Citation Nr: 21005595 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 10-13 062 DATE: February 2, 2021 ORDER Entitlement to a 70 percent initial evaluation, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted, subject to the applicable regulations concerning the payment of monetary benefits. FINDING OF FACT Affording the Veteran the benefit of the doubt, the most probative evidence reflects that the Veteran's service-connected PTSD is manifested by severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas, such as social relations, work, and mood, without total social impairment. CONCLUSION OF LAW Throughout the appeal period, the criteria for a 70 percent initial evaluation, for service-connected PTSD, but not in excess thereof, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130 and Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1945 to March 1946 and from March 1951 to June 1953. He is in receipt of the Purple Heart Medal. This matter comes to the Board of Veterans' Appeals (Board) from a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the initial evaluation assigned for his service-connected PTSD in this decision, and the present appeal ensued. The Veteran’s appealed issue was previously before the Board in May 2019, when it was concluded that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran. After the AOJ substantially completed the Board’s May 2019 remand directives, his appeal was returned to the Board, who denied such in a September 2019 decision. The Veteran appealed the Board’s September 2019 denial of this appealed issue to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in November 2016, the Veteran’s attorney and a representative of VA’s Office of General Counsel filed a Joint Motion for Remand in July 2020. In an August 2020 Order, the Court vacated the Board’s September 2019 decision and remanded the matter for readjudication in light of the parties’ agreements in the July 2020 Joint Motion. Representation At the time of the Board’s September 2019 decision, the Veteran was represented in all VA-related matters by the Disabled American Veterans (DAV). On July 28, 2020, VA received VA Form 21-22a which was signed by the Veteran on July 22, 2020, and by the attorney on July 28, 2020. This filing effectively revoked DAV as the Veteran’s representative in favor of the private attorney named on the form. Thereafter, the Joint Motion alluded to above was signed on July 31, 2020, by an attorney representing the law firm of the signer of the July 2020 form. The Veteran’s case was returned to the Board by the Court on August 4, 2020. On August 31, 2020, the private attorney representing the Veteran filed a motion with the Board to withdraw as the Veteran’s counsel, alleging that the Veteran had “terminated” the law firm from representation; however, the file is devoid of any congruent statement from the Veteran. One week later, the private attorney contacted the AOJ to report that neither he nor his firm represented the Veteran in VA-related matter, and that “any and all future fee entitlement” was waived. Despite the above, on September 16, 2020, VA’s Office of General Counsel authorized the AOJ to make payment to the private attorney’s law firm under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) stemming from the July 2020 Joint Motion. It is unclear whether the AOJ acted on this authorization. In October 2020, the Board granted the private attorney’s motion to withdraw from representing the Veteran in VA-related matters. 38 C.F.R. § 20.6. The Veteran has not submitted any statement to VA regarding these matters, and thus, the Board will readjudicate the appealed issue with the Veteran proceeding pro se. 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected PTSD Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his PTSD warrants an increased rating, which is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent evaluation 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 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; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration that result in the levels of occupational and social impairment provided. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM 5, and examinations conducted pursuant to the DSM 5 do not include GAF scores. As the Veteran’s claim for benefits was certified after August 2014, the DSM 5 criteria will be utilized in the analysis set forth below. Analysis In December 2016, the AOJ granted entitlement to service connection for PTSD and assigned an initial 50 percent evaluation from August 25, 2016, the date that the Veteran filed his claim. The Veteran is appealing the rating aspect of that decision. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). The evidence of record concerning the severity and frequency of the symptoms associated with the Veteran’s service-connected PTSD and the functional impairment resulting from such emanates from his VA treatment records and the reports of two VA psychiatric examinations. In an August 2016 VA medical record, the Veteran indicates “decreased interest in pleasurable activities,” a tendency towards isolation, “trauma related increased arousal,” and “intermittent anger and irritability, which has caused some mild strain within his marriage.” He experiences good relationships with his wife and children. Although anxious, he displayed normal speech, was cooperative, did not report or display any suicidal ideation or plans, did not display homicidal ideations, and did not display delusions or hallucinations. The Veteran was “judged NOT to be at significant risk for self-harm” (emphasis in original). In