Citation Nr: 21075295 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 20-19 962 DATE: December 20, 2021 ORDER An initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, PTSD are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1997 to June 2017. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In November 2020, the Board remanded the case for further development and adjudicative action. In a September 2021 rating decision, the RO granted an increased disability rating of 70 percent for PTSD and a total disability rating based on individual unemployability (TDIU), both effective April 17, 2021. The staged PTSD rating does not represent the maximum disability rating assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum benefit sought. As higher ratings are available and a claimant is presumed to be seeking the maximum available rating for disabilities, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). However, as the September 2021 rating decision granted a TDIU throughout the period, entitlement to a TDIU is not on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). As that rating decision did not constitute a full grant of the benefits sought on appeal, the issue remained in appellate status. Entitlement to an initial disability rating in excess of 50 percent prior to April 17, 2021, and in excess of 70 percent thereafter, for PTSD. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Under 38 C.F.R. § 4.130, major depression is rated pursuant to the General Rating Formula for Mental Disorders. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. A 30 percent rating is assigned 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 mild memory loss (such as forgetting names, directions, recent events). 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. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 an inability to establish and maintain effective relationships. A 100 percent evaluation 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Board notes that the records contain various global assessment of functioning (GAF) scores. However, GAF scores have been found to be unreliable and not sufficient evidence for rating a psychiatric disorder. See Golden v. Shulkin, 29 Vet. App. 221, 226 (2018). 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. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that the severity of his PTSD warrants assignment of higher disability ratings. At a private June 2015 counseling assessment, the Veteran reported feeling very anxious, impatient, irritable, and hypervigilant. He reported anger outbursts, and avoiding conversations associated with his PTSD. He was diagnosed with PTSD with problems related to social environment, including impaired relationships, impulsive feelings of ineffectiveness, shame, social withdrawal, and loss of previously sustained relationships. Private primary care notes from March 2017 and April 2017 shows that the Veteran denied any suicidal or homicidal ideation. A generalized anxiety disorder screen showed report of occasional difficulty doing work and taking care of things around the house/getting along with others. The Veteran reported some difficulty concentrating, feeling down, depressed, and hopeless as well as having little interest in doing things. An April 2017 private outpatient screening note shows that the Veteran denied nightmares, denied avoidance of thoughts and situations, denied feeling constantly on guard, watchful, or easily startled and denied feeling numb or detached from others. The Veteran had a VA PTSD examination in October 2017. The Veteran reported being separated from his wife, but living with a significant other. The examiner conducted a records review and in-person examination. The examiner noted symptoms including depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mood and motivation disturbances, difficult establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The Veteran denied and suicidal or homicidal ideation. The examiner concluded that the Veteran's psychiatric symptoms result in occupational and social impairment with reduced reliability and productivity. The examiner's behavior observations note that the Veteran was alert and cooperative at the examination. His mood was anxious with restricted affect. He was oriented to person, place, time, and situation, with tangential speech. Thought processes included paranoia, grief over loss of prior mental stability, and concerns about future ability to maintain employment. His attention was impaired, and he was easily distracted. He had difficulty expressing his thoughts, and was distracted at times. Other symptoms included loss of confidence, decreased self-esteem, fear of inability to obtain and sustain employment due to loss of mental and cognitive acuity. He was capable of managing his financial affairs, and "did not claim functional impairment." Private notes prepared by a nurse practitioner between April 2018 and March 2019 show consistent complaints of anxiety and depression. In April 2018, the Veteran reported teaching yoga, eating healthy, and exercising frequently. Still, he had occasional memory loss and "ups and downs" in mood and anxiety. In the August 2018 NOD, the Veteran reported losing 4 jobs in the last 2 years due to PTSD symptoms. He also reported attending counseling for anger issues and maintaining relationships, being obsessive and unable to function in crowded places. He further reported receiving disciplinary actions before retiring which resulted in demotion and reduction in pay. A September 2019 VA vocational rehabilitation narrative report shows that the Veteran's PTSD rendered him, per his report, "Unable/ Limited/Guarded ability to engage in employment duties that present significant stress, pressure, demanding timeframes, dealing with difficult people, issues with memory and word recall and crowded environments." He worked, part-time, as a yoga teacher. He reported that he continued to apply for jobs in the IT field. A December 2019 VA rehabilitation plan shows that the Veteran planned to pursue a graduate degree in the digital forensics/cyber investigation field. In his April 2020 VA Form 9, the Veteran reported that, since his retirement from