Citation Nr: 21012533 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-25 706 DATE: March 4, 2021 ORDER Entitlement to a disability rating of 70 percent, but no greater, for service-connected posttraumatic stress disorder (PTSD), prior to March 3, 2020, is granted. Entitlement to a disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD), from March 3, 2020, is denied. FINDINGS OF FACT 1. Prior to March 3, 2020, the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas. 2. From March 3, 2020, the Veteran’s PTSD was not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no greater, for service-connected PTSD prior to March 3, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent for service-connected PTSD, from March 3, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). That decision denied the Veteran a disability rating greater than 50 percent. The Veteran perfected and appeal to the Board asserting he was entitled to a 70 percent rating. In December 2019, the Board remanded the issue to the agency of original jurisdiction to schedule an updated VA examination. That examination was completed in March 2020. Based on the examination, the RO assigned a rating of 70 effective March 3, 2020. As this was not a full grant of the benefit the Veteran requested, the issue remains on appeal and is properly before the Board. AB v. Brown, 6 Vet. App. 35. Entitlement to a disability rating of 70 percent, but no greater, for service-connected posttraumatic stress disorder (PTSD), prior to March 3, 2020 and entitlement to a disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD), from March 3, 2020 The Veteran has claimed that his PTSD results in symptoms that warrant a 70 percent disability rating. Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation to apply to the Veteran’s disability, 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a Veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that 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). 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. Id. In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21. The Veteran’s PTSD is currently rated 50 percent disabling under the General Rating Formula for Mental Disorders (General Formula). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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. 38 C.F.R. § 4.130, Code 9411. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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 evaluation is warranted for total occupational and social impairment. This may be 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 list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, 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). Furthermore, 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. As relevant to this case, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court’s holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns the GAF scores mentioned in the record no probative value, and will not discuss them specifically. See also Golden v. Shulkin, 29 Vet, App. 221 (2018). The Veteran filed his claim for an increased rating on September 9, 2011. At the time, his PTSD was rated as 50 percent disabling. The claim was accompanied by two lay statements, one from his spouse and one from a coworker. They describe the Veteran’s as being easily annoyed and self-isolating. The Veteran’s spouse noted the Veteran has bad dreams and will avoid her for days at a time. The coworker notes the Veteran is very nervous completing tasks and is forgetful. The Veteran’s treatment records from this time support the reports of bad dreams resulting in a sleep impairment; self-isolation, and impaired memory. Records also indicate the Veteran had a depressed mood, anxiety, and outburst of anger from time to time; once resulting the Veteran quitting his job. He later found other employment. One provider noted on multiple occasions that he has “severely compromised” social relationships. A VA examination in October 2011, supports these findings, also noting markedly diminished interest or participation in significant activities. Similar findings were present in a May 2014 VA examination. The March 2020 examination noted these same symptoms, but also noted disturbance of motivation, difficult adapting to stressful circumstances and impaired impulse control. In general, the record overwhelmingly supports the presence of these symptoms consistently over the period of review. The Veteran also reported thoughts of death and killing himself. These were often noted as passive, and without a plan, but the Veteran wrote in August 2012 that these thoughts were constant. These thoughts are noted sporadically throughout treatment records, with other notes showing no suicidal ideation. Two of the latter instances were of note. In January 2011, the Veteran described detailed thoughts of killing himself in the narrative section, but then said he would not do it. Then, in the same record he denied suicidal ideations. Similarly, a May 2014 examination noted the Veteran did not endorse suicidal ideations, but in the same report the Veteran described an incident where his boss saved his life and remarked he did not know if that was a good thing. These incidents indicated the Veteran’s understanding of suicidal ideations may have been tied to the idea that they had to be more than passive. The United States Court of Veterans Appeals has made it clear the rating criteria for psychological disorders does not make a distinction between passive suicidal ideation and active suicidal ideation. Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Thus, the record supports a finding of suicidal ideation. Together, the Veteran’s symptoms support a 70 percent disability rating for his PTSD prior to March 3, 2020. The Veteran’s symptoms have demonstrated an impairment in the areas of work, with memory, anxiety, and anger all adversely affecting his ability to engage in worklike activities. His family relationships were impaired by his self-isolation and nightmares. His judgement, mood, and thinking have all been adversely affected by his depression, anxiety, memory problems, and suicidal ideation. The record supports that these symptoms are of the severity and frequency to result in social and occupational impairment with deficiencies in most areas. In contrast, prior to and from March 3, 2020, the record does not support a higher rating of 100 percent. The Veteran does not demonstrate a total occupational and social impairment. His anger outburst resulted in a lost job, but shortly thereafter the Veteran obtained a new job and was able to follow that job until 2016. His memory problems, while present, are not severe enough to support a total impairment. He routinely reports on family members, their names, and their relationship to him at therapy sessions, which is contrary to the level of memory impairment described in the 100 percent criteria. The Veteran does not pose a persistent threat to himself or others. He has anger outbursts and suicidal ideations but has not harmed anyone. He can engage in activities of daily living and does not report persistent delusions or hallucinations. There is one note of dissociative flashbacks once in August 2011, however, this singular incident is not of the frequency or severity to support a total rating. Moreover, the record supports the Veteran retains social relationships at home, albeit strained by his symptoms. He is married and helps to care for his older family members. The record also supports that the Veteran has retained employment, again strained by his symptoms but until 2016 he remained employed. In the March 2020 examination, the Veteran reported his retirement was due to a combination of symptoms, not just his PTSD. This was further supported by the finding of entitlement to individual unemployability granted in March 2017 that noted the Veteran’s unemployability was largely due to his heart condition and Parkinson’s disease. Notably, no increase in PTSD symptoms occurred around the time the Veteran discontinued work, indicating it was not the PTSD alone that resulted in the inability to maintain employment. These facts indicate the Veteran had neither a total social nor total occupational impairment. Therefore, the weight of the evidence is against establishing a 100 percent rating for PTSD. Nevertheless, a rating of 70 percent prior to March 3, 2020, is warranted. A rating in excess of 70 percent prior to and from March 3, 2020, is not warranted. SAUDIEE BROWN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Reed, 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.