Citation Nr: 21008094 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-08 829A DATE: February 11, 2021 ORDER Entitlement to an increased evaluation in excess of 70 percent for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s acquired psychiatric disorder to include PTSD has not resulted in total occupational and social impairment due to 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; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for acquired psychiatric disorder to include PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army Reserve from June 1988 to December 1988, October 1990 to April 1991 and July 2007 to June 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018 and October 2020, the Board remanded this issue for additional development. Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his PTSD. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matters on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran has a current 70 percent disability rating for his service-connected anxiety disorder also claimed as PTSD under Diagnostic Code 9413. The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a 10 percent evaluation is warranted if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A rating of 30 percent is assigned when the Veteran exhibits occupational and social impairment with occasional decreases 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires 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 rating requires 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 affected 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 inability to establish and maintain effective relationships. A 100 percent rating is assigned 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 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. Id. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase 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. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2020). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the “psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). According to the DSM-IV, GAF scores ranging between 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 generally functioning pretty well, and has some meaningful interpersonal relationships. GAF 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]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech is at times illogical, obscure, or irrelevant] or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood [e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. VA has changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). As the Veteran’s case was certified to the Board after August 4, 2014, DSM-5 applies, and GAF scores are no longer used in evaluation of psychiatric disorder. Id. However, the examiner’s discussion of symptoms associated with any assigned score would still be useful in evaluation of psychiatric disabilities. Factual Background and Analysis The Veteran filed a claim for an increased rating that was received by VA in October 2013. The Veteran underwent a VA examination in December 2012. The examiner noted a diagnosis of anxiety disorder not otherwise specified (NOS). The examiner summarized the Veteran’s level of occupational and social impairment with regards to all mental diagnoses as occupational and social impairment with reduced reliability and productivity. It was noted that the Veteran currently lived with his wife and their 2-year old son and that his wife was very supportive. No interpersonal difficulties were reported or documented. He was currently unemployed as he was suspended from his job as a mechanic in July 2012 due to having difficulties performing his job. On the examination, there was increased anxiety, isolation, sleeping difficulties, unspecified nightmares, irritability and difficulty concentrating. The examiner noted that the Veteran was in contact with reality and that there was no evidence of psychomotor retardation or agitation. There was no evidence of delusion or hallucinations and he denied suicidal or homicidal ideation. He was fully oriented. He had some recent memory difficulties but his cognitive functions were preserved. His symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss and disturbances of mood and motivation. He was capable of handling his financial affairs. In an April 2013 opinion, a VA examiner noted that the Veteran had continuous symptoms of both anxiety and depression which were easily exacerbated by daily life events and his own poor self-image. He had poor concentration and retention and his inability to establish adequate control of his symptoms of anxiety, restlessness, decreased memory and concentration have affected his occupational activities. The examiner found that given this, the Veteran would only be able to function in a very protected occupational environment with minimal stress or job demands involved. As a result, the examiner found that the Veteran presented with severe functional limitations in his ability to obtain and maintain a gainful occupation. A February 2020 VA psychiatric treatment report noted that the Veteran presented with nervousness, anxiety and poor sleep. He had no suicidal or homicidal ideation, no hopelessness or helplessness and no hallucinations. He had daily worrying but did not have manic symptoms. The Veteran reported that he heard his name being called out at night. On examination he was alert and attentive and oriented to person, place, time and situation. His language was intact and his speech was normal. His mood was anxious and his affect was restricted. He had no hallucinations or illusions and his thought processes were normal. His insight and judgment were good and his memory was intact. The diagnosis was chronic PTSD, generalized anxiety disorder and major depressive disorder, recurrent episode with psychotic features. The examiner noted that the psychotic features were likely due to the Veteran discontinuing medication and the Veteran recognized that he should restart this medication. Per the June 2018 Board remand instructions, the Veteran underwent a VA examination in August 2020. The examiner diagnosed the Veteran with PTSD and generalized anxiety disorder with panic attacks. The examiner summarized the Veteran’s