Citation Nr: 21001115 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-33 528 DATE: January 7, 2021 ORDER Entitlement to an initial evaluation in of 70 percent disabling, but no higher, for posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s PTSD is manifested by social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood, due to symptoms including suicidal ideation and both auditory and visual hallucinations. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation of 70 percent for PTSD, and no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 1968 to July 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In August 2018, the Board remanded the issue of entitlement to an increased evaluation for PTSD for additional development. A VA PTSD examination was completed in June 2020, and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, the Veteran was granted service connection for PTSD in a June 2012 rating decision with an assigned disability rating of 50 percent. The Veteran did not submit an explicit notice of disagreement with the June 2012 decision, but rather, filed an increased rating claim for his PTSD condition just over a year later, in July 2013. However, VA treatment records associated with the file on December 2012, within a year of the decision, included new and material evidence suggesting the possibility that a higher evaluation was warranted. In Buie v. Shinseki, 24 Vet. App. 242 (2010), the Court held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision relate back to the original claim. Id. at 251-52. Accordingly, although the Veteran did not express disagreement with the initial rating assigned in the June 2012 decision, the rating decision did not become final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201. Therefore, the PTSD rating issue is properly characterized as an appeal of the initial rating assigned in the June 2012 rating decision. Additionally, in October 2020, the Veteran was provided with notification informing him that he was eligible for a virtual tele-hearing. In a Memorandum created the following day, it was noted that a hearing had already been conducted on this appeal. Although the August 2020 post-remand brief refers to a hearing transcript, upon review of the Veteran’s claims file, there is no indication that such a hearing was held or that the Veteran has ever elected a hearing. Accordingly, the Board will proceed with adjudication. Although the Veteran has referenced an impact on his work as a truck driver due to PTSD, he has done so in the context of seeking a 70 percent schedular rating. He has not alleged that PTSD alone renders him unemployable, and so no claim for a finding of total disability due to individual unemployability based on PTSD is inferred. Rice v. Shinseki, 22 Vet. App. 447 (2009). Moreover, throughout the appeal period, the Veteran has merited a combined schedular 100 percent rating, and was found entitled to TDIU based on the combined impact of his conditions. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in October 2013. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Veteran’s PTSD is rated under Diagnostic Code 9411. This Diagnostic Code is evaluated based on the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. The General Rating Formula for Mental Disorders provides that 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 one 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, is rated 50 percent disabling. 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 worklike setting); inability to establish and maintain effective relationships, is rated 70 percent disabling. 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; memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide 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 § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the impairment does need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). The Veteran was awarded a 50 percent evaluation for his PTSD effective September 22, 2010. He has contended that he is entitled to a higher evaluation, at least 70 percent disabling. As a preliminary matter, the Veteran and his representative have contended that the severity of his Global Assessment of Functioning (GAF) score was high enough to warrant a percentage higher than 50 percent disabling. However, the Board notes VA amended part of the Schedule for Rating Disabilities regarding mental disorders to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV) and replaced them with references to the DSM-5, effective August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Use of the DSM-5 applies to all applications for benefits received by VA or pending before the AOJ, and prior to certification to the Board, on or after August 4, 2014. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). Importantly, the DSM-5 does not use the GAF scale, previously used in the DSM-IV, to reflect uniform "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See DSM-IV at 32. The overall goal of ensuring uniformity through the use of GAF scores was not achieved and "[i]t was recommended that the GAF [scale] be dropped from [the] DSM-5 for several reasons, including its conceptual lack of clarity and questionable psychometrics." DSM-5 at 16. Given that the DSM-5 abandoned the GAF scale and VA has formally adopted the DSM-5, the Board cannot use GAF scores to assign a psychiatric rating in consideration of the Veteran's appeal. See Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). In April 2011, the Veteran underwent a contract examination with a private psychiatric facility. The Veteran reported that he had previously been married for about 8 years but was divorced in 1980. He reported that he has two sons with whom he has a close relationship. He also indicated that he had a close relationship with his siblings. The Veteran described current symptoms of flashbacks and crying spells. The physician found that these symptoms were episodic and mild in severity. He also found that the Veteran did not have a history of violent behavior or of suicide attempts. It was also noted that there have been no changes in the Veteran’s daily activities or social function since he developed his mental condition. Upon examination, the Veteran’s orientation was found within normal limits. His appearance and hygiene were appropriate. He maintained good eye contact during examination. His affect and mood were flattened. Communication was within normal limits. Panic attacks were absent, there was no history of delusions or report of hallucination. Thought processes were found appropriate, his memory within normal limits, and no suicidal or homicidal ideation were present. The