Citation Nr: 21010829 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-36 914 DATE: February 25, 2021 ORDER Entitlement to an initial 50 percent rating, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted prior to October 16, 2019. From October 16, 2019, no higher than a 70 percent rating for service-connected PTSD is granted. FINDINGS OF FACT 1. From April 14, 2010 to October 16, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with reduced reliability and productivity. 2. From October 16, 2019, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximated occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. From April 14, 2010 to October 16, 2019, the criteria for an initial 50 percent rating, but no higher, for service-connected PTSD, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.130, DC 9411. 2. From October 16, 2019, the criteria for a 70 percent rating, but no higher, for service-connected PTSD, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD) In the November 2013 rating decision on appeal, the agency of original jurisdiction (AOJ) granted service connection for PTSD and assigned an initial 30 percent rating, effective April 14, 2010. The Veteran perfected an appeal as to the rating assigned to his PTSD disability and, during the pendency of the claim, the AOJ awarded an increased, 70 percent rating, effective November 18, 2019. See July 2020 rating decision. The Veteran was notified of the AOJ’s determination, but he did not withdraw his appeal. Therefore, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the Board will consider whether the Veteran’s PTSD warrants an initial rating in excess of 30 percent prior to November 18, 2019 and a rating in excess of 70 percent thereafter. The Veteran has asserted that his PTSD is worse than as noted in the VA examinations of record, as they are not reflective of his disability on a daily basis or when he is in distress. See December 2013 notice of disagreement and representative statements dated October 2015 and May 2019. The Board will consider the VA examinations of record, in addition to the VA private treatment records and any lay evidence of record. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. The preponderance of the evidence shows the Veteran has consistently endorsed having intrusive thoughts, hypervigilance, exaggerated startle response, and chronic sleep impairment with insomnia and nightmares. He has also consistently reported being irritable with angry outbursts and feeling detached from others. See e.g., March 2010 psychological evaluation; August 2010 VA treatment record and examination report; September 2015 VA examination report; VA treatment records dated September 2016 and September 2017. The evidence dated in 2010 provides a varying description of the Veteran’s disability picture, particularly with respect to his mood, affect, irritability, and thinking. For example, during the March 2010 psychological evaluation, the Veteran reported that his mood was okay most every day but, during the examination, he was noted to have a markedly intense presentation with restricted range of affect and he also reported having significant fatigue and loss of energy. See March 2010 psychological evaluation. During the August 2010 VA examination, his affect was described as appropriate, although the examiner noted that his mood was anxious and irritable and that he was restless with anxiety. See August 2010 VA examination. The March 2010 evaluation and August 2010 treatment record document the Veteran’s report of having extreme trouble with irritability and angry outbursts, including marked problems with road rage. As a result, the March 2010 examiner noted that the Veteran’s impulse control was below normal limits. During the March 2010 evaluation, the Veteran also endorsed having homicidal ideation toward people that cross him, recurrent thoughts of death, and passive suicidal ideation. However, the August 2010 VA examiner stated that the Veteran had good impulse control, as he noted the Veteran experienced irritability in his marriage and with people on occasion with no episodes of violence. The VA examiner also noted the Veteran denied having any suicidal or homicidal thoughts at that time. See March 2010 psychological evaluation; August 2010 VA treatment record and examination report. Similarly, in March 2010, the Veteran demonstrated some circumstantiality in speech and thought and the examiner noted that his judgement, insight, and concentration were below normal limits, given the Veteran’s report of having problems with concentration and making decisions. However, in August 2010, his speech and thought process were normal and the VA examiner noted that his attention, judgement, and insight were normal, although he also reported having quite a bit of difficulty concentrating. Nevertheless, the VA examiner stated that the Veteran’s depression symptoms affected his motivation, insight and sense of control over his anxiety. As noted, the Veteran reported having feelings of detachment and estrangement from others, including in March 2010. In August 2010, he reported being a loner since childhood and reported being estranged from both of his kids, but he also reported having friends, contacts, and interactions with hobbies, such as a band and going to the gym. He also reported that, while he had ups and downs with his wife, they got along well for the most part. In 2015, the Veteran’s affect was flat during examination and he reported experiencing suspiciousness, constant frustration, and an inability to experience happiness. He also endorsed avoidant behaviors, such as avoiding crowds or groups talking about Vietnam. He reported having no close friends but, instead, reported having acquaintances, such as his neighbors. He stated that other people frustrate him sometimes, but he reported playing basketball regularly and playing piano with a group of people. He also reported having a generally good relationship with his wife but noted that he did not have a relationship with his two sons. Accordingly, the September 2015 VA examiner noted the Veteran’s symptoms included difficulty establishing and maintaining effective work and social relationships. See September 2015 VA examination. The evidence shows the Veteran began receiving mental health treatment in 2016, at which time his wife reported that he was very anxious and episodically irritable. The Veteran reported having stressors related to his finances and work and, as a result, he was occasionally noted as restless during treatment and