Citation Nr: 21069317 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-13 333 DATE: November 18, 2021 ORDER Entitlement to a rating in excess of 30 percent disabling prior to August 1, 2016 for service-connected posttraumatic stress disorder (PTSD) with anxiety disorder, not otherwise specified with a history of atypical depressive disorder is denied. Entitlement to a rating in excess of 50 percent disabling beginning August 1, 2016 for service-connected PTSD with anxiety disorder, not otherwise specified with a history of atypical depressive disorder is granted. FINDINGS OF FACT 1. For the period prior to August 1, 2016, the Veteran's PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as a result of irritability, recklessness, hypervigilance, exaggerated startle response, problems with concentration, chronic sleep impairment and anxiety, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity or deficiencies in most areas, or total occupational and social impairment. 2. For the period beginning August 1, 2016, the Veteran's service-connected PTSD is manifested by occupational and social impairment with deficiencies in most areas as a result of psychiatric symptomatology to include irritability, hypervigilance, suspiciousness, exaggerated startle response, problems with concentration, depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent levels, flattened affect, disturbances of motivation and mood, and suicidal ideation, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. For the period prior to August 1, 2016, the criteria for a rating in excess of 30 percent disabling for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411. 2. For the period beginning August 1, 2016, the criteria for a 70 percent rating, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2003 to August 2008. In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board notes that after perfecting his appeal to the Board with a VA Form 9, the RO increased the Veteran's evaluation for PTSD to 50 percent effective August 1, 2016, in a January 2019 rating decision and supplemental statement of the case. The Veteran subsequently submitted an Appeals Satisfaction Notice in January 2019. The Veteran's representative later submitted a brief and the Veteran appeared at a hearing in February 2021. Thus, the Board finds that the Veteran intended to continue his appeal despite the submission of the Appeals Satisfaction Notice In June 2021, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its June 2021 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to a rating in excess of 30 percent disabling prior to August 1, 2016, for service-connected PTSD with anxiety disorder, not otherwise specified with a history of atypical depressive disorder is denied, and a 70 percent rating, but no higher, beginning August 1, 2016, is granted. The Veteran is currently in receipt of a 10 percent disabling rating beginning August 30, 2008, a 100 percent rating from October 28, 2014, a 30 percent rating from December 31, 2014, a 100 percent rating from May 26, 2016, and 50 percent rating from August 1, 2016. The Veteran contends that higher ratings are warranted and filed his claim for increase in June 2016 and therefore the appeal period begins in June 2015. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's service-connected PTSD is evaluated under the criteria of Diagnostic Code 9411, which provides evaluations pursuant to VA's General Rating Formula for Mental Disorders. Under the formula, a 30 percent rating is warranted when there is 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. 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; 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. 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. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (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 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Furthermore, 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). In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, a Global Assessment of Functioning (GAF) score is another component considered to determine the entire disability picture for the Veteran. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). The Board notes that VA recently updated references in its regulations to the Fifth Edition of the DSM (DSM-5), which has removed the use of GAF scores due to their inconsistency and subjective nature. The changes only apply to claims that were certified for appeal to the Board after August 4, 2014. See 80 Fed. Reg. 14,308 (March 19, 2015) (Applicability Date). Inasmuch as the Veteran's appeal was certified to the Board in February 2019, the amendments are applicable. Therefore, while the Board will note the GAF scores assigned to the Veteran, and consider such in light of the other evidence of record, they are not definitive. The Veteran's post-service treatment records reflect that the Veteran underwent psychiatric treatment to include individual therapy. The Veteran reported continued feelings of depression and anxiety. Treatment records during the relevant time periods reflect that the Veteran was repeatedly found to be alert and oriented. He was appropriately dressed and groomed. His mood was good while his affect was slightly restricted. His speech was clear, coherent, fluent, and relevant. His tone, rhythm and volume were within normal limits and he was cooperative and attentive. While the Veteran reported a suicide attempt in 2005, he subsequently denied any suicidal or homicidal intent. In May 2015, prior to the period on appeal, the Veteran underwent a VA Mental Health examination with an accompanying disability benefits questionnaire (DBQ). The examiner noted that the Veteran had PTSD, generalized anxiety disorder, panic disorder, alcohol use and cannabis use disorder. The examiner found that the Veteran's PTSD caused 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 had been married but divorced and