Citation Nr: 21065374 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-09 230 DATE: October 26, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) for the period from July 21, 2016 to April 15, 2021 is granted. FINDING OF FACT For the period from July 21, 2016 to April 15, 2021, the impairment from the Veteran's PTSD more closely approximated deficiencies in most areas. CONCLUSION OF LAW The criteria for a 70 percent disability evaluation, but no higher, for PTSD from July 21, 2016 to April 15, 2021 are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to October 1969. He also had reserve service. His decorations include the Vietnam Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in pertinent part, denied a rating in excess of 30 percent for PTSD. In a January 2019 decision, the Board denied the Veteran's appeal for a higher rating. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted a Joint Motion for Remand filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. In May 2020, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, to include a new examination. In October 2020, after taking further action, the AOJ increased the rating for PTSD to 50 percent, effective July 21, 2016 (the date of receipt of his claim for increase). In December 2020, the Board again remanded the case to the AOJ for further development, to include obtaining all psychiatric treatment records from the Lowell Vet Center. In June 2021 the Board again remanded this issue for additional development. In a September 2021 rating decision, the RO granted an increased 100 percent disability rating for PTSD, effective April 15, 2021. As a result, an increased rating for the period since April 15, 2021 is no longer on appeal. Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his PTSD disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. The Veteran has a current 50 percent disability rating for PTSD for the period from July 21, 2016 to April 15, 2021 under Diagnostic Code 9411. The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent evaluation is warranted if there is 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. A rating of 30 percent is assigned when the Veteran exhibits occupational and social impairment with occasional decreases 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2020). 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)). According to the DSM-IV, GAF scores ranging between 61 to 70 reflect some 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, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect more 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]. Scores ranging from 41 to 50 reflect 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 ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech is at times illogical, obscure, or irrelevant] or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood [e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. VA has changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). Factual Background and Analysis The Veteran filed a claim for an increased rating that was received by VA on July 21, 2016. In his February 2017 substantive appeal, the Veteran asserted that he was experiencing frequent changes in mood, having bouts of anger, spending little time in groups, and avoided public places such as the store or the mall. At that time, the Veteran reported that he had recently ended his relationship with his girlfriend, but apparently attributed the end of the relationship to his girlfriend's reported drinking and "dysfunctional behavior." He continued to report that he was seeking short-term psychotherapy merely as a "tune-up." The Veteran underwent a VA mental health examination in September 2016. The Veteran reported that he was having sleep disturbances that included nightmares that caused him to wake from his sleep twice a night. He reported occasional anger outbursts and stated that he coped with his outbursts by praying. A mental status examination revealed depressed mood, anxiety, suspiciousness, and mild memory loss such as forgetting names, directions, or recent events. The examining clinician opined that the Veteran's PTSD resulted in 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. As noted by the Court in the November 2019 JMR, on the September 2016 VA examination the Veteran also reported experiencing intrusive thoughts, hypervigilance and problems with concentration. He reported that he was divorced from his wife of 33 years, had no relationships with his adult sons from that marriage and that he worked part-time for approximately only 2 hours per week. The Veteran underwent a VA examination in October 2020. The examiner summarized the Veteran's occupational and social impairment as occupational and social impairment with reduced reliability and productivity. The Veteran was no longer dating his girlfriend and was not in a relationship currently. The Veteran was a salesman who had retired 14 years ago. