicable. 80 Fed. Reg. 14,308 (Mar. 19, 2015); 79 Fed. Reg. 45,093 (Aug. 4, 2014). Pursuant to the DSM-IV, a GAF score from 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores from 51 to 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). A GAF score of 61-70 is described as “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.” In Vasquez-Claudio v. Shinseki, F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit also held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. The Federal Circuit further held that, in assessing whether a particular disability rating is warranted requires a two-part analysis, including (1) an initial assessment of the symptoms displayed by the veteran and, if they are of the kind enumerated in the regulation and (2) an assessment of whether those symptoms result in the occupational and social impairment contemplated by that particular rating. See id. at 118. Indeed, considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2019). The Veteran has asserted that he should have a higher rating for his PTSD as his symptoms are worse than those contemplated by the currently assigned ratings. A review of the record shows that the Veteran receives treatment for his PTSD at the VA medical center. In an October 2010 VA treatment report, the Veteran reported that he isolated himself in his room when he feels stressed and complained of sleep impairment. He noted that when he isolates himself, he has the tendency to put on weight. The Veteran reported that he did not like attending PTSD group and stated that hearing other veterans talking about their PTSD experiences stressed him and made him want to leave. An August 2010 VA treatment report shows that the Veteran was in no acute psychological distress. There were no indications of mental content symptoms, perceptual disturbance, or gross cognitive confusion. His thinking and speech were within normal limits and there was no indications of suicidal or violent ideation, plan, or recent behaviors. The examiner noted that the Veteran’s diagnosis included PTSD and assigned a GAF score of 50. In a June 2011 VA treatment report, the examiner noted that any reported disruptions in daily cognitive functioning are most likely secondary to his chronic PTSD and not to an underlying neuropathological process. The Veteran’s diagnostic impressions included PTSD and he was assigned a GAF score of 60. At a January 2013 VA examination, the Veteran reported living with his wife of 30 years. He reported that they "got along pretty good". The Veteran stated that he has 3 adult children and reported good relationships with them. He reported few other social relationships. The Veteran stated that he sees people at church, but does not participate in other social gatherings. He mentioned that he visits his mother and sees his siblings occasionally. The Veteran reported that he stays home, reads the bible, watches tv, attends church and occasionally goes out for coffee with a friend. He participated in volunteer coaching in the summer of 2012 but states that it was "too much" for him and does not plan on participating again next summer. He described his mood as “much better because of church”. The Veteran reported that at times depression “just comes”. He reported that he self-isolates and becomes snappy with others when he is depressed. He also feels guilt and has not gone swimming since his in-service stressor event. The Veteran does not go on boats, avoids funerals, public places, and crowds. He reported that people splashing water triggers memories of the stressor event. He did not report panic attacks, or current suicidal ideation or homicidal ideation (SI/HI). The Veteran reported difficulty with short term memory, initiating sleep, distressing dreams related to active service 1-2x weekly, and frequent intrusive thoughts of the stressor event, especially when trying to fall asleep. Upon mental status examination, the examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss. The Veteran was alert and oriented. His memory was 3/3 on immediate, 2/3 on delayed recall, and 3/3 on cue. The Veteran’s affect was mildly dysphoric but generally appropriate. The Veteran was found to be capable of managing his financial affairs. The examiner diagnosed the Veteran with PTSD and stated that the disability manifested 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 submitted a PTSD disability benefits questionnaire from a private physician that was received by VA in July 2013. At that time, the Veteran reported that he has been married to his wife for 3 years. He stated that he has three adult children all living independently. The Veteran listed his wife and mother as his strong supporters. The Veteran denied personal or family mental health history. He reported taking Wellbutrin and Lopamax for his mental health symptoms. He stated that the medications slow him down mentally and he received individual therapy, weekly, participating in prolonged exposure. Upon mental health examination, the examiner recorded the following symptoms: Depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, impairment of short and long-term memory, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, SI, obsessional rituals which interfere with routine activities, impaired impulse control, persistent delusions or hallucinations, persistent danger of hurting self or others, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner also noted the following: The Veteran details