addition, a separate August 2016 VA “suicide screen” indicates that although the Veteran is “feeling hopeless about the present or future,” he has “had no thoughts about taking [his] life” and has never “had a suicide attempt.” A September 2016 VA medical record describes the Veteran’s psychological symptoms as follows: “No anxiety, no depression, No suicidal ideations, No homicidal ideation.” In September 2016 VA “suicide screens,” the Veteran states that he is not “feeling hopeless about the present or future,” has not “had thoughts about taking [his] life,” and has never “had a suicide attempt.” A separate September 2016 VA medical record indicates no “depression, considering suicide, [or] memory loss.” September 2016 VA group treatment records describe the Veteran as alert and engaged. His “[t]houghts were rational and goal directed,” he “[d]id not verbalize suicidal or homicidal thoughts,” and his “[j]udgment and insight appeared intact.” An October 2016 VA medical record indicates that the Veteran is anxious but “alert and oriented (x4)” with normal speech and thoughts. “No suicidal or homicidal ideations, intentions, and plants were verbalized during the session.” The Veteran “reported positive effects from [his PTSD] group experience, noting an increase in understanding of the signs and symptoms of trauma.” He “continues to experience problems with intrusive memories, nightmares, short term memory recall and hyperarousal, which appear to be related to his trauma history.” Also, in that record, the Veteran “reported that at this time, he will abstain from psychotherapy services, but agreed to contact the undersigned or his MHTC should he desire to participate in therapy services at a future date.” An October 2016 VA mental disorders examination (received 11/2/16) contains a specific finding of “[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” The Veteran is “always tense,” “cannot be around a lot of people,” experiences panic attacks lasting 30 minutes every two days, and “feels down most of the time.” The Veteran denied suicidal ideation and homicidal behavior. He has good relationships with his wife, children, and remaining sister and brother. The Veteran further displays “[p]ersistent negative emotional state,” “[m]arkedly diminished interest or participation in signifcant activities,” “[e]xaggerated startle response,” and “[p]roblems with concentration.” The Veteran’s symptoms result in “clinically significant distress or impairment in social, occupational, or other important areas of functioning.” He further experiences “[d]isturbances of motivation and mood,” “[d]ifficulty in establishing and maintaining effective work and social relationships, “and [d]iffculty adapting to stressful circumstances, including work or a work like setting.” He interacted intelligently and appropriately with the examiner and was “[o]riented to person, place, time and purpose of evaluation.” There was additionally “[n]o evidence of psychosis, thought disorder, suicidal or homicidal behaviors.” In May 2017 and June 2017 “suicide screens,” the Veteran indicates that he is not “feeling hopeless about the present or future,” has not “had thoughts about taking [his] life,” and has never “had a suicide attempt.” In a June 2017 VA medical record, the Veteran describes “mood lability and mild irritability,” “avoidance of certain stimuli,” and “difficulty in enjoying many activities.” At the same time, the “Veteran was interactive during the session and able to verbalize feelings.” The Veteran also displayed normal speech and thought content. There were no delusions or hallucinations. In an accompanying “suicide screen,” the Veteran again indicates that he is not “feeling hopeless about the present or future,” has not “had thoughts about taking [his] life,” and has never “had a suicide attempt.” A September 2017 VA medical record indicates that the Veteran’s “mood is generally ok although he notes continued irritability and mood reactivity.” There is “[n]o suicidal ideation, intent, [or] planning.” The examiner describes the Veteran as “[i]mmaculately dressed and groomed” with normal speech and thoughts. There are “[n]o memory problems noted” and “[n]o active delusions or hallucinations noted.” In an October 2017 VA medical record, the Veteran indicates that he has not had thoughts of taking his own life in the past two weeks. A separate October 2017 VA medical record indicates “[n]o suicidal ideations” and “[n]o homicidal ideation.” According to a December 2017 VA medical record, the Veteran “remains hypervigilant” and “continues to experience low frustration tolerance and irritability . . . .” He is “[s]harply dressed,” “interactive during the session,” “able to verbalize feelings,” displays “[g]ood use of humor during session,” displays normal speech, displays logical thoughts, and displays good judgment. There are “[n]o active delusions or hallucinations noted” and no “homicidal ideations/plans.” In an accompanying “suicide screen,” the Veteran indicates that he is not “feeling hopeless about the present or future,” has not “had thoughts about taking [his] life,” and has never “had a suicide attempt.” In a March 2018 VA medical record, the “Veteran notes that generally he is feeling good” with “good ability to enjoy activities.” The Veteran “remains quite active and engaged” and “notes good communication with his wife and good ability to engage in activities that are interesting to him.” He is “[s]harply dressed,” “interactive during the session,” and “able to verbalize feelings.” He displays normal speech, displays logical thoughts, and displays good judgment. There are “[n]o active