Citation Nr: 21009211 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 13-22 216 DATE: February 19, 2021 ORDER Entitlement to an initial disability rating of 100 percent rating for the service-connected posttraumatic stress disorder (PTSD) is GRANTED. FINDING OF FACT Throughout the appellate period, the Veteran’s service-connected PTSD has been demonstrative of total occupational and social impairment. CONCLUSION OF LAW The criteria are met for an initial disability rating of 100 percent for the Veteran’s service-connected PTSD disability. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R.§§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from April 1970 to March 1974. Entitlement to an initial disability rating of 70 percent, but no greater, for service-connected posttraumatic stress disorder (PTSD) is granted. In August 2011, correspondence from the Veteran was associated with the claims file. Therein, the Veteran initiated his entitlement claim for service-connection for PTSD. In December 2012, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ granted service connection for PTSD, assigning a 30 percent disability rating. In May 2013, the Veteran submitted a VA Form 21-4138. Therein, the Veteran disagreed with the initial, 30-percent rating the AOJ assigned for the PTSD disability. PTSD is rated under 38 C.F.R. § 4.130, DC 9411. The relevant criteria authorize a 50 percent rating for 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 effective work and social relationships. .38 C.F.R. § 4.130. 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 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); inability to establish and maintain effective relationships. Id. 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. 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 The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that “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.” “Although the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of (occupational and social) impairment.” Id. Prior to August 4, 2014, one factor in evaluating psychiatric disorders was the global assessment of functioning scale (GAF). The scale was meant to represent psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV)). Under DSM-IV a GAF score between 51 and 60 indicates 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 coworkers). A GAF score ranging between 61 and 70 is assigned when there are some mild symptoms and good functioning. A GAF of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). VA regulations were amended to remove references to the DSM-IV, and to replace them with references to the Fifth Edition of the same treatise (DSM-5). 79 Fed. Reg. 45,093-02, 45,094 (August 4, 2014). DSM-5 abandoned the global assessment of functioning score as a tool for evaluating the severity of psychiatric disorders. The Veteran filed the pending claim before the effective date of the regulatory change. Since the regulatory change implementing the DSM-5 criteria applies only to applications for benefits received by VA on or after August 4, 2014, the Board may consider any global assessment of functioning scores in the Veteran’s treatment records and examination reports. In October 2011,VA received a statement from the Veteran’s roommate. Therein, the roommate posited that, “(the Veteran) tells us feels like wall closing in on him when sleep. Wake feels claustrophobic and has to come outside even at night . . .. Does not want to talk about Vietnam. Every once in while will have to hold back himself from hitting, hurting people who wrongs him . . ..” In October 2011, VA received the treatment notations generated by the Veteran’s private physician. The provider reported that, “(n)ightmares sometimes occur with loud noises day or night being a trigger for his jumpiness. He feels his nerves are not as strong as he gets older.” Additionally, the provider reported that, “(h)e doesn’t do a lot of talking to his roommate nor anyone else . . .. Doesn’t know what triggers his symptoms. Flashbacks occur at night when sleeping wakes up pounding heart, sweating and then will get up go outside walk around, even if in middle of night . . .. (The Veteran) gives history of ‘easily’ getting set off for a fight easily aggravated and not afraid to defend himself. He has gotten into many altercations after he returned from Vietnam and that is why he avoids crowds. He can only work if left alone and his boss knows he doesn’t take instructions well.” In October 2011, VA received another report from the Veteran’s private physician. Relevant to this analysis, the provider reported that, “medical examinations confirm the traumatic events continually cause disruption of normal activity, sleep. His need for Ativan and Atarax medication which really does not relieve his symptoms. He likes to be alone, doesn't trust others, and has no close friendships, lack of continual long relationships, his avoidance of war news / events / loud noises and flashbacks into the past thinking he is in Vietnam. He has disruption of sleep nightly and avoids close spaces even gets up in the middle of night to go outside.” In October 2011, VA received an addendum from the Veteran’s private physician. Therein, the provider relayed that, “(h)e does have chronic occupational, social disturbances along with symptoms occurring more than 3 months longitudinally.” In November 2011, the Veteran underwent a VA examination that considered the severity of the service-connected