Citation Nr: 21065541 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-11 770 DATE: October 26, 2021 ORDER Prior to May 16, 2013, entitlement to a disability rating of 100 percent for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT Prior to May 16, 2013, the Veteran's PTSD symptoms have been shown to be productive of total occupational and social impairment. CONCLUSION OF LAW Prior to May 16, 2013, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A subsequent November 2013 rating decision granted the Veteran a 100 percent rating for his PTSD, effective May 16, 2013. In November 2019, the Board denied the Veteran's claim for a rating in excess of 50 percent prior to May 16, 2013. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court vacated the decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The Veteran's attorney has also expressly raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU). See July 2021 appellate brief. However, as the Board is awarding a 100 percent schedular evaluation for the entirety of the period of the underlying increased rating claim on appeal and the Veteran's only service-connected disability is PTSD the matter of whether a TDIU is warranted is moot. Entitlement to a disability rating in excess of 50 percent prior to May 16, 2013, for PTSD The issue before the Board is whether the Veteran is entitled to an increased disability rating for his PTSD prior to May 16, 2013. As will be discussed in more detail below, the Board concludes that, prior to May 16, 2013, the overall symptomatology and level of impairment more closely approximated the criteria for a 100 percent rating. Therefore, an increased evaluation is warranted. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall 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. The Veteran's PTSD is currently evaluated under DC 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of the following: 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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 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. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. The Veteran's increased rating application was received on August 10, 2010. See VA Form 21-4138. Thus, the period under consideration begins one year prior meaning as of August 10, 2009. The relevant medical evidence of record includes VA treatment records, as well as lay statements from the Veteran. In his August 2010 statement, the Veteran reported that symptoms of his disability have worsened. He stated he had difficulty being around other people and had mood swings. In September 2010, the Veteran underwent a VA examination to evaluate the severity of his PTSD. The examiner specifically noted in the examination report that the Veteran arrived 25 minutes late for his scheduled appointment, and as a result, an abbreviated interview was conducted. The examiner noted that a review of VA treatment records did not show records of any prior mental health treatment. The examiner also noted that the Veteran "was evasive and somewhat uncooperative throughout the evaluation" and answered most questions with non-specific information. At the end of the evaluation, the examiner noted that the Veteran asked who he would be seeing next and "indicated that he thought his appointment" with the examiner was a "precursor" to another evaluation. The examiner concluded the Veteran did not meet the diagnostic criteria for PTSD. In May 2013, the Veteran underwent another VA examination to evaluate the severity of his PTSD. The examiner noted that at the time of the September 2010 VA examination, the Veteran "apparently did not communicate well with the examiner resulting in a falsely elevated level of functioning and no psychiatric diagnosis made." The examiner further concluded that the Veteran's presentation at the time of the May 2013 examination which indicated the Veteran was experiencing "significant pathology" was consistent with the severity of his symptoms at the time of the previous examination. The examiner summarized the Veteran's level of occupational and functional impairment with regard to his diagnosed PTSD as total occupational and social impairment. The Veteran was found to have symptoms that included impaired impulse control, such as unprovoked irritability with periods of violence, obsessional rituals which interfere with routine activities, suicidal ideation, an inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, disturbances of motivation and mood, and near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. A July 2013 VA treatment record noted that the Veteran was experiencing some symptoms of PTSD but was not attending any therapy or veteran group activities because he felt that therapy had not helped him in the past. Following a review of the evidence of record and affording the Veteran the benefit of the doubt, the Board finds that for the period prior to May 16, 2013, the Veteran's PTSD warrants a 100 percent disability rating. The evidence establishes that the Veteran suffered from total occupational and social impairment. This finding was made by the May 2013 VA examiner, who determined that the Veteran's severity of symptoms at the time of the examination was consistent with his symptoms at the time of his September 2010 VA examination. The Board further finds that the September 2010 VA examination report is inadequate to evaluate the severity of the Veteran's disability because it is based on a truncated examination and miscommunication on the part of the Veteran that resulted in inaccurate medical findings. As Veteran's PTSD symptoms were of such severity as to render him totally impaired, the Board grants entitlement to a 100 percent evaluation for the entirety of the period on appeal. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.