delusions or hallucinations noted” and no “homicidal ideations/plans.” In an accompanying “suicide screen,” the Veteran indices that he is not “feeling hopeless about the present or future,” has not “had thoughts about taking [his] life,” and has never “had a suicide attempt.” An April 2018 VA medical record indicates “[n]o suicidal ideations” and “[n]o homicidal ideation.” Consistent with this, in a separate April 2018 VA medical record the Veteran indicates that he has not had thoughts of taking his own life in the past two weeks. In a June 2018 VA medical record, the Veteran indicates bad nerves, “intrusive thoughts about his service,” and “low frustration tolerance and irritability causing some conflict in his relationship [sic].” At the same time, he is “[s]harply dressed” with “[g]ood use of humor in session,” normal speech, good insight, good judgment, and logical thoughts. There are “[n]or active delusions or hallucinations noted.” The “Veteran denies suicidal or homicidal ideations/plans.” A July 2019 VA mental disorders examination contains a specific finding of “[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” The Veteran “is not currently receiving mental health treatment and has not received treatment since 2016.” The Veteran displays a “[p]ersistent negative emotional state,”[h]yper-vigilance,” “[e]xaggerated startle response,” and “[m]ild memory loss, such as forgetting names, directions or recent events.” According to the examiner, the Veteran’s “thought processes were logical and he was oriented in all spheres.” Further, the Veteran “denied suicidal ideations or intentions.” The Veteran is capable of managing his own financial affairs. The examiner further states the following: “There was no evidence of total occupational and total social impairment. Evidence supports that Veteran is able to engage with family members and friends and participate in some level of exercise and social activities.” The record is devoid of evidence that the Veteran has received mental health treatment from VA or any other source since July 2019. In the September 2019 decision, the Board denied the Veteran’s appeal seeking an initial evaluation in excess of 50 percent for his service-connected PTSD based on the above evidence. In the July 2020 Joint Motion, the parties agreed that that the Board’s decision had failed to consider favorable evidence of the Veteran’s strained relationships, which may support a partial allowance of the benefits sought. Specifically, the parties noted an August 2016 VA treatment record reflecting the Veteran’s reports that he isolates himself from others, typically stays at home, and cannot stand to be around a lot of people making a lot of noise and an October 2018VA treatment record reflecting the Veteran’s difficulties with interpersonal relationships and his ability to trust others was impaired. In view of all of the evidence of record and the parties’ agreements in the July 2020 Court-endorsed Joint Motion, the Board concludes that, after conferring the benefit of the doubt in the Veteran’s favor, his PTSD symptoms have resulted in functional impairment most closely approximating the criteria for a 70 percent initial evaluation throughout the entirety of the appeal period. Accordingly, to this extent, the benefit sought on appeal is granted. However, while the Veteran's PTSD does result in significant disability, the Board finds that the criteria for a 100 percent schedular evaluation are not met. For instance, symptoms typically associated with a 100 percent evaluation for PTSD are not demonstrated. For example, there was no evidence of gross impairment in thought processes, persistent hallucinations or delusions, or a persistent danger of hurting himself or others. Further, as stated above, the criteria for a 100 percent schedular evaluation are PTSD symptoms resulting in total occupational and social impairment. It is unclear when the Veteran was last employed, he reported that he retired from his last position as a janitor at an elementary school in the 1980s at age 62; however, the Board observes that the Veteran would not have attained 62 years of age until 1991. The record does not reflect why the Veteran chose to retire from this profession, but he has not specifically contended that his service-connected PTSD impacted this decision or his ability to perform the job. Further, the record reflects that the Veteran remains married to his wife of 70 years, they “go out to eat a lot,” and he has a “fine” relationship with his six surviving children, one of whom lives with the Veteran and his wife. Additionally, the Veteran reported three close friends outside the family setting. While the Veteran’s service-connected PTSD symptoms may cause him to struggle with periods of agitation and isolation, there is uncontroverted evidence that the Veteran spends ample time with his wife, family, and friends, to include in social settings and public places. To the extent that undertaking social situations and relationships may be difficult due to the Veteran’s PTSD symptoms, that functional impairment is accounted for in the 70 percent evaluation which the Board has found to be warranted. In sum, because the Veteran’s PTSD symptoms do not result in total social impairment, assignment of a 100 percent initial evaluation is not warranted. Based on the foregoing, and resolving all doubt in the Veteran’s favor, the Board concludes that the Veteran’s PTSD symptomatology most nearly approximates the criteria for a 70 percent evaluation, but no higher, for the entirety of the appeal period. 38 U.S.C. § 5107. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.