Citation Nr: 21012417 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-08 630 DATE: March 4, 2021 ORDER A rating in excess of 50 percent prior to April 7, 2017 for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 70 percent from April 7, 2017 for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the period prior to April 7, 2017, the Veteran’s PTSD was productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW For the period prior to April 7, 2017, the criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to August 1971. In March 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the Veteran’s claims file. In a decision issued in June 2018 the Board, denied entitlement to an initial rating in excess of 50 percent prior to April 7, 2017 for PTSD, granted a 70 percent rating, but no higher, from April 7, 2017 for PTSD, and denied entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court issued a Memorandum Decision vacating the Board's June 2018 decision and remanded the matters on appeal for adjudication consistent with the instructions outlined in the Memorandum Decision. 1. Entitlement to a rating in excess of 50 percent prior to April 7, 2017 for PTSD. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. For the period prior to April 7, 2017, the Veteran’s PTSD is rated at 50 percent pursuant to the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 50 percent is warranted for a mental disorder that results in 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 higher rating of 70 percent is warranted for a mental disorder that results in 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 work-like setting); and inability to establish and maintain effective relationships. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. 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 veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As noted, the Veteran is currently rated at 50 percent for his service-connected PTSD for the period prior to April 7, 2017. For the reasons discussed more fully below, the Board finds that a higher rating is not warranted for that period. In pertinent part, the record shows that in September 2012, the Veteran underwent a VA examination to evaluate the severity of his PTSD. The Veteran reported that he was married, an active member of his church, he volunteered at a food pantry, and he liked to stay busy because it kept him involved and active with others. The Veteran also reported symptoms including difficulty with sleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, depressed mood, mild memory loss, and impaired impulse control such as unprovoked irritability with periods of violence. The examiner indicated that, overall, the Veteran’s symptoms were mild and caused mild to moderate impairment in occupational and social functioning, noting that the Veteran had worked at one job for 31 years and another for several more years without incident. In conclusion, the examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In September 2015, the Veteran underwent another VA examination to assess the severity of his PTSD. The Veteran reported symptoms of recurrent distressing dreams, dissociative reactions, intense or prolonged psychological distress at exposure to internal or external cues, marked physiological reactions to internal or external cues, avoidance of or efforts to avoid distressing memories, persistent and exaggerated negative beliefs or expectations, persistent negative emotional state, markedly diminished interest or participation insignificant activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stress circumstances including work or a work-like setting, and suicidal ideations. The examiner indicated that the Veteran had occupational and social impairment with reduced reliability and productivity. In January 2016, the Veteran underwent a private examination to evaluate the severity of his PTSD. The Veteran reported symptoms of bad memories; distressing dreams; psychological distress due to exposure to cues that resemble traumatic events; avoidance of distressing memories, thoughts, or feelings; memory problems; anger and irritability; feelings of alienation or detachment from others; hypervigilance; increased startle response; problems with concentration and focus; chronic sleep impairment; depressed mood; flattened affect; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty understanding complex commands; impaired abstract thinking; disturbance of motivation and mood; difficulty adapting to stressful circumstances; and suicidal ideations. The private examiner indicated that the Veteran had mild to moderate social functioning based on his various activities that he was involved in, such as being a member of a church, volunteering at the food pantry, and providing assistance to members of the church. The private examiner stated further that the global severity of the Veteran’s PTSD was rated as moderate, definite distress or functional impairment but functions satisfactorily with effort, and that he had occupational impairment with reduced reliability and productivity, consistent with a 50 percent rating. VA mental health treatment records dated from 2011 to 2016 consistently document largely unremarkable mental status examinations, with normal speech rate and rhythm and without suicidal/homicidal ideations. See November 2013 and October 2016 VA Treatment records. The Veteran testified at hearing before a Decision Review Officer (DRO) that he had symptoms of panic attacks 3 to 4 times per week, difficulty sleeping, unprovoked irritability, disorientation, problems with hygiene, and thoughts about suicide. See January 2017 DRO Hearing Transcript. He also reported that he had tremors which impacted his ability to work and that his PTSD prevented him from being employed. Id. Based on the foregoing evidence, the Board finds that for the period prior to April 7, 2017 an increased rating is not warranted for the Veteran’s service-connected PTSD.  