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week and chronic sleep impairment. On examination, grooming and hygiene were appropriate. The examiner noted that the Veteran had persistent moderate depression. He had persistent mild to moderate anxiety and suspiciousness. The Veteran's panic attacks occurred more than once a week which were marked by heart palpitations, hyperventilation, a marked autonomic over-reactivity, fatigue and catastrophic thinking. His sleep impairment involved early insomnia and having difficulty staying asleep for more than 30 minutes. He also experienced awakening in the middle of the night and was unable to regain sleep for more than 30 minutes. He had difficulty in establishing and maintaining effective work and social relationships. While the Veteran had good relationships with his brother and a friend who he golfs with, he did not have a relationship with his son due to his son's wife. Regarding obsessional rituals, the Veteran was only prone to checking locks 3 times a day. He did not have impaired impulse control or suicidal ideation. The examiner noted a worsening of the Veteran's symptoms as evidenced by the frequency of his panic attacks. A June 2020 VA treatment report noted that the Veteran's relationship with his current girlfriend had ended after she physically and verbally assaulted him. It was also noted that the Veteran was receiving weekly therapy sessions that focused on relationships. An April 2021 VA treatment report indicated that the Veteran suffered a "major PTSD event" when his son died in January 2020. He could not get out of bed for 3 days, had nightmares 2 to 3 times a week and he could vividly see what happened in Vietnam. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that a 70 percent disability rating, but no higher, for PTSD is warranted for the period from July 21, 2016 to April 15, 2021. The Board finds that the Veteran's symptoms more nearly approximate a degree of occupational and social impairment consistent with deficiencies in most areas. The Board notes that the September 2016 VA examiner determined that the Veteran's psychiatric symptoms were best summarized as "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." This description fit squarely for the criteria for a 30 percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130. Additionally, the October 2020 VA examiner determined that the Veteran's psychiatric symptoms were best summarized as "occupational and social impairment with reduced reliability and productivity." This description fit squarely for the criteria for a 50 percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130. However, the Board notes that the Veteran has demonstrated depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment and difficulty in establishing and maintaining work and social relationships. Accordingly, the evidence currently of record can be read as showing deficiencies in most of the areas listed under the criteria for a 70 percent rating. As a result, a rating of 70 percent is granted. The Board acknowledges that the results of the VA examinations and the symptoms described in the mental health treatment notes do not indicate that the Veteran experiences all of the symptoms associated with a 70 percent disability rating for PTSD. However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, a finding that there are deficiencies in most areas is sufficient to warrant a 70 percent disability rating, even though all the specific symptoms listed for a 70 percent rating are not manifested. Thus, for all the foregoing reasons, the Board finds that a 70 percent rating for PTSD is warranted for the period from July 21, 2016 to April 15, 2021. However, after reviewing evidence of record as a whole, the Board finds that the assignment of a disability rating greater than 70 percent for the Veteran's PTSD is not warranted. While treatment records demonstrate that the Veteran experienced significant occupational and social impairment, the Board again notes that the maximum rating of 100 percent requires total occupational and social impairment. Significantly, at no point did any VA examiner or treating physician find that the Veteran's PTSD caused total occupational and social impairment, as is required for the assignment of a 100 percent rating. In not granting a 100 percent schedular rating for the Veteran's service-connected PTSD, the Board is not minimizing the severity of the Veteran's symptoms. The Board notes that the evidence demonstrates that the Veteran experienced significant social impairment as a result of his PTSD as he is socially withdrawn and has indicated that he does not have a relationship with his son due to the son's wife. However, as noted above, the maximum rating of 100 percent requires total occupational and social impairment. The VA treatment records and VA examinations show no gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of own relatives, own occupation, or own name. Additionally, there were no reports of suicidal or homicidal ideation. Furthermore, the October 2020 VA examiner did not find that the Veteran's PTSD caused a total occupational and social impairment as again, the examiner indicated that the Veteran had reduced reliability and productivity due to signs and symptoms as a result of PTSD, which fits squarely for the criteria for a 50 percent evaluation under the General Rating Formula. Despite the fact that this description actually corresponds squarely with a lesser disability rating, the Board will still assign the 70 percent disability rating for PTSD for the period from July 21, 2016 to April 15, 2021. However, a rating in excess of 70 percent is clearly not available based on these findings. Accordingly, in this case, the overall evidence of record does not reflect that the Veteran's symptomatology is so severe as to merit a 100 disability rating for the period from July 21, 2016 to April 15, 2021. Thus, for all the foregoing reasons, the Board finds that a rating of 70 percent, but no higher, for PTSD is warranted for the period from July 21, 2016 to April 15, 2021. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.