his mood was variously described as irritable, anxious, depressed, and sad. His affect was always congruent to his mood. The Veteran was always alert and oriented, and his speech and cognition/thought process were normal. However, in September 2016, he endorsed experiencing apparitions. He stated that they did not occur very often and explained that there is somebody out there, as evidenced by certain smells or perfumes. At that time, his judgement and concentration were noted to be fair. Otherwise, the records reflect that the Veteran’s thought content was normal and coherent, and his judgment and insight were described as intact. VA treatment records dated from 2017 to 2019 reflect that the Veteran continued to report having stressors and frustration with his finances, working in the dental industry, and with his wife’s health. In this regard, the Veteran reported that the only person he trusted was his wife, as she was the only one who knows him well. See e.g., November 2018 treatment record. As a result, he was occasionally described as restless, agitated, preoccupied, worried, or angry. His thoughts were also occasionally described as circumstantial with ruminations, as he reported having a lot of issues in his life due to family and work. See e.g., November 2017 and December 2018 VA treatment records. The Veteran tried group therapy, but he became outwardly angry and determined the group was not for him, as he reported feeling attacked and abandoned. The Veteran later reported that he was okay being around others in general but not veterans. See e.g., VA treatment records dated September 2017 and May 2019. In this regard, the evidence shows that he joined a soul band in 2017, which he enjoyed immensely and reported helped him mentally. He stated that he enjoyed the bonds he made with the band members. See e.g., VA treatment records dated March 2017, June 2018, and April 2019. The evidence reflects that, in October 2019 and thereafter, the Veteran reported having increased irritability and anxiety, with depression and intrusive thoughts. See VA treatment records dated October, November, and December 2019. During the November 2019 VA examination, his wife reported that his anxiety, grief, and emotional distancing had worsened significantly and that he was also experiencing more frequent nightmares. The Veteran endorsed having a lot of triggers that changed his disposition and reported moments where he was distant and not there. He also reported having little patience and flying off the handle. He reported that, since the last examination, he was unable to work only sporadically as he was too stressed out and not seeing eye to eye with the dentist. On objective examination, the Veteran appeared anxious and the VA examiner noted that his symptoms included suspiciousness, panic attacks weekly or less often, mild memory loss, circumstantial, circumlocutory, or stereotyped speech, difficulty adapting to stressful circumstances, some passive suicidal ideation more recently, and obsessional rituals that interfere with routine activities. The examiner also listed impaired judgement as a symptom and specifically stated the Veteran’s judgement and insight were fair, as evidenced by his attending treatment voluntarily. See November 2019 VA examination report. VA treatment records dated in 2020 show the Veteran continued to expereinced increased depression and anxiety mainly due to isolation from COVID. In this regard, the Veteran stated that band practices, which was his only joy, had been cancelled. See VA treatment records dated February and June 2020. Based on the foregoing, and after resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran’s symptoms more nearly approximated the symptoms and level of impairment required for an initial 50 percent rating but no higher prior to October 16, 2019, and no higher than a 70 percent rating on and after that date. As shown above, the evidence dated prior to October 2019 shows that many of the Veteran’s symptoms are associated with a 30 percent rating, including depressed mood, anxiety, suspiciousness, and chronic sleep impairment. This evidence also shows the Veteran occasionally manifested symptoms associated with the 50 percent rating, including flattened or restricted range of affect, circumstantiality in thought and speech and impaired judgement. The evidence dated prior to October 2019 shows the Veteran expereinced disturbances in motivation and mood with lack of energy and mood variations from anxious, restless, and sad due to the stressors in his life. Impaired judgment was also noted. The evidence reflects that, despite his symptoms, the Veteran generally functioned satisfactorily with routine behavior, self-care, and normal conversation, but he consistently demonstrated difficulty in establishing and maintaining effective interpersonal relationships, including with his kids, other veterans, and dentists with whom he worked. The Board notes that the evidence dated prior to October 2019 shows the Veteran endorsed symptoms that are not listed with a specific rating, such as startle response and hypervigilance; however, the Board finds that these symptoms are similar to anxiety, suspiciousness, and panic attacks as contemplated by the 30 percent rating. In this regard, the Veteran reported having panic symptoms with external triggers. See March 2010 psychiatric evaluation. In the same way, the Board notes that while intrusive thoughts are not listed with a specific rating, they appear to have resulted in disturbances in motivation and mood, which is contemplated by the 50 percent rating. The Board acknowledges that, prior to October 2019, the Veteran also expressed passive suicidal ideation, which is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s reported suicidal ideation did not rise to the level of functional impairment contemplated by the 70 percent or 100 percent disability ratings prior to October 2019. As noted, the Veteran reported experiencing no more than passive suicidal ideation on two occasions from 2010 to 2019, e.g., in March 2010 and September 2016, and otherwise denied suicidal ideation, including during numerous outpatient treatments with his social worker and during VA examinations. As addressed in greater detail below, the suicidal ideations did not result in the level of functional impairment contemplated by a 70 percent rating during this time period. The Board also notes the Veteran endorsed having intermittent impulsive homicidal ideation in March 2010 and being aware of apparitions in September 2016, both