Citation Nr: 21069060 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-06 362A DATE: November 17, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period from January 15, 2014 to November 14, 2017 is denied. An initial rating of 70 percent, but no higher, for PTSD, from November 15, 2017, is granted. FINDING OF FACTS 1. For the period from January 15, 2014 to November 14, 2017, the Veteran's symptoms of PTSD are consistent with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task; symptoms resulting in occupational and social impairment with reduced reliability and productivity were not demonstrated during this period. 2. From November 15, 2017, the Veteran's symptoms of PTSD more nearly approximate occupational and social impairment with deficiencies in most areas; symptoms resulting in total occupational and social impairment are not demonstrated at any time during this period on appeal. CONCLUSIONS OF LAW 1. For the period from January 15, 2014 to November 14, 2017, the criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. Resolving all reasonable doubt in favor of the Veteran, from November 15, 2017, the criteria for a 70 percent disability rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to April 1969, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's representative presented evidence at a November 2017 Travel Board hearing held at the local RO before a Veterans Law Judge (VLJ) who is no longer with the Board of Veterans' Appeals. Upon being notified that he could request an additional Board hearing before a different VLJ, the Veteran responded in March 2018 that he did not wish to appear at another Board hearing and wished for his case to be considered on the evidence of record. By way of history, in a July 2020 decision, the Board denied the Veteran a rating in excess of 30 percent for PTSD from January 15, 2014 to February 14, 2019, and in excess of 70 percent thereafter. The Board also denied the Veteran service connection for a skin disorder. The Veteran appealed the portion of the Board's decision which denied a rating in excess of 30 percent for PTSD for the period from January 15, 2014 to February 14, 2019, to the United States Court of Appeals of Veterans Claims (the Court). The Veteran did not contest the Board's denial of service connection for a skin disorder, nor its denial of an initial rating in excess of 70 percent for PTSD for the period from February 15, 2019. In a July 2021 Order, the Court granted a joint motion for partial remand (JMPR), dismissing the appeal as to the issues of service connection for a skin disorder, and a rating in excess of 70 percent for PTSD, and vacating the Board's July 2020 decision as to the issue of a rating in excess of 30 percent for PTSD for the period from January 15, 2014 to February 14, 2019; remanding the case for further action consistent with the JMPR. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Entitlement to an initial rating in excess of 30 percent for PTSD for the period from January 15, 2014 to February 14, 2019. The Veteran generally asserts that the severity of his PTSD from January 15, 2014 to February 14, 2019 is not adequately contemplated by the currently-assigned 30 percent rating. At his November 2017 Board hearing, the Veteran through his representative, asserted that his PTSD symptoms had worsened. See November 15, 2017 Board Hearing Transcript. Pursuant to the July 2021 JMPR, the parties agreed that the Board erred by not providing an adequate statement of reasons or bases for its decision to deny the Veteran an initial higher rating for his PTSD for the period from January 15, 2014 to February 14, 2019. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. For the initial period on appeal, the Veteran's PTSD is evaluated as 30 percent disabling under 38 C.F.R. § 4.130 ; Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, 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; and/or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for 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/or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for 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 hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. 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. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). In reaching the below conclusions, the Board has considered the Veteran's statements regarding the severity and frequency of psychiatric symptoms. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362 (2005). Thus, in the assignment of each of the ratings, the Veteran's statements have been weighed in with the medical evidence. The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018). Turning to the relevant evidence of record, the Veteran underwent a VA examination in June 2014 and was diagnosed with PTSD. It was opined that the best summary of the Veteran's level of occupational and social impairment was 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. The Veteran reported that he was close to his brother and his sister. His marriage of 42 years was good, and he had good relationships with his three grown children. He volunteered for a food pantry associated with his church and spent about 15 to 20 hours weekly volunteering outside of his home. After military service he had worked from 1969 to 1972 at an "RCA" plant until it closed in 1972. He had then worked at a brewery for 34 years until he retired in 2006. He had graduated from high school and had obtained certificates in industrial maintenance and welding, and began one in electrical, but stopped because they both had jobs and small