Citation Nr: 21028451 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-02 152 DATE: May 11, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and depression prior to February 12, 2021 is denied. Entitlement to a rating in excess of 70 percent for PTSD and depression beginning on February 12, 2021 is denied. FINDINGS OF FACT 1. Prior to February 12, 2021, the Veteran's psychiatric symptomatology has not resulted in occupational and social impairment with deficiencies in most areas. 2. As of February 25, 2021, the Veteran's psychiatric symptomatology has not resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD and depression prior to February 12, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 70 percent for PTSD and depression beginning on February 12, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2017 decision, the RO granted service connection for PTSD and assigned a 50 percent rating, effective July 1, 2011. In a February 2021 rating decision, the RO assigned a 70 percent rating effective February 12, 2021. As higher ratings remain available throughout the appeal periods, this matter remains before the Board. This matter was previously before the Board in September 2020, at which time it was remanded for further development. The issue of service connection for a right wrist disability was previously before the Board in September 2020, at which time the issue was remanded for further development. In the February 221 rating decision, the RO granted service connection for right median nerve neuropathy (claimed as pinched nerves in right wrist) with an evaluation of 10 percent effective July 28, 2011. As such, the right wrist service connection claim is not at issue. Increased Ratings 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 ratings 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. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. While a veteran's entire history is reviewed when making a disability decision, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different findings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's psychiatric disorder is currently evaluated pursuant to Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is 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 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating requires 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. 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shineski, 713 F.3d 112, 118 (Fed. Cir. 2013). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the U.S. Court of Appeals for Veterans Claims (Court) held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating when the appeal was certified after August 4, 2014. As this case was certified to the Board after that date, GAF scores are not applicable in this case. Moreover, because of the Court's emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to PTSD, the Board would never place reliance on GAF scores in any case. Entitlement to an initial rating in excess of 50 percent prior to February 12, 2021 At a November 2013 VA initial PTSD examination, the Veteran reported that he was married until 2011 but had been separated since 2001. He reported that he had three children but that his contact with them had been limited since they moved away from the area. He indicated that he had not talked to any of his children in about three years. The Veteran was currently involved in a romantic relationship and described it as "strained." He reported that he had limited social interactions and had few hobbies or leisure pursuits. The Veteran stated that he had always kept to himself; he had acquaintances but no "real friends." The examiner indicated the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss such as forgetting names, directions, or recent events, and disturbances of motivation and mood. The Veteran reported ongoing depression, difficulty concentrating, and declined motivation. Suicidal ideation was not reported or indicated. Objectively, the Veteran was neatly groomed and appropriately dressed. He was fully oriented. Thought process and content were unremarkable. There were no delusions or hallucinations. His mood was dysphoric, and his affect was appropriate to mood. Regarding judgment, the examiner noted that the Veteran understood the outcome of his behavior. Regarding insight, the examiner noted that the Veteran understood that he had a problem. No panic attacks were reported. The examiner provided an Axis I diagnosis of depressive disorder not otherwise specified (NOS). The examiner opined that the Veteran's disability resulted in occupational and social impairment with reduced reliability and productivity. At an August 2016 private medical examination, the Veteran reported that he got married at age 24 and divorced in 2013. He had three adult children with whom he had no contact. The Veteran remarried in 2014 but had dated his current wife for about seven years before the marriage. The Veteran retired from the Post Office in 2010 and denied having interpersonal problems on the job or leaving jobs because of emotional or behavioral factors. The Veteran reported emotional distress at cues or reminders of what happened during service, including anything on TV or the news about the Navy or explosions. He described physical reactions at these times, where his heart will race, his breathing changes, and it takes him about 5 minutes for his body to recover. This has occurred 4 times in the past month and is rated as mild. The examiner diagnosed PTSD and indicated that the Veteran's symptoms included hypervigilance, sleep disturbance, poor concentration, short attention span, irritability, increased psychomotor activity, coherent but hesitant and uncertain speech patterns, and impaired abstract ability. The Veteran described continuous strong feelings of detachment, alienation or being cut off from others