PTSD disability. The VA examiner noted mild symptoms associated with the Veteran’s PTSD disability. The Veteran reported that, “(t)here have been some major social function changes since he developed his mental condition, for example prone to isolate.” The VA examiner relayed that, “(t)here are signs of suspiciousness with the following examples: he occasionally has difficulty trusting.” The VA examiner noted that there was no history of delusions or hallucinations, and obsessive-compulsive behavior was not demonstrated. The VA examiner noted that suicidal and homicidal ideation were not demonstrated. The VA examiner assigned a GAF score of 75. The VA examiner remarked that, “(c)urrently, he has difficulty establishing and maintaining effective work / school and social relationships because of post-traumatic stress disorder. . . . The claimant does not appear to pose any threat of danger or injury to self or others. The prognosis for the psychiatric condition is Excellent.” In April 2014, the Veteran underwent a PTSD screen at the Tulsa Outpatient Clinic. During a PTSD screen, the Veteran did not report nightmares or situation avoidance. The Veteran did not report a constant need to be on guard, watchful, or being easily started. The Veteran did not report feeling numb or detachment from others, activities or his surroundings. In December 2015, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). The Veteran testified that he had retired from a 30-year career as a machinist. The Veteran described an increase in PTSD symptom severity because he no longer had to concentrate on cutting metal at the workplace; he lost his “safe haven” when he retired. The Veteran described an increase in the severity of PTSD symptoms because he retired and had more free time. The Veteran testified that he endured nightmares once or twice a week. The Veteran testified that he endured flashbacks two or three times per month. In March 2016, the Veteran underwent a VA examination that considered the current severity of his service-connected PTSD. The VA examiner identified the following symptoms associated with the Veteran’s PTSD: depressed mood, anxiety, chronic sleep impairment, impaired abstract thinking, and nightmares two or three times per month. Under Criterion B, the Veteran demonstrated the following: recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); and, recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s). Under Criterion D, the Veteran demonstrated the following: markedly diminished interest or participation in significant activities; and, feelings of detachment or estrangement from others. Under Criterion E, the Veteran demonstrated the following: “(i)rritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; Exaggerated startle response; and, Sleep disturbance.” The VA examiner opined that, “(t)he PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.” Ultimately, the VA examiner identified occupational 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. In May 2019, the Veteran submitted an affidavit. Therein, the Veteran posited that, “I am continuously depressed every day and I have significant trouble sleeping. At least a few times a month my anxiety is so bad that I am not able to get to sleep. In addition, at least two or three times a month I suffer from nightmares regarding my time in service. . . . Because of these issues I regularly get only 3 to 5 hours of sleep. Between my lack of sleep and continuous anxiety, my PTSD makes me anxious and irritable, especially around other people. I do not like much social interaction, and I get upset over small perceived slights. I become confrontational in situations where it is not warranted, and during argument I often say things that I later regret. For these reasons, my only socialization occurs in the workplace.” The Veteran continued his affidavit with, “I always prefer working on my own due to my service-connected PTSD. I have been reprimanded for arguments at work a few times, but luckily my supervisors, many of whom are also Veterans, understand that my actions were usually the result of my PTSD. Although all my arguments were verbal, I did often have thoughts of hurting others, and sometimes fantasized about seriously harming or killing others.” The Veteran stated that, “(a)ll of my symptoms significantly worsened over the last few years of my full-time employment, and the combination of all my issues prompted me to cut down my hours in 2012. I felt that my work was suffering due to my inability to focus, and I simply could no longer stand to be around people every weekday. Since then I have worked part-time in the same position at FO-MAC and the hours that I work each week are at my own discretion.” The Veteran posited that, “my employment is the only thing that gets me out of the house . . .. I live alone and have a tendency to isolate myself from others . . .. Besides my co-workers, there is no one else I see on a regular basis. That being stated, I do not socialize with any of my colleagues outside the workplace, nor do I wish to.” The Veteran finished his affidavit with, “due to a combination of difficulty sleeping and anxiety I also find it difficult to follow instructions or stay focused on my work . . .. Although I was spoken to once or twice about, I never faced any reprimands. Once or twice a month I also suffer from flashbacks on the job . . .. Whenever one occurs, I have to take an extra break, usually around a half hour, just so I can be on