Citation Nr: 21006209 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 09-23 270A DATE: February 3, 2021 ORDER An initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to June 1, 2010 is denied. An initial staged rating of 70 percent for PTSD from June 1, 2010 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. Prior to June 1, 2010 the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity. 2. From June 1, 2010 the Veteran’s PTSD is productive of occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for service-connected PTSD prior to June 1, 2010 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). 2. The criteria for an initial staged rating of 70 percent for service-connected PTSD prior to June 1, 2010 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1969, with service in Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case was most previously before the Board in January 2020. In April 2015, the Veteran presented testimony in a travel board hearing before the undersigned in Jackson, Mississippi. A claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran field a claim for TDIU in 2019. Thus, the issue of TDIU is raised by the record, is part and parcel of the higher rating claim, and is properly before the Board. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran appeared before the undersigned Veterans Law Judge in April 2015 and delivered sworn testimony at a hearing in Jackson, Mississippi. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Laws and regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2020). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1 (2020). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). When reasonable doubt arises as to the degree of disability, such doubt is resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2020). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 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 is assigned. 38 C.F.R. § 4.7 (2020). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2020). A 50 percent rating for PTSD will be 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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 worklike setting); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. However, the 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.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. Psychiatric examinations frequently included assignment of a Global Assessment of Functioning (GAF) score. The Board notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). Facts and Analysis The issue before the Board is whether a rating in excess of 50 percent for PTSD is warranted at any time during the entire appeal period. At his April 2015 Board hearing the Veteran indicated that he had cold sweats at night and difficulty in sleeping and did not trust people. He sometimes had difficulty focusing and would get angry at people. He had a friend who would come by and he would sometimes talk to his son and daughter. He had not hunted or fished much recently, although he enjoyed those activities in the past. He attended church and taught a Sunday School class. He also attended a veterans group and felt good with the group. He stated that he had a job but did not describe it. The Veteran indicated that he had anxiety two or three times a week. Records indicate that the Veteran’s wife of 33 years passed away in 2003. Prior to June 1, 2010 A September 2007 VA PTSD examination noted that the Veteran was employed doing clerical work for a power company. He had been receiving treatment for PTSD for about 5 years. His medications included sertraline and zolpidem. He stated that his concentration was diminished and that he was able to maintain his job due to the fact that he was generally isolated. Even so, he asserted that there was stress associated with contacts with people at work. The Veteran indicated that he did not like to talk to anybody or see anybody. He lived by himself and attended church and would have conversations with members but the conversations were not meaningful. Examination revealed that the Veteran was agitated and his speech showed long delays. There was significant impairment in communication and the mood was markedly depressed. The Veteran’s affect was constricted with memory and concentration somewhat impaired. His insight was fair and judgement was functional. The diagnosis was chronic and severe PTSD with depression. A December 2008 VA psychiatry note indicated that the Veteran was having sleep problems and anxiety that was sometimes severe. He had spent Thanksgiving alone and was thinking of travelling to see his children at Christmas. A June 2009 VA psychiatric treatment note indicated that the Veteran’s mood was dysthymic with flat affect. Speech was of normal production and organized but concentration, memory, insight, and judgement were poor. Axis IV noted “occupational problems.” A December 2009 VA psychiatry note indicated that the Veteran kept to himself and avoided social functions. The Veteran had been prescribed medications for his nightmares and sleep problems. Examination revealed that the Veteran’s mood was dysthymic with flat affect. Concentration and memory were poor. A review of the evidence prior to June 1, 2010, does not reveal symptoms such as obsessional rituals which interfere with routine activities, depression affecting the ability to function independently, or spatial disorientation. Further, nothing approaching homicidal ideation, hallucinations, or delusionary thinking, have been a part of the Veteran’s PTSD symptomatology. Neglect of personal appearance and hygiene has not been shown or asserted. The findings from examination and treatment records do not reveal anything such as a speech or cognitive disorder. As for the Veteran’s social functioning, the Veteran had some relationship with his two adult children and has attended church during this time period. He also indicated that he had contact with a friend. Although difficulty in establishing and maintaining effective social relationships is shown, an inability of the Veteran to establish and maintain effective relationships is not supported by the record. As for occupational functioning, the Veteran has been employed prior to June 1, 2010, having worked at the same company for years. In sum, a review of the clinical findings and Veteran’s own statements prior to June 1, 2010 do not reveal symptoms which more closely approximate the criteria for a rating of 70 percent. As such, a rating in excess of 50 percent for PTSD prior to June 1, 2010, is not warranted. From June 1, 2010 From June 1, 2010, the Board finds that the Veteran’s PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. Most notably, the Veteran clearly had difficulty in adapting to stressful circumstances, particularly as it pertained to his employment. A July 2010 VA psychiatry note indicated that the Veteran had taken “an early retirement from the power company because he could no longer handle the stress.” The Veteran’s Social Security Administration (SSA) records confirm that the Veteran’s PTSD played a role in his inability to continue to be gainfully employed subsequent to June 1, 2010. As for social functioning, VA examiners have indicated that the Veteran’s PTSD was productive of a persistent negative emotional state (May 2014, May 2016, November 2017), a markedly diminished interest or participation in significant activities (March 2012, May 2014, May 2016, May 2018, September 2020), and feelings of detachment or estrangement from others (March 2012, May 2016, November 2017). These manifestations of social and occupational impairment have not been dissociated from the Veteran’s long-standing PTSD symptoms of anxiety and depression. Based on the foregoing, a rating of 70 percent for PTSD from June 1, 2010 is warranted. The Board finds that although the evidence shows severe impairment, it does not demonstrate total social and occupational impairment. No examiner, or even the Veteran himself, has asserted that he has total impairment. There has not been a pattern of grossly inappropriate behavior. Further, the Veteran has been shown to be fully oriented and a lack of hygiene has not been presented. Records such as a March 2018 VA record noted that the Veteran had visited his daughter, and at least some relationship with his two adult children has been maintained. Although not detailed, April 2017, December 2017 and March 2018 VA records noted that the Veteran had supportive relationships. In addition, the Veteran attended church throughout much of this appeal period, with a July 2017 VA record noting that the Veteran was attending or participating in Vacation Bible School. A July 2017 VA record indicated that was planning to fly to Colorado with a friend. In support of his claim, the Veteran has submitted a January 2019 letter from a long-time acquaintance, further evincing some social interaction. Although difficulty in establishing and maintaining effective social relationships is shown, the Veteran’s symptoms of PTSD are not of similar severity, frequency, and duration to show total social impairment. Based on the foregoing, a rating in excess of 70 percent for PTSD is not warranted. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit even more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record) REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Veteran now has met the schedular criteria for TDIU as a result of this Board decision. Additionally, the claim filed for TDIU provided scant information regarding the Veteran’s employment during the appeal period. Social Security Administration records noted the Veteran was unable to work, in part, due to the Veteran’s PTSD. Additional information is necessary to thoroughly adjudicate the issue on appeal. The matters are REMANDED for the following action: 1. Attempt to obtain additional information from the Veteran regarding his employment status during the appeal period. 2. Thereafter, and after considering whether any additional development is necessary, readjudicate the issue of entitlement to TDIU. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.