Citation Nr: 21005437 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-24 187A DATE: February 1, 2021 ORDER An initial rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) from the June 27, 2011 effective date of the grant of service connection to February 22, 2017 is granted. An increased 70 percent rating, but no higher, for PTSD, effective February 23, 2017, is granted. FINDINGS OF FACT 1. From the June 27, 2011 effective date of the grant of service connection to February 22, 2017, the Veteran’s PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity. 2. From February 23, 2017, the Veteran’s PTSD was characterized by occupational and social impairment with deficiencies in most areas. Total occupational and social impairment is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent rating, but no higher, for PTSD, from June 27, 2011 to February 22, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for a 70 percent rating, but no higher, for PTSD for the period from February 23, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1967 to June 1969, to include service in the Republic of Vietnam. He is the recipient of the Combat Infantry Badge. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision that granted service connection for PTSD with an evaluation of 30 percent effective June 27, 2011. In May 2018, the Veteran and his wife testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded this case in July 2018 for additional development. While in remand status, the Regional Office (RO) issued an April 2020 rating decision assigning the Veteran an increased 70 percent rating for PTSD effective September 23, 2019. As this constitutes a partial grant of the benefit sought, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). As the actions specified in the prior remand have been substantially completed, this matter has 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). Initial Higher Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 3.321 (a), 4.1. 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, 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 (1999); Hart v. Mansfield, 21 Vet. App. 505 (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. 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 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to be able to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: a 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 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. 38 C.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). 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. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018). 1. Entitlement to an initial rating in excess of 30 percent for PTSD from the June 27, 2011 effective date of the grant of service connection to September 22, 2019. The Veteran seeks entitlement to an initial increased rating for his service-connected PTSD, which is rated 30 percent disabling prior to September 23, 2019. The Veteran contends that he is entitled to a higher rating because his PTSD and its associated symptoms are more severe than contemplated by the assigned rating. In fact, the Veteran’s representative asserted in a December 2020 brief that the Veteran has set forth statements of symptoms for this period that are “consistent with the higher rating formula for 50 percent” rating criteria. For the reasons specified below, the Board concurs with the Veteran’s representatives contentions in the December 2020 brief, as outlined immediately above, and finds that the Veteran is entitled to an initial rating of 50 percent, but no higher, for PTSD since the June 27, 2011 effective date of the grant of service connection to February 22, 2017. During the period on appeal, the Veteran reported experiencing depression, anxiety, nightmares, social isolation and hypervigilance. He described being a “loner” with very few friends, difficulty leaving the house, frequently getting out of bed to check things out, broken relationships, and confrontations with neighbors that led to them avoiding him. He stated that his symptoms have impacted his relationships with his children, his current wife and his ex-wife. Further, the Veteran’s representative indicates in a December 2020 brief that the Veteran would like it to be clarified that despite an examiner indicating that the Veteran was not on constant medication, he in fact was on medication. The Veteran is competent to report these lay observable symptoms, and there is no evidence that his statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's statements are entitled to significant probative weight as to the severity of his PTSD during the period on appeal. The Veteran underwent a VA examination in August 2011. Upon examination, he endorsed symptoms of depressed mood, anxiety, sleep impairment, mild memory loss, circumstantial, circumlocutory or stereotyped speech, social isolation and withdrawal. He reported that he had never been involved socially with others, only having one friend from work who had recently passed away. The examiner determined that the Veteran was suffering from PTSD but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In this regard, the examiner noted that the Veteran had retired in 2007 from a thirty-nine year career in customer service at a railroad company. VA mental health treatment reviewed during this timeframe reflects that the Veteran underwent both individual and group therapy as well as regular checkups with his VA psychologist. The signs and symptoms endorsed by the Veteran and noted by his treating clinicians are consistent with those noted on the VA examinations of record. The Veteran has always denied experiencing suicidal or homicidal ideation, hallucinations, delusions, or psychosis. VA psychologists consistently found him