that he had two daughters with whom he had good relationships. He also noted that while his relationship with his extended family was strained, he got along fairly well with people outside his family. The Veteran also reported that he worked in auto parts sales. Upon examination, the examiner noted that the Veteran was well groomed, alert and fully oriented. His speech was normal in rate, tone, and syntax. His thought content and process were unremarkable, and his mood presented as mildly dysphoric with generally somewhat restricted affect. He had no observable responsive to internal stimuli and denied hallucinations and delusions. He also denied suicidal and homicidal ideation. The examiner noted no observable impairment in attention, concentration, or memory. Furthermore, the Veteran endorsed irritability, recklessness, hypervigilance, exaggerated startle response, problems with concentration, chronic sleep impairment and anxiety. In January 2019 the Veteran underwent another VA Mental Health examination with an accompanying DBQ. The examiner found that the Veteran had PTSD with mild symptoms. Specifically, the examiner found that the Veteran's PTSD caused 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 married to his second wife and lived with her and his daughter. He reported that the relationships were good. The Veteran stated that he worked repairing rental properties and had previously worked in auto parts sales, but left due to having to deal with customers. Upon examination, the examiner noted that the Veteran was clean and well groomed. He was casually dressed and ambulated without visible problems. He was alert and oriented and cooperative. He maintained good eye contact and his speech was normal for rate, prosody, tone, volume, and content. His comprehension was intact and his thought process was linear and goal directed, his content unremarkable. His memory and cognition were grossly intact. The examiner found no evidence of auditory or visual hallucinations. Insight and impulse control were also intact. Furthermore, the Veteran endorsed irritability, depressed mood, suspiciousness, and chronic sleep impairment. In August 2021 the Veteran underwent another VA Mental Health examination with an accompanying DBQ. The examiner again noted that the Veteran had PTSD and that such caused occupational and social impairment with reduced reliability and productivity. The Veteran reported that he lived with his wife and daughter and that their relationships were good. He noted that he had friends and hobbies including drag racing and mechanic work, however he was unemployed. Upon examination, the examiner noted that the Veteran was alert and oriented. His mood was dysphoric with constricted affect. His judgment, insight, concentration, and memory were fair. His speech and thought processes were within normal limits and he denied homicidal ideation as well as audio and visual hallucinations. Furthermore, the Veteran endorsed irritability, hypervigilance, exaggerated startle response, problems with concentration, depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent levels, flattened affect, disturbances of motivation and mood, and suicidal ideation. In February 2021 the Veteran testified at a Board hearing. The Veteran reported that his PTSD caused panic attacks, memory problems as well as depression and anxiety. The Veteran's wife also testified that the Veteran talked about suicide often. Period prior to August 1, 2016 Following a review of the relevant evidence of record, the Board concludes that the Veteran is not entitled to a rating in excess of 30 percent for his PTSD for the period prior to August 1, 2016. In this regard, the Board finds that such disability is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as a result of irritability, recklessness, hypervigilance, exaggerated startle response, problems with concentration, chronic sleep impairment and anxiety, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity or deficiencies in most areas, or total occupational and social impairment. In this regard, the Board finds that such symptomatology, to specifically include the Veteran's chronic sleep impairment and anxiety are contemplated in his current 30 percent rating. As indicated previously, a 50 percent rating is warranted where 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 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. Based on the evidence of record, the Board finds that the Veteran's PTSD does not result in occupational and social impairment with reduced reliability and productivity. With respect to the symptoms noted to be indicative of a 50 percent rating, the Board notes that the Veteran's judgment and insight were consistently found to be good or intact. Likewise, there was no evidence of impaired abstract thinking or disturbances of mood. His speech was consistently found to be goal-directed and logical, and his affect was not found to be flattened. Additionally, there was no evidence that the Veteran experiences panic attacks, suicidal ideations or homicidal ideations and he, in fact, denied such symptoms during the period prior to August 1, 2016. Furthermore, there was no indication that the Veteran's short- and long-term memory were impaired, rather his memory was consistently found to be good or within normal limits. There was also no evidence that he had difficulty understanding complex commands. Furthermore, the Veteran reported that he had been married and lived with his wife and daughter and that they had good relationships. Furthermore, the Veteran reported friends outside of his family as well as hobbies and interests to include auto mechanic work and drag racing. All of this suggests that he was able to establish and maintain social relationships. Furthermore, the record establishes that the Veteran last worked in 2021, long after the end of the August 1, 2016 appeal period. Therefore, the Board finds that the Veteran's psychiatric symptomatology