Citation Nr: 21071768 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-36 365 DATE: December 1, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period prior to June 20, 2019 is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT For the period prior to June 20, 2019, the preponderance of the evidence indicates that the Veteran's psychiatric disability was shown to be productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as sleep impairment, irritability, hypervigilance, depression, poor concentration, and social isolation. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period prior to June 20, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.17, 4.130, Diagnostic Code (DC) 8045-9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to April 1971. In August 2018, the Board remanded the claim for service connection for TBI, and the claim for a rating higher than 30 percent for PTSD, for additional development. In April 2020, the Board denied the Veteran's claim. Subsequently, the Veteran appealed the denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a November 2020 decision, the Court granted the parties' Joint Motion for Partial Remand (JMPR), partially vacated the Board's April 2020 decision and remanded the matter to the Board for action consistent with the ruling. In an April 2021 decision, the Board remanded the claim for additional development. The Board finds that the Regional Office (RO) substantially complied with its remand directives, and the Board may now proceed with adjudication. 1. Entitlement to a disability rating in excess of 50 percent for PTSD for the period prior to June 20, 2019 The Veteran asserts that his PTSD with traumatic brain injury (TBI) residuals is more severe than is reflected by his current evaluation for the period prior to June 20, 2019, the date on which a 100 percent rating was assigned. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran's PTSD with TBI and recurrent major depressive disorder with psychotic features is rated under DCs 8045-9411. The criteria for DC 8045 provide that there are three main areas of dysfunction that may result from a traumatic brain injury and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral dysfunction, and physical (including neurological). Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. DC 8045 provides that emotional/behavioral dysfunction is to be evaluated under 38 C.F.R. § 4.130 (Schedule of ratings mental disorders) when there is a diagnosis of a mental disorder. Id. Note (1) to DC 8045 explains that there may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Id. For residuals of TBI that do not clearly warrant separate ratings under the rating schedule, the criteria for disability ratings for TBI are broken down by a table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" and contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. The table provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." Not every facet, however, has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100-percent evaluation should be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Id. The 10 important facets in the table of "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" are as follows: (1) Memory, attention, concentration, executive functions; (2) Judgment; (3) Social interaction; (4) Orientation; (5) Motor activity; (6) Visual spatial orientation; (7) Subjective symptoms; (8) Neurobehavioral effects; (9) Communication; and (10) Consciousness. Id. The evidence shows that the Veteran's psychiatric symptoms are not differentiable from the symptoms of TBI. Therefore, emotional/behavioral dysfunction is to be rated under DC 9411, and a single evaluation has been assigned. Id. PTSD is rated under DCs 9411 which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, 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 found to be generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as a depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, DC 9411. A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. Id. 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 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); and the 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit has 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, 11617 (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, DC 9411. Further, 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). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 71 and 80 reflect that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging from 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 is generally able to function "pretty well," and has some meaningful interpersonal relationships. 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the 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 after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's increased rating claim was originally certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. 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 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, the suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In this case, VA treatment records in May 2012 recorded complaints of difficulty sleeping, nightmares, anger, denied suicidal or homicidal history, irritability, and hypervigilance. There was no history of prior mental health treatment. The Veteran reported frequent conflict at work that typically resulted in him leaving a job or losing it. He related a history of 120 to 130 jobs since service. The Veteran was at that time employed with the US Postal Service. He reported that he graduated with honors from trade school in carpentry. He related a history of two marriages. He had been married to his current spouse for 10 years. The clinician described the Veteran as appropriately groomed. His speech was fluent. There was no perception abnormality. Thought content was normal, linear, and logical. From 2012 to 2013, VA treatment records described the Veteran as alert and oriented times three. He was coherent and his gait was steady. No focal neurologic deficits were noted. He denied headaches. The records failed to document a diagnosis or treatment for TBI. During his January 2013 VA examination for PTSD, the Veteran reported poor sleep, and it was noted that he had sleep apnea treated with a CPAP. The Veteran endorsed depression, social isolation, avoidance of stimuli, difficulty concentrating, anxiety and chronic sleep impairment. He denied hallucinations and suicidal ideation. He had been married to his current wife for 10 years and reported being very happy with his young son and wife. The Veteran enjoyed gardening, hunting, and fishing. The examiner noted that the Veteran exhibited good judgment and abstract thinking. The examiner opined that the Veteran's psychiatric symptoms was productive of occupational and social impairment due to mild or transient symptoms, consistent with a 10 percent rating. The examiner found no objective evidence of TBI. In January to March 2013 VA treatment records, the Veteran reported auditory hallucinations of conversations. His wife reported that his temper and other symptoms were improving, and he was negative for homicidal and suicidal ideation. VA treatment records from 2014 to 2017 noted symptoms of anxiety, impaired sleep, hypervigilance, anger problems, depression, and irritability associated with PTSD. The Veteran repeatedly denied experiencing suicidal or homicidal ideations. His psychiatric impairment was described as mild to moderate. In an August 2014 statement in support of his claim, the Veteran asserted that he was prescribed powerful medications to treat his PTSD. He endorsed a positive relationship with his new wife and son and that he was working. In August 2014 VA treatment records, the Veteran's mood and affect were noted as depressed, irritable, anxious, and angry. There was no evidence of violent outbursts in the records. Paranoia