In pertinent part, the Veteran has not demonstrated symptomatology reflective of the criteria for the next higher 70 percent rating.  The Board acknowledges that the Veteran displayed some symptoms which may be associated with a higher rating, such as suicidal ideations; speech intermittently illogical, obscure, or irrelevant; panic attacks 3 to 4 times per week, and impaired impulse control (such as unprovoked irritability with periods of violence). Significantly, however, prior to April 7, 2017, the Veteran’s suicidal ideations and speech problems only appeared to be present during the September 2015 and January 2016 examinations and reported at his January 2017 DRO hearing. In fact, in the Veteran’s VA treatment records, dated through October 2016, he consistently denied suicidal ideations or intent and his mental status examinations were largely unremarkable with normal rate and rhythm of speech. Therefore, while there may have been passive suicidal ideations and speech difficulty, which were occasionally present, these problems were not shown to have been a significant continuing factor in the Veteran’s disability. The Board also finds the statements made for purposes of seeking treatment to be significantly more credible and probative than statements made to a VA examiner for purposes of seeking compensation. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (recognizing that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, the record indicates that, despite the Veteran’s impaired impulse control and panic attacks, he was happily married and was able to regularly attend church and volunteer at a food pantry. There is also no indication that his panic attacks were nearly continuous or affected his ability to function independently. Therefore, despite these symptoms, the Veteran has not been shown to suffer from psychiatric symptoms of similar severity, frequency, and duration to cause occupational or social impairment equivalent to a 70 percent disability rating. Mauerhan, 16Vet. App. at 443. Rather, these symptoms, in combination with Veteran’s other psychiatric symptoms, are most adequately contemplated by the criteria for a 50 percent rating. As such, a higher rating is not warranted, and the claim is denied. In reaching the foregoing conclusions, the Board notes that, in the December 2019 Memorandum Decision, the Court bifurcated the discussion of the Veteran’s claim for an increased rating for PTSD into two separate periods (prior to and from April 7, 2017). For the period prior to April 7, 2017, the Court found that, the Board had erred in its prior decision by considering the Veteran’s Global Assessment of Functioning (GAF) scores and remanded this issue for the Board to correctly apply the Court’s holding in Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). In Golden v. Shulkin, the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) had abandoned the GAF scale and that VA had formally adopted the DSM-5, GAF scores were inapplicable to assign a psychiatric rating when the appeal was certified after August 4, 2014. Consistent with Golden and the fact that the Veteran’s appeal was certified after August 4, 2014, the Board has not considered the Veteran’s GAF scores in the adjudication of entitlement to an increased rating for PTSD prior to April 7, 2017. Instead, the evaluation of the Veteran’s disability rating has been assessed based on the symptoms demonstrated throughout the relevant appeal period. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent from April 7, 2017 for PTSD is remanded. The Veteran was last afforded a VA examination to assess his PTSD in April 2017. Since then, however, the evidence indicates that his PTSD may have worsened. In pertinent part, during the November 2020 vocational assessment the Veteran reported increase symptomatology, to include crying spells. Accordingly, the Board finds that VA’s duty to assist necessitates that this claim be remanded to schedule a new VA examination. 2. Entitlement to a TDIU is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. The matter of a TDIU is, thus, inextricably intertwined with the Veteran's claim remanded herein. Accordingly, remand of the inextricably intertwined TDIU issue is also required. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his service-connected PTSD. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner must identify all current manifestations of the Veteran’s PTSD and discuss symptoms and the current degree of occupational and social functioning associated with this disorder. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.