evaluator summarized that the Veteran’s psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactorily with routine behavior, self-care, and normal conversation. This finding was supported by the symptom “depressed mood.” In an October 2011 letter from the Veteran’s treating VA staff psychologist, PTSD symptoms were identified as: repeated disturbing memories, thoughts, or images of stressful military experiences; repeated disturbing dreams of a stressful military experience; suddenly acting or feeling as if a stressful military experience was happening again; feeling very upset when reminded of a stressful military experience; avoiding thinking about or talking about a stressful military experience or avoiding having feelings related to it; avoiding activities or situations reminiscent of a stressful military experience; trouble remembering important parts of a stressful military experience; loss of interest in activities he used to enjoy; feeling distant or cut off from others; feeling emotionally numb or unable to have loving feelings for those close to him; feeling that his future will somehow be cut short; trouble falling or staying asleep; feeling irritable or having angry outbursts; having difficulty concentrating; being super-alert or watchful or on guard; and feeling jumpy or easily startled. The Veteran was afforded a VA PTSD examination in February 2012. The examiner summarized the Veteran’s level of occupational and social impairment as such that he exhibited reduced reliability and productivity. The examiner noted that the Veteran stays to himself and avoids crowds. The examiner identified symptoms including depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and suicidal ideation. In VA treatment records from November 2012, the Veteran denied any visual hallucinations, but reported that he believes that at times he hears noises that others do not hear. Additionally, he reported that he has “anger problems” that had gotten worse. In July 2013, in conjunction with his claim for an increased rating, the Veteran reported that an increase in evaluation was justified because his medication had increased, and he reported that his condition was more chronic than it was previously. VA treatment records for July 2013 also indicate that the Veteran had some suicidal thoughts in the month prior and could not identify what triggered them. He stated that one day he was feeling badly, and that he felt better after speaking with his son. It was noted that such thoughts were not accompanied by plan or real intent. The Veteran reported that he did not have any suicidal or homicidal ideation at the time of the appointment. He also denied any audio or visual hallucinations. VA treatment records from May 2013 also reflect that the Veteran has experienced some mild instances during which he believes that someone is calling his name, although no other psychotic thinking was noted. In September 2013 VA treatment records, the Veteran reported that at times he will hear noises that sound like kids, even when he knows that they are at school. He also reported occasionally seeing a shadow out of the corner of his eye. The Veteran was afforded an additional VA examination in November 2013. The examiner summarized the Veteran’s level of occupational and social impairment as such that he exhibited reduced reliability and productivity. The examiner noted that the Veteran has continued to live with his son and that he enjoys taking walks but is socially avoidant. The examiner identified symptoms including depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. In February 2014 VA treatment records, the Veteran reported that he continues to struggle with anger and road rage. He further reported that he had an episode the previous week where he felt very depressed and had suicidal thoughts without plan or intent. He said that when he has such episodes, he “will just think around it, and do something else.” He denied any suicidal ideations at the time of the appointment. In June 2014, the Veteran further reported that he had a feeling for a 3-4 hour period where he did not care what happens to him in terms of whether he lived or died, but that he did not truly have suicidal thoughts, plans, or intent. He reiterated that he will see some dark shadows and that at times it seems like someone is calling his name when no one is present. He further reported that he is starting to forget things somewhat, although he was found to be oriented to person, place, and time. He was identified as not being homicidal or suicidal. In VA treatment records from November 2014, the Veteran reported that he continues to feel angry. He denied suicidal feelings. Although he reported that he does have thoughts of hurting others at times when he is upset, he has not acted on it. He relayed understanding that it is just a feeling and that he is capable of thinking about consequences. In April 2015 VA treatment records, the Veteran reported that he had some thoughts of wanting to hurt others at times but has not gotten into any altercations. He again reported that he has episodes during which he will see a shadow out of the corner of his eye as well hear some noises downstairs in his home, although he acknowledged that these noises may be due to the house settling. He also reported some paranoia. In conjunction with his July 2015 Form 9, the Veteran reported that his condition includes memory loss, he cannot perform household chores, his thought process is “always wrong,” he has delusions that will not go away, and his social skills are impaired due to his stressful circumstances. In August 2015 VA treatment records, the Veteran reported that seeing things out of the corner of his eye was a chronic problem. In November 2015, he reported that he started noticing that he was having memory issues about a year prior, and that they were getting worse. VA treatment records from April 2017 highlight an incident during which the Veteran recalled being in church and feeling anger towards a child that was misbehaving. He recalled being bothered to the point where he wanted to “snatch him up” and “whip” him. However, he was able to restrain himself and was thankful that he did not take any action against the child. He reported that it gets on his nerves when people do “stupid things.” In June 2018, the Veteran reported that he “still might hear and see things at times.” However, during the corresponding mental status examination, no evidence of delusion or hallucination was noted in his thought content. His thought process was found to be clear, goal oriented, and rational. In August 2018, the Veteran was found to have normal mood and affect with a coherent thought pattern