service, holding a few part-time jobs, but being let go or leaving for medical reasons. He also reported struggling with communicating with people and depression that prevents him from leaving bed and functioning independently He further provided a list of numerous jobs, help between December 2016 and May 2019, at which he saw his hours reduced or saw his employment terminated due to social deficiency or communication problems. At a September 2020 private psychiatric evaluation, the Veteran reported that he was self-employed as a "physical therapist/massage therapist/movement coordinator." He was neatly dressed but appeared hyperalert and tense. The treating psychiatrist noted that the Veteran meets and exceeds criteria for chronic PTSD with acute exacerbations. The psychiatrist reported that the Veteran was neatly dressed, makes direct and appropriate eye contact, and denied evidence of psychomotor restlessness or retardation. The psychiatrist also reported that his speech is goal oriented and free of formal thought disorder. The psychiatrist found his mood is depressed and anxious with a constricted affect with minimal reactivity. The Veteran denied suicidal and homicidal thinking and auditory or visual hallucinations. The Veteran had another VA PTSD examination in October 2020. The Veteran reported that he was not employed after he left service, and reported that "he has had no interviews." The Veteran also reported that he has a good relationship with his parents and younger sister. He also reported being married and having a 6 year old daughter. He further reported problems with depression, anger, and irritability adversely affect his current marriage as well as his prior two marriages. However, he reported having a good relationship with his daughter. The examiner reviewed the records and conducted an in-person examination. The examiner reported that the Veteran was oriented, cooperative with normal speech, and had goal directed thought processes. The examiner also reported that the Veteran had good judgment and insight and denied the presence of suicidal and homicidal ideation, hallucinations, and delusions. The examiner found PTSD symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, severe memory loss, flattened affect, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals interfering with routine activities, impaired impulse control, grossly inappropriate behavior, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, and disorientation to time or place. The examiner concluded that the Veteran's psychiatric symptoms result in occupational and social impairment with reduced reliability and productivity. A November 2020 private counselor's note reflects that the Veteran had consistently attended therapy appointments for his PTSD since April 2018. His attendance was "routine and on-time." A January 2021 VA psychosocial assessment note indicates complaints including chronic depression, anxiety, and memory loss. Pursuant to the November 2020 Board remand, the Veteran had another VA PTSD examination in April 2021. The Veteran reported that his relationships with his family have been the same, including having a good relationship with his daughter. He denied having close friends or spending time with friends. He also reported that his symptoms have worsened and affect his occupational and daily functioning, well-being, and relationships. He denied experiencing suicidal or homicidal ideation or manic or psychotic symptoms. The examiner reported that the Veteran was alert and oriented to person, place, time, and situation. The examiner also reported that his thinking processes were linear, goal-directed, and logical. The examiner found the presence of psychiatric symptoms of internal and external avoidance, alterations in mood and cognition, hypervigilance, exaggerated startle response, concentration problems, irritability, anhedonia, depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner concluded that the Veteran's psychiatric symptoms result in occupational and social impairment, with deficiencies in most areas. After engaging in a holistic analysis assessing the severity, frequency, and duration of the signs and symptoms of the Veteran's major depression, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that an initial rating of 70 percent, but no higher, is not warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). In this regard, the psychiatric examinations of record all show the presence of symptoms indicative of a 70 percent rating, including obsessional rituals which interfere with routine activities, impaired impulse control, and difficulty in adapting to stressful circumstances. However, the Veteran has not experienced total occupational and social impairment. In this regard, the examiners of record have found that the severity of the Veteran's symptoms result in occupational and social impairment with reduced reliability and productivity or deficiencies in most areas, but not total occupational and social impairment. In particular, the October 2020 examiner reported many symptoms indicative of a 100 percent rating, including intermittent inability to perform activities of daily living, disorientation to time or place, and severe memory loss. However, the examiner's report indicated that the Veteran was oriented, well groomed, and did not note severe memory impairment. In addition, the examiner found that he Veteran's symptoms result in occupational and social impairment with reduced reliability rather than deficiencies in most areas or total occupational impairment. In addition, the Veteran has consistently reported having a good relationship with his parents and daughter, which shows that he does not experience total social impairment. Therefore, the Veteran's psychiatric disability has not resulted in total social impairment at any time during the appeal period. The persuasive evidence of record shows that the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment throughout the period on appeal. Therefore, the benefit of the doubt doctrine is not applicable and an initial 70 percent rating, but not higher, for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. DAVID JIMERFIELD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.