was noted. Generally, he was described as appropriately groomed. Motor movement was normal. He had good eye contact. Speech was normal in rate and rhythm. No perception abnormalities were identified. Thought flow was linear and goal-directed. He was alert and oriented. Judgment and insight were good to fair. October 2014 VA treatment records reflect the Veteran reporting that during his arguments with his wife, there was occasional physical violence. In March 2017 VA treatment records, a clinician noted depressed mood, anxiety, and suspiciousness. In April 2017, the Veteran denied suicidal and homicidal ideation and audiovisual hallucinations. In October 2017, the Veteran endorsed anxiety, depressed mood, and sleep impairment. He was more anxious and upset than usual as reportedly, he found an upsetting anonymous note on his work desk. He managed the stress well by reporting the incident to the police and supervisors at work. He denied hallucinations or delusions, as well as suicidal and homicidal ideation. The Veteran reported that he continued to work on his house and yard which helped to reduce his stress. The Veteran was described as appropriately groomed. Motor movement and gait were normal. He had good eye contact. His attitude was cooperative. Speech was normal in rate and rhythm. The Veteran's mood was depressed, irritable, and anxious. His affect was appropriate. Thought flow was linear and goal-directed. There were no thought content abnormalities identified. Judgment and insight were good. The clinician diagnosed depression with psychotic features. In May 2018 VA treatment records, the Veteran reported that his previous work incident involving a threatening anonymous note remained under investigation by his employer. PTSD symptoms included hypervigilance, avoidance of stimuli, startle response, and panic with triggers. In November 2018, the Veteran denied suicidal and homicidal ideation. He was described as appropriately groomed. Motor movement and gait were normal. He had good eye contact. His attitude was cooperative. Speech was normal in rate and rhythm. The Veteran's mood and affect were anxious. Thought flow was linear and goal-directed. There were no thought content abnormalities identified. Judgment and insight were good. Neurologically, the Veteran was grossly intact. He denied syncope, dizziness, headaches, weakness, or visual changes. In December 2018, the Veteran reported that he remained employed as an electronics technician, working six days per week. September 2018 Family Medical Leave Act (FMLA) paperwork showed that the Veteran needed leave beginning May 2018 due in part to his inability to perform his job due to his PTSD. An associated psychiatric evaluation report noted that the Veteran's PTSD caused episodic flare-ups that interfered with his ability to do his job functions. The report also noted anger management problems, hypervigilance, exaggerated startle response, panic, flashbacks, and nightmares. In April 2019, the Veteran reported having hallucinations when taking his opiate pain medication. He reported irritability, anger management problems, hypervigilance, but he also stated he was doing better at work. During the Veteran's June 2019 VA examination for PTSD, the Veteran reported depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, difficulty in understanding complex commands, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, feelings of hopelessness, lack of interest in activities, difficulty in adapting to stressful circumstances, including work or a work like setting, passive suicidal ideation, impaired impulse control, and persistent delusions or hallucinations. The examiner noted that the Veteran believed that he was being followed three to four times a day and he confronted the people whom he believed were following him. The Veteran reported seeing shadows and a history of hearing conversations that weren't occurring prior to taking medication about a year and a half earlier. He believed that the auditory hallucinations would return if he discontinued the medication. The Veteran was treated with medication and outpatient therapy. He denied a history of inpatient psychiatric treatment. The Veteran reported a history of suicidal ideation, with plans to kill himself many years ago, and he experienced suicidal ideation a few times per month. These findings were the basis for the staged 100 percent rating as of the date of the examination. In a March 2020 Appellate Brief, the Veteran's representative argued that the evidence supported granting a 100 percent or 70 percent disability rating throughout the period on appeal. The Veteran has also consistently asserted that his psychiatric disability is more severe than is reflected by his current evaluation for the period on appeal. While the Veteran is competent to observe his psychiatric disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his psychiatric disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the preponderance of the evidence is against granting an increased disability rating for the period on appeal. From January to March 2013, the Veteran reported auditory hallucinations. However, his other symptoms primarily consistent of sleep impairment, nightmares, anger, and other symptoms consistent with a 50 percent disability rating. During his June 2019 VA examination, the Veteran reported that he had experienced audiovisual hallucinations until a year and a half prior to the examination, when he began taking a new medication for his psychiatric conditions. While the Veteran is competent to report these symptoms, there is no mention of such hallucinations in his treatment records other than from January to March 2013. Notably, according to multiple treatment records, he was negative for suicidal and homicidal ideation during this period. Additionally, the Veteran has maintained marital and familial relationships and been employed for much of the period on appeal. There is evidence of physical violence in October 2014, but the Veteran's other VA treatment records and VA examinations are negative for physical violence. Finally, while the Veteran reported a history of suicidal ideation in his June 2019 VA examination for PTSD, he denied suicidal ideation throughout the period on appeal in his VA treatment records and VA examination reports. Other than these instances of more severe symptoms, the Veteran's symptoms generally included depression, anxiety, anger, sleep impairment, nightmares, and hypervigilance, which are consistent with a 50 percent disability rating up until the date of the June 2019 VA examination. Based on these facts, the Board concludes that the preponderance of the evidence is against finding that the Veteran's psychiatric disability resulted in occupational and social impairment in most areas or in total occupational and social impairment. Accordingly, the Veteran's claim for an increased rating is denied. Neither the Veteran nor his representative has raised any other issues aside from TDIU, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Veteran has reported that he had a history of 120 to 130 jobs since service. See May 2012 VA treatment records. He also submitted September 2018 Family Medical Leave Act (FMLA) paperwork showing that he needed leave beginning May 2018 due in part to his inability to perform his job due to his PTSD. It is unclear from the evidence of record if the Veteran experienced difficulty in securing or following a substantially gainful occupation during the period on appeal. A TDIU claim is part of an increased rating claim when such claim is raised by the record. Here, TDIU has been raised by the record and is remanded for initial development by the RO. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: Furnish the Veteran a 38 C.F.R. § 3.159(b) letter and application in conjunction with his TDIU claim. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, Associate 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.