and no apparent response to internal stimuli. In April 2019 VA treatment records, the Veteran expressed additional concern regarding his memory. He indicated that his son tells him to repeat things and that he has had recent incidents of not locking his doors and leaving his stove on. He reported that he was previously told he had “borderline dementia.” Testing was completed, which revealed a mild neurocognitive disorder. The Veteran was afforded an additional VA PTSD examination in June 2020. The examiner summarized the Veteran’s level of occupational and social impairment as such that he exhibited reduced reliability and productivity. The Veteran reported that he continues to live in the same area as his son, but that they no longer live in the same home. The Veteran further reported that he continues to see his sons. He tends to stay away from large groups of people but continues to enjoy going for walks. He reported that he had previously been employed as a truck driver for 29 years prior to retiring in 2012. The Veteran further described some mild difficulty with memory. The examiner stated that based on the examples provided by the Veteran, the memory loss was mild and at least slightly more than what would be expected from normal age-related cognitive decline for someone of the Veteran’s age. The Veteran reported anxiousness at times, with both somatic and cognitive symptoms when he is anxious. He reported feeling anxiety in very crowded public places. He stated that he has “ups and downs” and experiences negativistic thinking. He indicated that there has been improvement in his sleep difficulties and nightmares. During the examination, the examiner identified symptoms including depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and negativistic thinking. The examiner further observed that the Veteran was dressed neatly, casually, and appropriately to season and situation. His grooming was good. He was alert and well oriented. His affect was mildly subdued yet responsive. He was polite, respectful, sociable, pleasant, and cooperative. There was no evidence of psychomotor retardation or agitation, no tics or tremors. The Veteran’s speech was of normal rate, volume, content, and fluency during the evaluation. It was noted that information incidentally learned during the first part of the evaluation was recalled effectively by the Veteran much later in the clinical interview. There was no evidence of anomia or dysnomia. Gross judgement and abstract thinking were intact. The Veteran’s use of basic vocabulary was good, and he did not evidence delusional belief sets, dangerousness, or response to internal stimuli. The examiner found no evidence of a formal thought disorder. The Veteran provided a lay statement in July 2020, in which he reported that he disagreed with the decision not to increase his evaluation to 70 percent disabling. He stated that he does not like to be around other people and that he gets agitated if he is around people, including friends and family, for even a short period of time. He stated that he has “serious problems” with personal relationships, and that he is unable to get along with the people he is dating. He reported that in the past, his PTSD affected his work due to both his inability to get along with people and the road rage he experienced while he was a truck driver. He reported suffering from memory loss that he believes is due to his PTSD, which has gotten worse over time. He also stated that he gets agitated and upset any time something happens to interrupt his routine. He further reported that his medication has changed several times in the last year and a half, and that he does not believe it has helped much. Overall, the Board finds that an evaluation of 70 percent disabling in warranted throughout the period on appeal. Although the Veteran’s service-connected PTSD has primarily been manifested by occupational and social impairment as such that with reduced reliability and productivity throughout the period on appeal, there are several factors evidencing a higher rating is warranted. As such, the benefit of the doubt is resolved in favor of the Veteran. Here, suicidal ideation was identified as a symptom on the Veteran’s February 2012 VA examination. Over the next two years, the Veteran reported suicidal thoughts on two separate occasions, although both times it was reported that such thoughts were without actual intent or plan. He reported an additional incident during which he felt apathetic as to whether he lived or died for a several hour period. Additionally, there has been indication throughout the period on appeal that the Veteran has experienced both auditory and visual hallucinations. Such was first reported by the Veteran in November 2012. At the time he denied audio hallucinations but suggested that he believes he hears noises not heard by others. Such symptoms have persisted throughout the period on appeal, including audio hallucinations that the Veteran has described as the sound of his name being called as well as sounds that he associates with children. He has also experienced visual hallucinations that resemble shadows in the corners of his eyes. Although suicidal ideation and suicidal thoughts, as well as hallucinations, were noted in the Veterans claims file prior to the Veteran’s June 2020 PTSD VA examination, these symptoms were not noted on this examination. Rather, the symptoms identified on this examination include flattened affect; disturbances of mood and motivation; and difficulty in establishing and maintaining effective work and social relationships. A higher, 100 percent evaluation is not warranted at any point during the appellate period. Although hallucinations were consistently noted prior to June 2020, and on one occasion described as “chronic” by the Veteran, he has not met any other criteria for a total schedular evaluation. He has not been found to exemplify gross impairment in thought processes or communication or engage in grossly inappropriate behavior. In spite of his self-reported concerns with controlling his anger, he has not been identified as a persistent danger of hurting self or others. There is no notation that he has periods of intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). Disorientation to time or place have not been noted. Despite the noted memory loss, such has been described as mild, and not to such an extent that the Veteran no longer recalls for names of close relatives, his own occupation, or his own name. Therefore, the Board finds that an initial rating of 70 percent, and no higher, for the Veteran’s PTSD is warranted throughout the entire period on appeal. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.