to be well groomed, oriented to person, place, and time with logical and appropriate speech, thought process and content, displaying congruent mood and affect. The Veteran submitted an October 2012 statement from his wife who described the Veteran’s frequent nightmares where he will grab her thinking she is a fellow squad member, has grabbed his pistol from the nightstand and instructed her to “get down” not knowing where he is, awakening multiple times a night to “check the perimeter”. She further stated that whenever the Veteran goes out he experiences significant anxiety and needs to have a view of the exit and can’t have anyone behind him, needs to be in control otherwise he “goes into rages”, cries frequently, feels immense survivor’s guilt, cannot engage intimately with her, has few friends, avoids social situations, will not go anywhere by himself and does not answer the phone. She stated that the Veteran’s medication and therapy from the VA have been somewhat helpful. After careful review of the medical and lay evidence of record, and in consideration of the above legal criteria, the Board finds that the Veteran’s PTSD more nearly approximated the criteria for an initial 50 percent rating, but no higher, for the period from June 27, 2011 to September 23, 2019. During the relevant period, the Veteran's PTSD symptoms were manifested primarily by anxiety, irritability, social impairment with reduced reliability and productivity due to such symptoms as circumstantial, circumlocutory, or stereotyped speech, impairment of short and long term memory, disturbances of motivation and mood, and difficulty maintaining effective social relationships. Although the medical evidence does not show symptomatology such as panic attacks more than once per week, impaired judgment or abstract thinking, 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 rating. See Mauerhan, 16 Vet. App. at 436. Thus, even though not all the listed symptoms contemplated by a 50 percent rating are shown, the Board concludes that the actual severity, frequency, and duration of symptomatology consistent with a 50 percent rating have been sufficiently demonstrated. The Board has considered whether the Veteran's symptoms warrant the assignment of the next higher disability rating. However, the Board finds that the Veteran's signs and symptoms of PTSD did not meet the criteria for a 70 rating at any time prior to September 23, 2019. A 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. However, the evidence of record does not indicate that the Veteran exhibited at any time symptoms of the type and degree as intermittently illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, suicidal ideation, impaired impulse control, spatial disorientation, or neglect of personal appearance or hygiene. Therefore, the Board does not find that a higher disability rating of 70 percent is warranted at any time during the period on appeal. In making this finding, the Board acknowledges that there is a gap in the medical evidence between February 2016 and January 2019, during which time the Veteran did not seek out mental health treatment. However, based on the Veteran's subsequent reports to his VA treating clinicians and examiners, the Veteran continued to display deficiencies in social and familial relations and mood during this period. As such, the Board will resolve all reasonable doubt in the Veteran's favor and find that he met the criteria for a 50 percent rating from the June 27, 2011 effective date of the grant of service connection to February 22, 2017. In reaching the above conclusions, the Board has considered the Veteran's statements and those of his representative regarding the severity of his PTSD 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, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Board has considered the Veteran's lay statements of record and has given them appropriate weight where they are consistent with the objective medical evidence of record. The Board does not dispute that the Veteran’s PTSD causes him distress and impairment in social, occupational, or other important areas of functioning. However, the Veteran is compensated for this impairment with the higher initial 50 percent disability rating being granted for this period. The Board must assign a rating based on a cumulative review of the medical and lay evidence of record, which, in this case, does not show a disability picture that more nearly approximates the next higher 70 percent rating criteria. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial 50 percent rating, but no higher, is warranted for the period from June 27, 2011 to February 22, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 2. Entitlement to an increased rating in excess of 70 percent for PTSD from September 23, 2019. The Veteran seeks a rating in excess of 70 percent for the period beginning on September 23, 2019. After careful review of the above medical and lay evidence of record, the Board finds that since the February 23, 2017 VA examination, the Veteran’s PTSD symptoms more nearly approximate the criteria for occupational and social impairment with deficiencies in most areas. Accordingly, a 70 percent, but no higher rating for PTSD is warranted, effective February 23, 2017. The Veteran underwent another VA examination on February 23, 2017. Upon examination, the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, significant hypervigilance, avoidance, isolation, anger, irritability and nightmares. The Veteran reported having a continued good relationship with his wife but being estranged from his adult son from his first marriage. He further reported eating out very infrequently and spending most of his time at home to avoid the anxiety he experiences when he leaves. He described his interest in astronomy