did not result in occupational impairment with reduced reliability and productivity for the period prior to August 1, 2016. The Board finds that the Veteran's documented symptoms as noted during this period are not of such a severity or frequency so as to more nearly approximate a higher rating. Therefore, the Board finds that, in the absence of more severe symptomatology more nearly approximating such ratings, the Veteran is not entitled to a rating in excess of 30 percent for the period prior to August 1, 2016. The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating criteria, to include irritability, recklessness, hypervigilance, exaggerated startle response, problems with concentration. See Vazquez-Claudio; supra; Mauerhan, supra. However, the Board finds that such symptoms do not more nearly approximate a rating in excess of 30 percent under the General Rating Formula as they are not of such a severity or frequency to result in occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. Moreover, the Board finds that, during such time period, the Veteran's psychiatric symptomatology, described above, does not more nearly approximate a 70 or 100 percent rating. Specifically, there was no evidence that the Veteran had occupational and social impairment with reduced reliability and productivity or deficiencies in most areas, or total occupational and social impairment. In this regard, the evidence fails to demonstrate such symptomatology as flattened affect; impaired speech; panic attacks; difficulty understanding complex commands; impairment of memory, judgment, or abstract thinking; disturbances of motivation and mood; obsessional rituals; near-continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; gross impairment in thought processes or communication; delusions or hallucinations; grossly inappropriate behavior; persistent danger of hearing self or others; inability to perform activities of daily living; disorientation to time or place; or memory loss. Therefore, for the foregoing reasons, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent for PTSD for the period prior to August 1, 2016. Period beginning August 1, 2016 Following a review of the relevant evidence of record, the Board concludes that for the period beginning August 1, 2016, the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as irritability, hypervigilance, suspiciousness, exaggerated startle response, problems with concentration, depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent levels, flattened affect, disturbances of motivation and mood, and suicidal ideation. As indicated previously, 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; 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. With respect to the symptomatology considered in the assignment of a 70 percent rating, the probative evidence of record reveals that the Veteran endorsed a history of suicidal ideation as well as active suicidal ideation on his August 2021 VA examination as well as during his June 2021 hearing and at various times in his treatment records. The Veteran also noted that while he had friends and good relationships with his family, he was prone to irritability. Furthermore, while acknowledging that VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected psychiatric disability, the Court recently indicated that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). Here, the Veteran not only reported suicidal ideation, but he had a history of at least one suicide attempt, albeit prior to the appeal period. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 70 percent rating for PTSD has been met for the period beginning August 1, 2016. However, the Board finds that the criteria for a 100 percent rating under the General Rating Formula are not met. In this regard, the evidence does not show that the Veteran has total social and occupational 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. Indeed, the record does not reflect that the Veteran's PTSD symptoms have resulted in total social and occupational impairment. The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating schedule, including exaggerated startle response, hypervigilance, and irritability. See Mauerhan, supra. However, the Board finds that such symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula as they are not of such a duration, severity, or frequency to result in total occupational and social impairment. Ultimately, the Board finds that the Veteran's PTSD does not warrant a rating in excess of 70 percent. Ultimately, the Board finds that a 70 percent rating for PTSD is warranted for the period beginning August 1, 2016; however, the preponderance of the evidence is against a rating in excess of 70 percent. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Other Considerations The Board has considered whether further staged ratings under Hart, supra, are appropriate for the Veteran's service-connected disability; however, the Board finds that his symptomatology has been stable for such disability throughout the appeal periods. Therefore, assigning further staged ratings for such disability is not warranted. In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher ratings, than those assigned, pursuant to any applicable criteria at any point pertinent to this appeal. In adjudicating the Veteran's claims herein, the Board has also considered the applicability of the benefit of the doubt doctrine. As previously noted, the Board found that a 70 percent rating, but no higher, for PTSD was warranted for the period beginning August 1, 2016; however, the preponderance of the evidence is against a rating in excess of 70 percent for the period beginning August 1, 2016, and in excess of 30 percent for the period prior to August 1, 2016. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, except as has been applied to the rating assigned herein, and his claims must be otherwise denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.