children. He had never received psychiatric treatment. With respect to PTSD symptoms, the Veteran had intrusive symptoms, persistent avoidance of stimuli associated with the traumatic events, negative alterations in cognitions and mood associated with the traumatic events, marked alterations in arousal and reactivity associated with the traumatic events. He also had a depressed mood, and chronic sleep impairment. His affect was congruent with his stated mood and content of speech. Eye contact was maintained appropriately throughout session. His speech was appropriate in volume, pitch, tone, and pace. His overall appearance was neat and well-groomed. He was fully oriented, thought processes and reality testing were intact and no perceptual disturbances were reported or observed. He did not endorse current suicidal or homicidal ideation. The examiner reported that the Veteran was quite functional throughout his life, but as he began to retire, all the symptoms came flooding back. It was noted that the Veteran was "quite an under[-]reporter", and was loathe to discuss negative cognitions, resentments, etc. For example, he reported that sleep was not a problem at all, but upon further questioning, noted that he slept approximately from 11 p.m. to 2 a.m. He was capable of managing his financial affairs. The examiner noted symptoms of avoidance, persistent distorted cognitions about the cause or consequences of the traumatic events, feelings of detachment or estrangement from others, hypervigilance, chronic sleep impairment, and depressed mood. The examiner noted the Veteran as being "quite the under reporter, and [as being] loathe to discuss negative cognitions, resentments, etc." For example, the Veteran reported no sleep issues but upon further questioning indicated that he sleeps from approximately 11pm-2am, gets up for a couple of hours at least, and is out of bed by 6am. The Veteran reported that he had not sought any mental health treatment. An August 14, 2017 private treatment records reflect that following a bone marrow biopsy, the Veteran was diagnosed with leukemia. As noted above, the Veteran, through his representative, asserted that his PTSD symptoms had worsened at his November 2017 Board hearing. A February 2019 VA examination reflects that the diagnosis was again PTSD and the examiner reported that it was well accepted in the psychological and medical communities that chronic, life-threatening illnesses could cause and/or exacerbate mental health issues. While not causative, the Veteran's health issues had increased his mental health symptoms. The best summary of the Veteran's level of occupational and social impairment was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran had continued to live with his wife of 46 years since his last psychiatric examination in 2014. He reported positive relationships with his three grown children. He sometimes became irritable with his wife. He mostly stayed to himself. He went to church but did not interact much. He did not report engaging in activities with friends. He avoided crowds, including stores when crowded. He was always on guard and sat with his back to the wall when he went to restaurants. He investigated every sound in the house and had his weapons nearby. He denied outbursts of anger. He had not worked since retiring in 2006. He had volunteered at his church's food pantry about four hours a week. He reports that he typically got along adequately with the other volunteers. The Veteran had had no mental health treatment by the VA or outside providers, and he did not take psychiatric medication. He was not followed by the VA for PTSD. He worried in general and always felt nervous and keyed up, and always on guard. However, he denied regular panic attacks. He regularly felt sad and had days with sad mood and low motivation several days a week. His wife tried to get him to get up and get out of the house (with little success). He did not neglect hygiene. His concentration had become worse as he has experienced more depressive symptoms, such as forgetting what he had read. He would forget things that his wife told him. His wife complained that he was isolated and not motivated to do activities. His affect was flat. He had chronic trouble sleeping, including staying asleep. He took over-the-counter sleep aids with slight effectiveness, and he had nightmares several nights a week. It was reported that the Veteran experienced dissociative experiences several times a week and had intrusive memories. He sometimes cried during flashbacks. He had had difficulty coping with general life stressors, such as illness of family members. He would become overly focused on his problems, worried excessively, and would lose concentration. He avoided triggering memories, fireworks, and war movies. Associated with past traumatic events, he had intrusion symptoms, persistent avoidance of stimuli associated with the traumatic event, negative alterations in cognitions and mood, and marked alterations in arousal and reactivity. The Veteran had psychiatric symptoms of a depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and neglect of personal appearance and hygiene. The Veteran did not have psychiatric symptoms of panic attacks that occur weekly or less often; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; memory loss for names of close relatives, own occupation, or own name; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; 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; and disorientation to time or place. The examiner further reported that on mental status examination the Veteran was fully oriented and cooperative. He