including his children. Further, he described a persistent inability to experience positive emotions of which the examiner rated as severe. The examiner rated the Veteran's social impairment as definite with a few aspects of other functioning remaining and, his functional impairment as moderate but that the Veteran functioned satisfactorily with effort. Further, the examiner indicated that the Veteran had a clear presence of aggression and rated it as severe. The examiner noted that the Veteran had a severe neurocognitive deficit, but stated that the cause was unknown and may be due to other organic factors. The examiner concluded that his current impairment from PTSD was "moderate." Finally, the examiner acknowledged that the DSM no longer used GAF impairment rating scales, but utilizing the World Health Organization System his impairment would be 3.8 (moderate to severe). Throughout this period, the Veteran was frequently seen for VA treatment, private treatment, and screened for mental health concerns. During those appointments, he continued to endorse feeling of depression, decreased focus and concentration, and recurrent distressing nightmares. At times, examiners noted that his mood, judgment, and insight were poor. See, e.g., February 2011 Appalachian Regional Healthcare Beckley Report. He routinely denied having any suicidal ideation. Based on the symptoms recorded throughout the period prior to February 12, 2021, the Board concludes that the frequency, severity, and duration of the Veteran's psychiatric symptoms have not more nearly approximated occupational and social impairment with deficiencies in most areas. The Board acknowledges that the Veteran repeatedly described symptoms of difficulty establishing and maintaining effective social relationships, particularly with his children and his romantic partner. At times, his judgment was impaired, as was his memory. Further, the record consistently reflects that the Veteran exhibited disturbances of motivation and depressed mood. However, these symptoms are specifically included in the criteria for a 50 percent rating. Moreover, the VA examiner opined that the Veteran's psychiatric symptomatology manifested in reduced reliability and productivity, and the private examiner found that the Veteran's current impairment from PTSD is moderate. As such, the Board finds that the Veteran's symptoms have been most in line with the 50 percent rating for this period. A 70 percent rating is not warranted because occupational and social impairment with deficiencies in most areas was not shown. The medical reports never showed, nor has the Veteran reported, symptoms including suicidal ideation; obsessional rituals which interfere with routine activities; illogical or obscure speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; or difficulty adapting to stressful circumstances. The Board acknowledges that the 2016 examiner classified the Veteran's current functional impairment as moderate to severe. However, the examiner specified that the impairment resulting from the Veteran's PTSD is moderate. Thus, the evidence does not reflect that the severity of the Veteran's symptoms warrant a 70 percent rating. In sum, the Board finds that the Veteran's symptoms during the period prior to February 12, 2021 do not more nearly approximate the criteria for a 70 percent rating, as his symptoms did not result in occupational and social impairment with deficiencies in most areas. Thus, the Board finds that an initial rating in excess of 50 percent is not warranted. Entitlement to a rating in excess of 70 percent for PTSD beginning on February 12, 2021 At a February 12, 2021 VA examination, the Veteran reported that he had been married to his second wife for the past six years. She had encouraged him to initially seek mental health treatment while they were dating. The Veteran described the marriage as "pretty good" but they spent a lot of time apart and he rarely socialized with anyone. The Veteran usually spent his days by himself, walking the dogs, watching TV, "piddl[ing] around the house." The examiner indicated that the Veteran's psychiatric symptoms included the following: depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances including work or a work-like setting. The Veteran described having nightmares about three times a month and denied homicidal or suicidal ideations. The examiner noted that the Veteran avoided others in order to reduce his anger and irritability, had severe alienation, chronic anhedonia and emotional numbing, difficulty in sustaining attention and to focus on task, and severe survivor guilt that fed his depressed mood and impaired his motivation. The Veteran was observed to be neatly dressed, cooperative and pleasant, alert, and oriented. The examiner found that his symptoms were moderate to severe in intensity and were chronic. The examiner concluded that the Veteran's disability resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. (Continued on the next page) Based on the symptoms recorded from February 12, 2021, the Board concludes that a higher, 100 percent rating is not warranted because total occupation and social impairment was not shown. The medical and lay evidence since February 12, 2021 has not shown symptoms including gross impairment in thought processes or communication, hallucinations, grossly inappropriate behavior, or severe memory loss. Based on the evidence of record, the Board finds that the Veteran's symptoms during the period beginning February 12, 2021, more nearly approximate the 70 percent rating, as his symptoms resulted in occupational and social impairment with deficiencies in most areas. Thus, the Board finds that a rating in excess of 70 percent for this period is not warranted at this time. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, Associate 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.