Citation Nr: 21071724 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-00 254 DATE: December 1, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT During the appeal period, the Veteran's PTSD more closely approximates occupational and social impairment with deficiencies in most areas; however, total occupational and social impairment has not been demonstrated or more nearly approximated. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1969 to February 1971 and from July 1971 to August 1976. As a lengthy period of time has taken place during this appeal, it is best that the procedural history of this case is clarified. On December 15, 2014, VA received the Veteran's claim for an increased rating for his service-connected depressive and anxiety disorder, disability (also referred to as PTSD). This matter arises before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that continued a 30 percent rating for unspecified depressive disorder and unspecified anxiety disorder (also previously diagnosed as posttraumatic stress disorder (PTSD). In December 2020, the Board remanded this matter for readjudication and issuance of a supplemental statement of the case. In a December 2020 rating decision, the RO recharacterized the disability as PTSD, and granted a higher 50 percent rating, effective December 15, 2014, the date of the claim for an increased rating. The Board remanded this matter in August 2021 for additional development. As the actions specified in the prior remands have been substantially completed, the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 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). Increased Rating 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 determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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 is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). However, in increased rating claims, when the factual findings show distinct time periods during which the veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service-connected PTSD is rated as 50 percent disabling during the entire appeal period. The Board notes that the Veteran filed his claim for an increased rating on December 15, 2014 and, therefore, the period for consideration is for one year before the claim. The Veteran contends that he is entitled to a higher rating because his psychiatric symptoms were more severe during this period than contemplated by the assigned rating. The Veteran's PTSD is rated under Diagnostic Code 9411. Pursuant to a General Rating Formula for Mental Disorders, specified in 38 C.F.R. § 4.130, a 50 percent rating is appropriate 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 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 rating is warranted 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (e.g., work or work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38C.F.R. §4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. The symptoms associated with each rating under the General Rating formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating formula. See id. When rating a mental disorder, VA 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. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA shall assign a rating 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). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In other words, 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). The Board notes that the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 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-V), 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. See Golden v. Shulkin, 29 Vet. App. 221 (2018). As stated previously, the Veteran's service-connected PTSD is rated at 50 percent disabling since December 15, 2014, and he contends that he is entitled to a higher rating because his psychiatric symptoms were more severe during this period than contemplated by the assigned rating. An April 2015 statement by the Veteran indicated that he feels shell shocked because he jumps out of his skin over simple things. He stated that he has panic attacks, just not as frequently as 2 to 3 times a week, and he related that he has memory loss from time to time, such that he cannot recall what he eats for breakfast. The Veteran also stated his wife threatened to divorce him if his mood does not change. An April 2015 VA examination by a VA psychologist indicated that she reviewed the Veteran's claims folder and conducted an interview. The Veteran stated that he experienced insomnia and thinks about Vietnam often. The Veteran reported passive thoughts of death, intrusive, trauma-related thoughts, and he stated that he has good days and bad days. He indicated that he feels worthless and experiences anxiety, depression, anger, and difficulty concentrating. The Veteran stated that he lives with his wife who he doesn't really get along with and isolates himself from others because he gets aggravated easily. He related that he does not have friends and is estranged from his daughter. The Veteran stated that he was unemployed due to physical injuries, and he related that he was a good worker when employed. The April 2015 VA psychologist indicated that the Veteran had mild memory loss such as forgetting names, directions, or recent events. She stated that the Veteran was capable of managing his own financial affairs and opined that the Veteran exhibited 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. A December 2015 letter by the Veteran's wife stated that ever since she met him shortly prior to May of 2012 he experienced sleeping issues and was jumpy, nervous, and short tempered. She related that he had horrible nightmares and would sweat profusely and wake up yelling. The Veteran's wife indicated that he has a short-term memory, a short attention span, and cries easily. She stated that he was depressed and unable to perform simple tasks like taking out the trash out on garbage day, and that his symptoms are worsening. A July 2019 VA examination by a VA psychiatrist indicated that he reviewed the Veteran's claims file and conducted an interview. The Veteran stated he was upset and depressed from time to time but did not have suicidal ideation. He stated that he was anxious around people and fireworks. Symptoms include avoidance behaviors, persistent negative emotional state, irritable behavior and angry outbursts, hypervigilance, sleep disturbance, depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He related that the Veteran was divorced and estranged from his daughter. The July 2019 VA psychologist stated that the Veteran was oriented to time, place, and situation, did not show memory impairment, had coherent speech and thought process, and did not experience delusions or hallucinations. His mood is depressed. He opined that the Veteran experienced social and occupational 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. A September 2020 VA psychiatry record reflects that his mood fluctuates with pain issues. He still has intermittent intrusive memories, hypervigilance, avoidance and occasional nightmares. On mental status examination, the Veteran was casually dressed and groomed appropriate for the weather. His thought process was logical and goal oriented. He denied suicidal or homicidal ideations and denied auditory or visual hallucinations. His insight was fair and judgment was good. He was alert and oriented to person, place and time. Recent and remote memory was intact. In a February 2021 mental health treatment record the Veteran stated that he was experiencing depressive symptoms that included sad mood and passive suicidal ideation. In June 2021 VA psychiatry record reflects that the Veteran stated he continued to do well. His mood remains good. He still has intermittent intrusive memories, hypervigilance, and avoidance. He denied suicidal or homicidal ideation or auditory or visual hallucinations. The Veteran reported his sleep and appetite were fine. In a November 2021 written brief, the Veteran's representative reiterates the Veteran's prior reports of experiencing panic attacks and memory loss from his notice of disagreement and VA form 9. His representative states there are no annotations regarding panic attacks or memory issues in the July 2019 VA examination. Further, he asserts that the Veteran should be viewed as credible and competent in being able to relay his current symptoms. Lastly, the representative argues that the Veteran's level of impairment has exceeded the criteria for a 50 percent rating before December 15, 2014. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his service-connected PTSD more nearly approximates the criteria for a 70 percent rating, but not higher, during the appeal period. 38 C.F.R. § 4.7. In making this finding, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assignment of a higher rating. Mauerhan, 16 Vet. App. at 436. During the appeal period, the evidence of record shows that the Veteran's PTSD has manifested primarily by symptoms such depression, anxiety, irritability, anger, nightmares, chronic sleep impairment, intrusive thoughts, panic attacks, hypervigilance, avoidant behavior, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, and passive suicidal ideation. The symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent rating. Although the evidence does not show symptomatology such as obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; impaired impulse control; 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. Id. 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 demonstrated during the appeal period. However, the Board emphasizes that the symptoms associated with the Veteran's PTSD do not meet the criteria for the maximum 100 percent, rating at any time. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's PTSD. The evidence of record does not indicate that the Veteran exhibited persistent delusions; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. While he is unemployed, the record does not show that he has total occupational impairment. In addition, the Veteran had not been found to have any memory loss for names of close relatives, his own occupation, or his own name. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of a 100 percent rating at any time during the appeal period. Accordingly, the Board finds that the criteria for a 70 percent rating, but not higher, for PTSD are met. The Board also finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent at any period during the appeal. 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 Ahuva D. Sunshine 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.