great on-going difficulty with his symptom pattern. He remarks he can no longer enjoy the simplest of activities. The Veteran’s attention is poor, and concentration appears variable. He complains of increased trouble with short-term memory. A previous VA examination in June 2011 stated that cognitive disruptions are attributed to increasing PTSD symptoms. The Veteran’s speech flow was normal, although he is brief with information offered. Thought content was appropriate for the circumstances. Organization of thought was goal directed. The Veteran reports active visual hallucinations, and suicidal ideation without intent. His fund of knowledge appears to be slightly below average, intellectual abilities appear average, capacity for abstraction appears poor, and ability to interpret proverbs is poor. The Veteran’s judgement was average. mood was anxious and nervous, and affect was restricted. He reports that he does feel anxious and depressed. In fact, on this day, he endorses symptoms of PTSD, as he is vague with responses, suspicious, and seems rather vigilant when speaking with the examiner. He seems cautious of this important interaction this day. Over the course of this social interaction, he is insecure and unsure of himself. The examiner continued the Veteran’s PTSD diagnosis and found that he was unable to manage his own finances. At a January 2014 VA examination, the Veteran reported living with his wife of 32 years. He reported a good marriage and good relationships with his three adult children and his grandchildren. He reported a close friend who he speaks with 1-2 times a month and visits about 3 times a year. He also reported a close relationship with his pastor, who he credits for helping end his drug addiction. For hobbies, the Veteran stated that he watches television, goes to church, plays with his grandchildren, and goes on walks. He stated that he does not smoke tobacco or drink alcohol/illicit drugs. He has a gun at home but has not touched it for years. He strongly denied SI/HI. Upon mental health examination, the examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss. However, she noted there had been a significant improvement in the Veteran’s depression. The examiner continued the Veteran’s PTSD diagnosis and stated that it manifested 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 examiner opined that the Veteran’s July 2013 private PTSD DBQ was not an accurate account of the Veteran’s current functioning. As rationale, the examiner noted that the Veteran’s VA treatment records and prior examinations comported with the findings of her own examination and not the findings of the private DBQ. In December 2018 VA treatment report, the Veteran reported feeling depressed at times, nightmares and flashbacks about his experiences in the military. The treating doctor also noted that the Veteran’s PTSD seemed to be manifesting perceptual symptoms like visions. At a January 2020 VA examination, the Veteran reported being married for 38 years. He reported a good relationship with his wife and 3 adult children. He reported that two of his siblings are now deceased, but he maintains contact with his mother and has a brother who visits him. He also reported having a friend that he communicates with via phone. The Veteran reported that he usually stays in the house, watches sports, and goes to church. He endorsed finances and having his car repossessed as psychological stressors. The Veteran reported that he had an intermittent depressed mood, intermittent history of SI, sleep disruption, reduced energy levels, anger, irritability, angry outbursts, anxiety, short term memory problems, and episodic panic symptoms unclearly differentiated from his medical breathing issues. Upon mental status examination, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The Veteran presented casually dressed, his grooming and hygiene were fair, his speech was normal, his eye contact was good, his thought process/ content was good, and his memory and attention were normal for evaluation purposes, but not formally assessed. The Veteran was oriented x3, his abstract reasoning was normal, his affect was normal, and he described his mood as “pretty calm”. The examiner continued the Veteran’s PTSD diagnosis and noted that it manifested occupational and social impairment with reduced reliability and productivity. The Board finds that the Veteran is not entitled to a rating in excess of 30 percent for his PTSD prior to December 6, 2018. In this regard, prior to that date, the Veteran's PTSD was shown to result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran did not exhibit flattened affect; impaired speech; significant panic attacks; impaired judgment; impaired thinking or thought processes; or difficulty in establishing and maintaining effective work and social relationships. While the July 2013 private PTSD DBQ noted that the Veteran’s symptoms included SI, obsessional rituals which interfere with routine activities, impaired impulse control, persistent delusions or hallucinations, persistent danger of hurting self or others, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, the Board notes that these findings are an outlier when compared to the other medical evidence of record, specifically the Veteran’s VA examination and treatment reports. For example, contemporaneous VA treatment records note the Veteran denial of homicidal and suicidal ideation and hallucinations. See, e.g., August 2013 VA Primary Care Outpatient Note; November 2013 Preventative Medicine Note. Therefore, the July 2013 private PTSD DBQ is assigned low probative weight. Additionally, VA treatment reports indicate that although the Veteran experienced panic attacks related to his respiratory issues, intrusive thoughts, and nightmares, he reported that his symptoms were improved and that he maintained good relationships with his wife and children. Pertinent VA treatment records indicate that the Veteran had fluctuating symptomatology. Further, the Veteran reported he had improvement in his sleep, appetite, and anxiety with medication and therapy. Therefore, the Board finds that an initial rating in excess of 30 percent prior to December 6, 2018, is not warranted. 