and photography being helpful in coping with his PTSD. The examiner confirmed the Veteran’s PTSD diagnosis and characterized the Veteran’s PTSD symptoms as effecting occupational and social function due to reduced reliability and productivity. The examiner found the Veteran to be cooperative, well-groomed, and oriented, with an anxious but appropriate affect. He did not endorse a desire to hurt himself or others or suicidal tendencies. In an April 2018 buddy statement, his friend described the Veteran as suffering from insomnia, isolation, avoidance and fear of crowds and travel. At his May 2018 virtual hearing, the Veteran testified that he suffered from panic attacks once a week on average, broken speech, long and short term memory loss, forgetting tasks, bad judgment, conflicts with neighbors, poor mood, low motivation, outbursts of anger and irritability, no friends, estrangement from adult children and periods of sadness. He stated that he avoids outings but when he does go out, he typically needs to be accompanied by his wife, needs to be able to see the door, and doesn’t like anyone to be behind him because he fears being attacked. He denied having suicidal ideations. His wife testified that the Veteran has frequent nightmares and episodes of reexperiencing, often getting out of bed to “check the perimeter”. She further testified that the Veteran has had past physical confrontations with his ex-wife as well as physical confrontations with her. A September 2019 VA examination reflects that the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships. Additionally, he reported frequent reexperiencing, nightmares, social withdrawal, hypervigilance, muscle tension, feelings of detachment, exaggerated startle response, irritability and avoidance of reminders of combat. The Veteran stated that he enjoys a good relationship with his wife, though he felt guilt regarding his wife having to deal with his mental health issues. He noted that they stay home due to his avoidant behavior, with rare eating in restaurants and no longer attending church. He reported that his struggle with PTSD symptoms has worsened now that he has additional free time post-retirement. He reported continuing to pursue photography to pass the time. Upon examination, the VA examiner reported that the Veteran arrived on time, was cooperative during the evaluation, alert, oriented to person, place, time and situation, his social skills and eye contact were adequate, his affect was flat, and that his mood was anxious. The examiner did not observe any abnormal motor movements. His speech was intelligible and of normal rate, tone, and volume, with vocabulary befitting his education level. His thought processes were goal-directed and logical, with no evidence of hallucinations, delusions or paranoia. The examiner observed that the Veteran had a worn appearance but that he wore seasonally appropriate casual dress and displayed good personal hygiene. The examiner determined that the Veteran’s PTSD symptoms effect occupational and social function due to reduced reliability and productivity. After careful review of the above medical and lay evidence of record, the Board finds that as of the February 23, 2017 VA examination, the type and degree of symptoms demonstrated are of similar severity as those contemplated for a 70 percent disability rating. Bowling v. Principi, 15 Vet. App. 1, 11 (2001); Vazquez-Claudio v. Shinseki, 2012-7114, (Fed. Cir. Apr. 8, 2013) (70 percent rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency, or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). During this appeal period, the evidence of record shows that the Veteran’s PTSD has manifested primarily by depressed mood, anxiety, suspiciousness, irritability, chronic sleep impairment, mild memory loss, flattened affect, social withdrawal, hypervigilance, feelings of detachment, exaggerated startle response, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Board finds that such symptomatology is most consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that the next higher rating of 100 percent requires total occupational and social impairment. Although the Veteran experienced significant social impairment, the evidence of record does not indicate that the he has exhibited at any time during the relevant period symptoms of the type and degree required for a total, 100 percent rating. He did not exhibit gross impairment of thought processes, persistent delusions or hallucinations, persistent danger of hurting herself or others, intermittent ability to perform activities of daily living, or disorientation to time or place which would support a finding that the Veteran’s disability caused total social or occupational impairment. See Bowling v. Principi, 15 Vet. App. 1 (2001); Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran has consistently endorsed symptoms of the type and degree most consistent with occupational and social impairment with reduced reliability and productivity contemplated by the 70 percent rating criteria. The Board does not dispute that the Veteran's PTSD causes him significant distress and impairment in social, occupational, or other important areas of functioning. However, the Veteran is compensated for this impairment with a 70 percent disability rating. The Board must assign a rating based on a cumulative review of the medical and lay evidence of record, which, in this case, does not show a disability picture that more nearly approximates total occupational and social impairment. (Continued on the next page)   Accordingly, the Board finds that a 70 percent, but no higher rating, is warranted, for PTSD is warranted, effective February 23, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rosenthal, Ariana 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.