Citation Nr: 21065130 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-14 398 DATE: October 25, 2021 ORDER Prior to February 6, 2019, an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. As of February 6, 2019, an initial rating in excess of 70 percent for PTSD is denied. FINDINGS OF FACT 1. Prior to February 6, 2019, the Veteran's PTSD is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. As of February 6, 2019, the Veteran's PTSD is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment CONCLUSIONS OF LAW 1. Prior to February 6, 2019, the criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. As of February 6, 2019, the criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2003 to August 2003, and January 2004 to November 2004. This matter comes before the Board on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In March 2020, the Board remanded the case for additional development and it now returns for appellate review. The Board notes that additional evidence was received in September 2020; however, the documents are illegible and will not be considered at this time. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating in excess of 30 percent prior to February 6, 2019 and in excess of 70 percent thereafter for PTSD. The Veteran contends his PTSD is more severe than as reflected by the currently assigned ratings and, therefore, a higher rating is warranted. Prior to February 6, 2019, such disability was evaluated as 30 percent disabling, and a 70 percent rating was assigned thereafter. The Veteran's service-connected psychiatric disability is evaluated under the criteria of DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under DC 9411, a 30 percent rating is warranted for 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). 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 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 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; impaired impulse control (such as unprovoked irritability with periods of violence); 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. Id. A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38C.F.R. §4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the 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." 38 C.F.R. § 4.126 (a). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). 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). Here, the Veteran's claim was certified after August 4, 2014 and is therefore to be considered under the DSM-5. In this case, based on the evidence of record, the Board finds that the Veteran's psychiatric symptomatology resulted in occupational and social impairment with deficiencies in most areas, thus warranting an initial 70 percent rating. However, at no point during the appeal period does the evidence of record reflect symptoms that resulted in total occupational and social impairment. Specifically, the Veteran's symptoms did not occur at the severity, frequency, or the duration required for a 100 percent rating. The Board acknowledges that the Veteran has experienced social and occupational impairment; however, such has not been total. In this regard, at his December 2014 VA examination, the Veteran reported that he used to be a "happy go lucky" guy. He was a combat engineer in Iraq and was involved in numerous attacks, and three of his team were killed in action. He further stated that he had intrusive dreams and intrusive memories. He felt irritable all the time and had some emotional detachment. He also reported interrupted sleep, hypervigilance, and he was easily started. The Veteran also experienced compounds other losses in his life. The examiner noted that the Veteran denied depression, suicidal ideation, anxiety, panic, and vegetative signs. The examiner concluded that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. At his March 2019 VA examination, the Veteran reported that he recently moved from a congested urban area to more a suburban area. His family adjusted well and felt more comfortable. His mother lived with his wife, child, and stepson, which created some tension. The Veteran reported that he worked in the maritime industry and he was very intimated by work authority. The examiner noted that the Veteran was a pleasant, but timid individual. He enjoyed his job/family but felt stressed out easily and he was started by loud noises, even when he was practicing at the gun range. He liked for things at home to be quiet, and he was oriented in all spheres, with passive SI, but no HI, audio/visual hallucination, or substance issues. The examiner concluded that the Veteran had 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. However, at his January 2020 Board hearing, the Veteran testified that he has experienced memory loss throughout the appeal period. He further reported that he was consistently afraid of hurting someone, he had been hurting himself, and he had continuous panic with hypervigilance. He also stated that he had road rage and anger problems. In accordance with the March 2020 Board remand, the Veteran was afforded a VA examination in April 2020. At such time, the Veteran described his mood as anxious and angry every day. He reported that his depression comes and goes. He reported panic attacks 2 to 3 times a week in response to being triggered and he did not like people to stand behind him. He further reported that when he closed his eyes at night, he would have vivid memories of combat and the smell of burning flesh. The Veteran also stated that he did not like to get close to people, and he was becoming more irritable and tried to stay away from people to avoid confrontations. He further stated that he had recurrent suicidal ideation. In this regard, he stated that he put a gun in his mouth, but his mother stopped him. Since then, his guns were locked in a safe and he did not have the key. He denied current suicidal intent or plan. The examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. After affording the Veteran the benefit of the doubt, the Board finds that he is entitled to a 70 percent rating, but no higher, for the entire period on appeal. The Veteran suffers from occupational and social impairment with deficiencies in most areas. The Veteran has difficulty establishing and maintaining effective relationships and difficulty being in crowds. He also reported suicidal ideation and thoughts of hurting others. Although the Veteran reported relationship with his spouse, he did not get close to people. The December 2014 VA examiner stated that the Veteran endorsed symptoms of depressed mood and sleep impairment, but it appears that the examination was an incomplete assessment of the Veteran's psychiatric symptomatology. Moreover, as stated above, at his January 2020 Board hearing, the Veteran testified that he has experienced memory loss throughout the appeal period. He further reported that he was consistently afraid of hurting someone, he had been hurting himself, he had continuous panic with hypervigilance, and he had road rage and anger problems. The record also indicates that the Veteran participated in counseling sessions throughout the appeal and that his symptoms of impaired impulse control, short and long-term memory loss, panic attacks, and difficulty with adapting to stressful circumstances have remained consistent throughout the appeal. In fact, the March 2019 and April 2020 VA examination reports reveal that the Veteran reported symptoms of depressed mood, anxiety, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively. It was also noted that the Veteran had chronic sleep impairment, panic attacks more than once a week, anxiety, mild memory loss, depressed mood, suspiciousness, near-continuous depression affecting the ability to function independently, appropriately and effectively, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. As noted above, the Board has considered the frequency, severity, and duration of the Veteran's impairment. Overall, the Veteran's disability picture has remained consistent throughout the appeal. The Veteran's symptoms during the appeal period and the resulting impact on his social and occupational functioning results in deficiencies in most areas such as work and family relations. The Veteran's disability picture more nearly approximates the criteria for the assignment of a 70 percent rating. However, it cannot be said that his psychiatric disability results in total social impairment. The Veteran maintains a relationship with his spouse, children, and mother. The Board notes that the Veteran reported that, when he closed his eyes at night, he would have vivid memories of combat and the smell of burning flesh; however, he denied persistent thoughts of delusions and evidence of persistent hallucinations is not present. Although anger outbursts and irritability are present, the Veteran's behavior has not been characterized as grossly inappropriate. Additionally, the Veteran was not deemed to be a persistent danger to himself or others. Thus, a rating in excess of 70 percent is not warranted at any time during the appeal period. The Board has considered whether further staged ratings under Fenderson, supra, and Hart, supra, are appropriate for the Veteran's service-connected PTSD; however, the Board finds that his symptomatology has presented the same disability picture throughout the appeal period. Therefore, assigning further staged ratings for his disabilities is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In adjudicating the Veteran's initial rating claim herein, the Board has resolved all doubt in his favor, which has resulted in the assignment of a rating to 70 percent for his PTSD prior to February 6, 2019. However, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent. Consequently, the benefit of the doubt doctrine is not applicable in such regard. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.