of which are similar to persistent danger of hurting others and persistent delusions or hallucinations that are contemplated by the 100 percent criteria. However, as noted, the Veteran reported that these symptoms were intermittent and did not appear very often, and the evidence shows that he otherwise consistently denied having any homicidal ideations or perceptual abnormalities, such as hallucinations or delusions. Therefore, the Board finds that the severity, frequency, and duration of the Veteran’s reported homicidal ideation and hallucinations have not been persistent or result in the level of functional impairment contemplated by the 100 percent rating. The Board also notes that, while the March 2010 examiner stated that the Veteran’s impulse control was below normal, the preponderance of the evidence reflects that his irritability and anger were episodic in nature and have not resulted in any violence or assertiveness during the appeal period. Therefore, the Veteran’s irritability and anger are not manifested in severity, frequency, or duration to rise to the level of impaired impulse control as contemplated by the impairment noted for the 70 percent rating. Nevertheless, the Board finds the Veteran’s irritability and anger, as well as his passive suicidal ideation and occasional hallucinations and homicidal thoughts contributed to his overall impairment in social, work, and interpersonal functioning prior to October 2019 which, as noted, was manifested by occasionally reduced reliability and productivity. After resolving reasonable doubt in favor of the Veteran, the Board finds the evidence reflects that the severity and frequency of the Veteran’s symptoms more closely approximated the symptoms and overall level of impairment contemplated by the 50 percent rating from April 2010 to October 2019, as he experienced occupational and social impairment with reduced reliability and productivity due to disturbances in motivation and mood, irritability and anger, occasional impairment in judgement, occasionally circumstantial speech and thoughts, infrequent suicidal ideation and hallucinations, and flattened affect. The higher, 70 percent rating is not warranted prior to October 2019 because the preponderance of the evidence does not reflect the increased level of severity and frequency of symptoms prior to that date. As noted, while the Veteran endorsed having suicidal ideation on two occasions prior to October 2019 and the March 2010 examiner noted that his impulse control was below normal, the preponderance of the evidence does not reflect that his suicidal ideation or periods of irritability and anger rose to the level contemplated by the 70 percent rating. In this context, the Board also notes that, despite the Veteran’s moderately severe symptoms and the resulting difficulty interacting with certain people, he remained married, continued to work, and reported enjoyment playing in his band, which shows difficulty establishing and maintaining effective interpersonal relationships, as opposed to an inability to do so. Indeed, as noted, the Board finds the evidence dated prior to October 2019 does not reflect that the Veteran’s symptoms, while moderate to severe, more closely approximated the symptoms associated with a 70 percent rating but, instead, resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating, but no higher. As noted above, the evidence reflects that the Veteran reported experiencing increased irritability, depression, and intrusive thoughts in October 2019, and the November 2019 VA examiner noted the Veteran endorsed experiencing additional symptoms, such as mild memory loss, difficulty adapting to stressful circumstances, such as the workplace, suicidal ideation more recently, and obsessional rituals. The AOJ awarded an increased, 70 percent rating, effective November 18, 2019, based upon the evidence of increased symptomatology noted at the VA examination, and the Board agrees that the evidence in 2019 shows more frequent and severe symptoms that more nearly approximate the level of severity contemplated by the 70 percent rating. However, the Board notes that the evidence raises a reasonable doubt as to whether the Veteran expereinced increased frequency and severity of symptoms in October 2019, as he is shown to have reported having higher levels of anxiety, depression, and anxiety during outpatient treatment at that time. As such doubt is resolved in favor of the Veteran, the Board finds the 70 percent rating is warranted from October 16, 2019, but no earlier. However, a rating in excess of 70 percent is not warranted prior to or after October 16, 2019, as the evidence does not reflect the Veteran exhibited a total impairment in functioning, including after he experienced increased, more severe symptoms in October 2019. Indeed, the Veteran was not shown to have a gross impairment in thought process or communication, persistent danger of hurting himself or others, persistent delusions or hallucinations, grossly inappropriate behavior, inability to perform activities of daily living, disorientation to time or place, or memory loss for relative’s names or his name. Therefore, the evidence does not reflect that the Veteran manifested symptoms or functional impairment that more nearly approximated a total impairment to warrant a higher, 100 percent rating. The Veteran has asserted that the GAF scores reflected in private treatment records dated March and July 2010 warrant a 100 percent rating. See December 2013 notice of disagreement and representative statements dated October 2015 and May 2019. While the Veteran believes he is entitled to a higher rating on the basis of Global Assessment of Functioning (GAF) scores, “[a]n adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness.” Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). Therefore, the GAF scores will not be used to determine the ratings assignable for his PTSD during the appeal period. Instead, the Board has considered the lay and medical evidence of record to conduct a holistic analysis that considers all associated symptoms and the resulting functional impairment expereinced by the Veteran. For the reasons explained above, the Board finds the preponderance of the evidence supports the grant of no higher than an initial 50 percent rating and a 70 percent rating, effective October 16, 2019, but no earlier; however, the preponderance of the evidence is against the grant of a rating in excess of 70 percent prior to or after October 16, 2019. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.