my own and allow myself to calm down. I have suffered from suicidal ideation and homicidal ideation in the past, but these thoughts have lessened since I stopped working full-time. Despite this progress, I remain very paranoid when around others, and I am obsessively checking the locks on the windows and doors in my house throughout the day because I am worried that someone will break in.” In July 2019, the Board considered the claim listed on the title page. At that time, the Board found that, throughout the appellate period, the Veteran’s service-connected PTSD had been demonstrative of occupational and social impairment with reduced reliability and productivity. The Board concluded that the criteria were met for an initial 50 percent rating for the service-connected PTSD disability. In April 2020, the Court of Appeals for Veterans’ claims issued a Joint Motion for Partial Remand (JMPR). The Court relayed that, “the Board failed to discuss or assess Appellant’s statement any further for whether the suicidal ideation impacted his symptoms as a whole and warranted a higher rating.” The Court relayed that the Board did not discuss or assess whether the Veteran’s obsessive rituals interfere with routine activities, which is consistent with a 70 percent rating for PTSD. The Court relayed that the Board did not discuss or assess whether Appellant had impaired impulse control, in concert with other symptoms, which is consistent with a 70 percent rating for PTSD. Finally, the Court relayed that the Board did not properly address the evidence related to the Veteran’s panic and depression. The Court remanded the claim in order for the Board to supply an adequate statement of reasons and bases. In September 2020, the Veteran underwent a private telephone assessment that addressed the severity of the service-connected PTSD disability. At that time, the Veteran reported that he went days without showering or shaving. The Veteran reported that a friend cleaned his home. The Veteran reported that he laid in bed for two or three days at a time, and rarely left the safety of the home. The Veteran reported suicidal ideation at least twice each week. After review of the claims file, the doctor of psychology opined that the Veteran’s PTSD symptoms were consistently severe from August 2011 to present. The examiner noted that the Veteran’s hypervigilance is evident in both thought and action. After explaining points of disagreement with the November 2011 VA examination report, the examiner opined that, “it is my professional medical opinion that (the Veteran’s) PTSD is ongoing and persistent in its severity and impairs his social and occupational functioning.” After describing a thorough review of the medical evidence, the examiner opined that the Veteran’s PTSD symptoms have resulted in occupational and social impairment with deficiencies in most areas since August 2011. The examiner also relayed that, more than 3 days a month, the Veteran’s PTSD symptoms would result in the following: 1) an inability to function in the workplace; 2) a need to leave the workplace early because of PTSD symptoms; and 3) an inability to stay focused at least 7 hours of an 8-hour workday. Additionally, the examiner relayed that, more than once per month, the Veteran would respond in an angry manner to the normal pressures and constructive criticisms in the workplace. The Board notes that, early in the claim period, both the Veteran and his roommate described instances of impaired impulse control demonstrated by the Veteran. The March 2016 VA examiner identified PTSD symptoms that resulted in clinically significant distress or impairment in social, occupational, or other important areas of function. Importantly, the VA examiner identified irritable behavior and angry outbursts (with little or no provocation), which was typically expressed as verbal or physical aggression toward people or objects. Throughout the claim period, the record reflects that the Veteran is unable to establish and maintain effective relationships. In his May 2019 affidavit, the Veteran relayed that he obsessively checked the locks on the windows and doors in his home. In the September 2020 psychiatric assessment, the Veteran reported an intermittent inability to maintain minimal personal hygiene. The Veteran also reported grossly inappropriate angry outbursts in the workplace and fantasizing about harming co-workers. The Veteran reported suicidal ideation twice per week. The Board notes that the Veteran did not demonstrate impairment in thought or communication, persistent delusions or hallucinations, disorientation to time or place, or severe memory loss. However, the Board concludes that the overall disability picture is consistent with a finding that the Veteran demonstrated total occupational and social impairment during the claim period. Consequently, after review of the Court’s JMPR, the appellate record, and the thorough and well-reasoned September 2020 psychiatric assessment, the Board finds that an initial 100 percent rating is warranted for the service-connected PTSD disability. Ultimately, the preponderance of the evidence favors the Veteran’s claim for a 100 percent rating for the service-connected PTSD disability. Accordingly, this increased rating must be granted. The Board notes that the Veteran and his attorney have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 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). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.