level of occupational and social impairment with regards to all mental diagnoses as occupational and social impairment with deficiencies in most areas such as work, school, family, relations, judgment, thinking and/or mood. The Veteran currently lived with his wife and their 9-year-old son. He described his marital relationship as somewhat unstable with frequent arguments but there has been relationship stability for the past 10 months. The Veteran reported having 3 to 4 jobs after his service including a position as a production line mechanic. He however committed many mistakes due to his mental state that resulted in damaged batches during this job. The Veteran indicated that during any drill he would get so anxious that he left and did not come back to work. He had various absences and was eventually fired. He received Social Security Administration (SSA) disability since 2019 due to his mental condition. During the examination, the Veteran’s current symptoms were changes in mood, recurrent distressing memories of traumatic events, insomnia, nightmares, anxious rumination, intrusive memories, flashbacks, concentration difficulties, panic attacks approximately twice a month, fearful of unknown places and hypervigilance. The diagnosis was major depressive disorder, recurrent episode with psychotic features, generalized anxiety disorder and PTSD. The examiner noted that the Veteran presented with moderate distress. He had anxiety symptoms and PTSD symptoms which were longstanding and chronic. He reported episodic psychotic symptoms but denied impulsive behavior, aggressive behavior, manic symptoms, suicidal ideation or plan and homicidal ideation or plan. He was oriented and the examiner noted that the Veteran’s anxiety and depression were also due to not using his medication. The examiner noted that the Veteran’s symptoms included anxiety, panic attacks that occurred more than once a week, near continuous panic or depression affecting his ability to function independently, chronic sleep impairment, mild memory loss, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work like setting. On examination, the Veteran was groomed and his appearance was good. He was alert and oriented to person, place, time and circumstance. He however had significant difficulty in recalling his age. His attention and concentration were adaptive during the examination. He was significantly nervous and fidgety. His memory impressed to be significantly diminished and receptive language adaptive. His thought process was logical, coherent and goal oriented although not too elaborate. He denied any suicidal intent or ideation or plan and did not have any sensory perceptual disturbances. His mood was anxious and congruent with affect. He displayed significant emotional dysregulation that could suggest underlying neurological pathology. His insight was diminished as he had significant difficulty identifying and reporting his symptoms. His judgment was intact. The Veteran also reported that he heard someone calling his name while he was asleep and woke up which were more associated with his sleep-wake cycles and can be associated with his nightmares which are secondary to his PTSD. He was capable of managing his own affairs. The examiner noted that the Veteran had significant difficulties reporting and identifying his symptoms. After reviewing evidence of record, the Board finds that the assignment of a disability rating greater than 70 percent for the Veteran’s service-connected acquired psychiatric disorder to include PTSD is not warranted. The Board notes that at no point did any VA examiner or treating physician find that the Veteran’s acquired psychiatric disorder to include PTSD caused total occupational and social impairment, as is required for the assignment of a 100 percent rating. In not granting a 100 percent schedular rating for the Veteran’s service-connected acquired psychiatric disorder to include PTSD, the Board is not minimizing the severity of the Veteran’s symptoms. The Board notes that the evidence demonstrates that the Veteran experienced significant occupational impairment as a result of his acquired psychiatric disorder to include PTSD which has resulted in the grant of entitlement to a total disability rating based on individual unemployability (TDIU). Notably, the April 2013 VA examiner found that the Veteran presented with severe functional limitations in his ability to obtain and maintain a gainful occupation. However, as noted above, the maximum rating of 100 percent requires total occupational and social impairment. Notably, the August 2020 VA examiner indicated that the Veteran currently lived with his wife and their 9-year-old son. While the Veteran described his marital relationship as somewhat unstable with frequent arguments, he had also noted that there had been relationship stability for the past 10 months. Additionally, the VA treatment records and VA examinations show no gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of own relatives, own occupation, or own name. The Board also notes that the August 2020 VA examiner indicated that the Veteran’s symptoms included anxiety, panic attacks that occurred more than once a week, near continuous panic or depression affecting his ability to function independently, chronic sleep impairment, mild memory loss, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work like setting. However, the examiner also noted that the Veteran’s attention was intact and he was oriented. The Veteran also did not have inappropriate behavior and did not have obsessive or ritualistic behavior. The Board also notes that the August 2020 VA examiner specifically described the Veteran’s symptoms as occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. This description corresponds squarely with the schedular requirements for the assignment of a 70 percent disability rating for PTSD under the General Rating Formula. Accordingly, in this case, the overall evidence of record does not reflect that the Veteran’s symptomatology is so severe as to merit a 100 percent disability rating. Thus, for all the foregoing reasons, the Board finds that a rating in excess of 70 percent for an acquired psychiatric disorder to include PTSD is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.