Citation Nr: 21024685 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-50 810 DATE: April 23, 2021 ORDER A rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) with secondary major depressive disorder (MDD) is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT For the entire appeal period, the Veteran’s PTSD with secondary MDD is manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for PTSD with secondary MDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2016 by a Department of Veterans Affairs (VA) Regional Office. In February 2020, the Board remanded the appeal for additional development. While on remand, in an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) recharacterized the Veteran’s disability as PTSD with secondary MDD. The appeal now returns for further appellate review. Entitlement to a rating in excess of 50 percent for PTSD with secondary MDD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The current appeal period begins on May 18, 2016, the date VA received the Veteran’s claim for an increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, the Veteran’s PTSD with secondary MDD is evaluated as 50 percent disabling pursuant to DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. In this regard, a 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. 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, due to such symptoms 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is “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). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126(a). The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). After a review of the record, the Board finds that, for the entire appeal period, the Veteran’s PTSD with secondary MDD is manifested by psychiatric symptomatology resulting in, at most, occupational and social impairment with deficiencies in most areas. Consequently, a rating of 70 percent, but no higher, for such disability is warranted. In this regard, in June 2015, the Veteran was shot in the face by a stranger, which he alleges worsened his PTSD as it remined him of his service in the Republic of Vietnam and, thus, he filed a claim for an increased rating for such disability in May 2016. At a July 2016 VA examination, the examiner noted diagnoses of PTSD and traumatic brain injury (TBI). However, he was able to differentiate what symptoms, and resulting functional impairment, was attributable to each diagnosis. Specifically, he noted that the Veteran had a head injury in the 1980s and appeared to make a relatively full recovery, and any residuals from that injury and his subsequent gunshot wound to the face have left him with some mild memory difficulty, but the rest of his symptoms were the result of his PTSD. The examiner also noted that the Veteran’s PTSD was likely made worse as he was shot in the face approximately a year previously, and he now had considerable problems with re-experiencing that incident as well. The examiner found that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. In this regard, it was noted that the Veteran reported that he attends church regularly and has some friends at church. He also kept in contact with his wife’s two daughters. The Veteran was also working part-time at a senior center driving the residents around. His symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Subsequent VA treatment records reveal that the Veteran attended group therapy and, in August 2016, he reported that his mood bounced all over the place and he was happy to be alive. He had no recent suicidal thoughts, but had some years ago. He also had flashbacks to being shot every day and nightmares. In October 2016, the Veteran reported feeling more agitated and angry, and, in November 2016, he stated that he went to Nevada and spent Thanksgiving with friends, with whom he had a relationship for 30 years. In December 2016, the Veteran stated that changes at work became stressful and he left his job, and was considering applying for a position as a security guard. The Veteran continued looking for work, which added to his frustration. See March 2017, May 2017, July 2017, and August 2017 VA treatment records. In August 2017, the clinician noted that the Veteran had passive suicidal ideation, but without plan or intent. The Veteran also reported that he had occasional suicidal ideation in February 2018, but did not feel serious about it. Additionally, in November 2018, he acknowledged that he did not recognize his PTSD symptoms from Vietnam until after he survived being shot in the face and almost dying. Furthermore, in April 2019, the Veteran had an unexpected visit from his sister, whom he had not seen in 21 years, and niece, which went really well. In June 2019, he reported feeling depressed, and indicated that he attended social activities even though he did not feel like it. Nonetheless, the Veteran stated that was looking forward to attending a breakfast for combat veterans. A month later, he reported that he was feeling more depressed, but was doing fine with his veterans and church groups and was becoming a mentor. In January 2020, the Veteran stated that he was still looking for part-time work and indicated that he may apply for a position with the U.S. Census. In May 2020, he stated that he hoped to be hired when the community reopened. The Veteran was afforded another VA examination in July 2020. At such time, the examiner noted diagnoses of PTSD and MDD, recurrent, moderate. He found that such disabilities resulted in 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 this regard, it was noted that the Veteran reported that he had been married for 23 years and, his and his spouse’s relationship has had ups and downs. He also stated that he did not socialize very much, but went to a veteran’s breakfast once per week at a local restaurant, and was busy fixing projects and doing things around the house. He was not currently employed and retired. The Veteran reported depressive symptoms of apathetic, social isolation, low mood/sad and hopeless, low motivation, irritability, low interest, concentration problems, sleep disturbances, no guilt, some appetite fluctuations, and no thoughts of suicide. His symptoms also included anxiety; suspiciousness; chronic sleep impairment; mild memory loss; impairment of short and long term memory; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting. Based on the foregoing, the Board resolves all doubt in favor of the Veteran and finds that, for the entire appeal period, a rating of 70 percent, but no higher, for his PTSD with secondary MDD is warranted. Specifically, the Board finds that such disability results in occupational and social impairment with deficiencies in most areas due to the Veteran’s psychiatric symptoms of depression; a desire to isolate himself; irritability; passive suicidal ideation; hypervigilance; anxiety; suspiciousness; difficulty concentrating; memory impairment; sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances including work or a work like setting. In this regard, the Board finds that, while the July 2016 VA examiner found that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity, which is commensurate with a 50 percent rating under the General Rating Formula, and the July 2020 VA examiner determined that such disability resulted in 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, which is commensurate with a 30 percent rating under the General Rating Formula, the nature, frequency, severity, and duration of the aforementioned psychiatric symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas. Specifically, while majority of the Veteran’s aforementioned psychiatric symptoms are contemplated in the currently assigned 50 percent rating under the General Rating Formula, his symptoms of suicidal ideation and difficulty in adapting to stressful circumstances including work or a work like setting are noted to be indicative of a 70 percent rating. In fact, the Court has held that the language of the General Rating Formula “indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Moreover, such symptoms have resulted in limited social interactions with family and friends/acquaintances at church and veterans groups, and minimal part-time work. Thus, the Board finds that a 70 percent rating for the Veteran’s psychiatric disability is warranted. However, the Board further finds that such disability does not result in more severe manifestations that more nearly approximate total occupational and social impairment. Specifically, there is no evidence that the Veteran’s PTSD with secondary MDD results in 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. Furthermore, while the Veteran’s PTSD with secondary MDD results in occupational and social impairment with deficiencies in most areas, the evidence does not show that such results in total occupational and social impairment. In this regard, the Veteran was working part-time as a driver at senior center until December 2016, and continued looking for part-time work, indicating that he was not totally impaired due to his psychiatric disability. Additionally, such disability has not resulted in total social impairment. Specifically, he has maintained relationships with his wife of over 23 years and her children. He also has reported having friends at church and attends a weekly breakfast for veterans. The Veteran further reported that he spent Thanksgiving with a friend, who he has had a relationship with for 30 years in November 2016. Thus, the Board finds that the Veteran’s psychiatric symptomatology, and resulting functional impairment, does not more nearly approximate total occupational and social impairment. Therefore, a rating in excess of 70 percent is not warranted. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected PTSD with secondary MDD; however, the Board finds that the Veteran’s symptomatology has been stable throughout the period on appeal. Thus, assigning staged ratings for such disability is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this decision, the Board has applied the benefit of the doubt doctrine, which has resulted in the award of a 70 percent rating for the Veteran’s PTSD with secondary MDD for the entire appeal period. However, as the preponderance of the evidence is against a rating in excess of 70 percent for such disability, that doctrine is not applicable in such regard and his increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.