38 C.F.R. § 4.125, Diagnostic Code 9411. The Board finds that the Veteran is not entitled to a rating in excess of 50 percent for his PTSD beginning December 6, 2018. In this regard, the Veteran's PTSD was shown to result in occupational and social impairment with reduced reliability and productivity. The Veteran did not exhibit occupational and social impairment with deficiencies in most areas; suicidal ideation; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Rather, the evidence indicates that the Veteran consistently denied suicidal or homicidal ideation plan or intent; and consistently presented with speech within normal limits; unimpaired judgment and insight; fully oriented; with adequate personal appearance and hygiene. The Board notes that although the January 2020 VA examination indicates that he had chronic sleep impairment and memory loss, the Veteran was also shown to have a good relationship with his wife and children. Further, the Veteran reported no current SI/HI. Therefore, the Board finds that a rating in excess of 50 percent beginning December 6, 2018, is not warranted. 38 C.F.R. § 4.125, Diagnostic Code 9411. Accordingly, the Board finds that an initial rating in excess of 30 percent prior to December 6, 2018, and a rating in excess of 50 percent thereafter, for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. TDIU The Veteran asserted that he was unable to obtain and maintain substantially gainful employment as a result of his service-connected PTSD. The Veteran is service connected for PTSD, rated 30 percent from February 23, 2010, and rated 50 percent from April 30, 2019. As this is his only service-connected disability, the schedular criteria for TDIU have not been met. A review of the record shows that the Veteran stopped working full-time in 2009. He reported that he stopped working as a result of his PTSD. Prior to 2009, he had worked as a dietary technician, high school athletics coach, and as an associate for Publix. A review of the record shows that the Social Security Administration (SSA) determined that the Veteran was rendered disabled due to his asthma in 2009. At January 2013 and January 2014 VA examinations, the Veteran’s PTSD was found to manifest 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. In a July 2013 private PTSD DBQ, the Veteran’s PTSD was found to manifest occupational and social impairment with deficiencies in most areas. The examiner specifically noted that the Veteran could not sustain the stress from a competitive work environment and could not be expected to engage in gainful activity. At a January 2020 VA examination, the Veteran’s PTSD was found to manifest occupational and social impairment with reduced reliability and productivity. The examiner opined that the Veteran’s PTSD symptoms may reduce occupational efficiency, reliability, and productivity and noted that the Veteran may perform best in environments where he is able to work alone with routine or repeated tasks. Additionally, the examiner stated that there was no differentiation between physical or sedentary employment based on the Veteran’s PTSD symptoms. The Board notes that the findings of the July 2013 private PTSD DBQ are an outlier when compared to the other medical evidence of record, specifically to include the Veteran’s VA examination and treatment reports. Therefore, the July 2013 private PTSD DBQ is assigned low probative weight. After a full review of the evidence of record summarized above, the weight of the most probative evidence does not suggest that the Veteran’s service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation. The Board affords great probative weight to the VA examiners competent, credible, and persuasive characterization of the overall severity of the Veteran’s PTSD. They based these findings on thorough clinical evaluations and full consideration of his pertinent history. The Board does not doubt the significant functional impact of the Veteran’s PTSD on his ability to perform physical, psychological, and interpersonal tasks required to work, considering his work and education history. However, he is adequately compensated for such overall moderate functional limitations through the assigned, schedular ratings. Cf. 38 C.F.R. § 3.321(a) (“The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability.”) Accordingly, the weight of the most probative and persuasive evidence shows that the Veteran’s s PTSD has not rendered him unable to secure and follow a substantially gainful occupation. Therefore, entitlement to a TDIU, to include the referral of the claim to the Director, Compensation for extraschedular consideration, is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.16(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.