made minimal eye contact and was easily engaged. Speech and language were within normal limits. His mood appeared to be depressed and his affect was flat and mood congruent. No perceptual disturbances were described or noted. His thought process, content, and associations were generally coherent. Suicidal or homicidal ideations were not endorsed or noted. His insight was fair. He appeared to minimize his difficulties. His judgment was fair. His abstract reasoning appeared to be developmentally intact. No gross cognitive impairment was noted. His memory appeared to be fair. Overall, his presentation appeared to be genuine and he was judged to be a reliable historian. Other symptoms due to PTSD were reduced concentration, most obvious when experiencing depressed moods; anhedonia; intermittent neglect of appearance/hygiene; ruminative thoughts; and grief. He was capable of managing his financial affairs. An initial rating in excess of 30 percent from January 15, 2014 to November 14, 2017 for PTSD, is denied. Based on a review of the evidence of record, for the period prior to November 15, 2017, the Board finds that a rating in excess of 30 percent is not warranted. The Veteran's symptoms do not more closely approximate the disability picture contemplated by the rating criteria warranting a 50 percent or higher rating. Further, at no time prior to November 15, 2017 does the evidence or the Veteran indicate that his PTSD symptoms have actually worsened. A holistic review of the severity, frequency, and duration of the signs and symptoms of his PTSD disability prior to November 15, 2017 does not demonstrate that the Veteran's PTSD symptoms produced occupational and social impairment with reduced reliability and productivity. In fact, prior to November 15, 2017, the only relevant medical evidence of record is the Veteran's January 2014 VA examination which is consistent with the currently-assigned 30 percent rating. In fact, the 2014 psychiatric examiner assessed the Veteran as having experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. While records pertaining to the Veteran's August 2017 leukemia diagnosis are of record, a diagnosis alone does not equate to a worsening of PTSD symptoms. There is no indication that the Veteran was experiencing an increase in his PTSD symptoms until such was indicated during his November 15, 2017 Board hearing. Prior to November 15, 2017, the evidence of record demonstrated that the Veteran's symptoms associated with his PTSD closely approximated the symptoms contemplated by a 30 percent rating. Prior to November 15, 2017, the preponderance of the evidence does not demonstrate that his PTSD is so incapacitating as to be consistent with the symptoms identified by the rating criteria for occupational and social impairment with reduced reliability and productivity during this period. Further, there is no evidence the Veteran suffered from the symptoms necessary for a higher, 50 percent rating such as difficulty in understanding complex commands, impairment of short or long term memory, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective work and social relationships during this period. Throughout this period of the appeal, when considering all the pertinent evidence, the Board finds that the Veteran's PTSD was productive of occupational and social impairment occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Accordingly, the Board finds that from January 15, 2015 to November 14, 2017, the evidence does not support awarding an initial disability rating in excess of 30 percent for PTSD. An initial 70 percent rating, but no higher, from November 15, 2017, for PTSD, is granted. As discussed above, the Veteran was first diagnosed with leukemia in August 2017; however, he first asserted that his PTSD symptoms had worsened at his November 15, 2017 Board hearing. The February 2019 VA examiner attributed the Veteran's worsening PTSD symptoms to his leukemia. Resolving all reasonable doubt in the Veteran's favor, the Board finds that his PTSD increased in severity as of the November 15, 2017 Board hearing, and that the February 2019 VA examination provided evidence that his PTSD more closely approximated occupational and social impairment with reduced reliability and productivity warranting a 70 percent disability rating. See McGrath v. Gober, 14 Vet. App. 28 (2000) and Tatum v. Shinseki, 24 Vet. App. 139 (2010) (holding that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date). Although the evidence does not show symptomatology such as 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, and spatial disorientation, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are designed to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 70 percent rating appear to be reasonably demonstrated. However, a higher rating of 100 percent is not warranted as the Veteran does not have the type of symptoms that warrant this rating, nor the level of impairment required. The Veteran does not present with symptoms such as gross impairment in thought process or communication, delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. As such, the record does not show total occupational and social impairment as required for the 100 percent schedular rating. For the reasons stated above, the preponderance of the evidence is against the assignment of an initial rating in excess of 30 percent for the period from January 15, 2014 to November 15, 2017. Moreover, the Board finds that the criteria for a 70 percent rating, but not higher, for PTSD for the period as of November 15, 2017 are met. However, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.