Citation Nr: 21030272 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-36 376 DATE: May 18, 2021 ORDER An initial rating in excess of 30 percent from March 1, 2013 to August 26, 2015, for PTSD is denied. An increased rating of 50 percent, but no higher, from August 26, 2015 to April 21, 2020 for PTSD is granted. An initial rating in excess of 70 percent from April 21, 2020 for PTSD is denied. FINDINGS OF FACT 1. The Veteran's PTSD was not productive of a disability picture that resulted in occupational and social impairment with reduced reliability and productivity prior to August 26, 2015. 2. The Veteran's PTSD was not productive of a disability picture that resulted in deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood prior to April 21, 2020. 3. The Veteran's PTSD was not productive of a disability picture that resulted in total occupational and social impairment at any time during the appeal period. CONCLUSIONS OF LAW The criteria for an increased stage rating for the Veteran's PTSD disability in excess of 30 percent prior to August 26, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. The criteria for an increased stage rating for the Veteran's PTSD disability of 50 percent from August 24, 2018 to April 21, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. The criteria for an increased stage rating for the Veteran's PTSD disability in excess of 70 percent from April 21, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps (USMC) from February 1997 to February 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Diego, California which, in pertinent part, granted service connection for PTSD with an evaluation of 30 percent, effective March 1, 2013. The Veteran's Pre-Discharge Compensation Claim was received in December 2012. In August 2018, the Veteran submitted additional evidence to be considered, and waived review by the agency of original jurisdiction (AOJ). The Veteran testified at a Travel Board hearing in August 2018 before the undersigned Veterans Law Judge (VLJ). A transcript thereof is on file. In December 2018, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is for an increased initial rating; therefore, the start of the appeal period is the date of service connection, March 1, 2013. After the Veteran filed his substantive appeal (VA Form 9) for an increased initial rating over 30 percent, while on remand the RO granted an increased rating to 70 percent effective April 21, 2020. The increased rating represents a partial grant; thus, the issue remains before the Board. Increased ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 considering 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. In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Increased ratings for PTSD The rating criteria for rating mental disorders, including anxiety disorder and PTSD, reads as follows: a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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. Id. A 50 percent rating requires 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; difficulty in establishing effective work and social relationships. Id. A 30 percent rating requires 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. The Board notes that the 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 will not afford any GAF scores mentioned in the record any probative value in cases where the DSM-5 applies. See also Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. February 23, 2018) (finding that the Board provided an inadequate statement of its reasons or bases for relying on GAF scores in its decision when the appeal was certified after August 4, 2014, and the DSM-5 applied to the claim). In this case, the Veteran's appeal was certified to the Board in September 2015. As such, the DSM-5 applies, and the Board will not afford GAF scores any probative value. Evaluation under § 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 Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that 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. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. 1. An initial rating in excess of 30 percent prior to April 21, 2020. The Veteran is currently rated at 30 percent prior to April 21, 2020, and 70 percent thereafter for his service-connected PTSD, and maintains he is entitled to an increased rating. The Veteran experienced mental health issues while in service after returning from combat zone in late 2005, while working as a USMC recruiter in New Jersey. The Veteran began mental health services in 2006 for anxiety, panic attacks, and PTSD according to his VA 21-0781, Statement in Support of Claim for PTSD. He had a VA PTSD Disability Benefits Questionnaire in May 2013. The Veteran was diagnosed with PTSD conforming to DSM-IV criteria after a recent discharge from military service and relocation. The Veteran was not diagnosed with another mental health disorder, and at the 2013 examination his level of occupational and social impairment was characterized by the VA examiner as showing 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. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, and chronic sleep impairment and difficulty in establishing and maintaining effective work and social relationships. These symptoms all fall within the 30 percent disability rating. The examiner also noted difficulty in establishing and maintaining effective work and social relationships which is a symptom generally associated with 50 percent disability rating. The Veteran's symptoms of anxiety, panic attacks, suspiciousness, sleep issues, anger, generally fall under the list for 30 percent disability and things like nightmares once a week also match the 30 percent disability frequency description. He was never noted to have unusual speech, difficulty understanding complex commands, impairment in memory, or impaired abstract thinking. Even when considering these symptoms the Veteran has the examiners found the frequency and severity of the symptoms did not result in social or occupational impairment or decrease in work efficiency or ability to carry out activities of daily living. Additionally the description of his family life overall, seems quite regular with a marriage that is working, young children living at home, close relationship with numerous family members, friends from high school and the Marine Corps. He was not actively treating his condition at the time of the examination and was noted to be able to perform activities of daily living and was fully independent. He went on outings with his family and also traveled to visit extended family. Plus, the PTSD examination during this timeframe report a 30 percent disability picture all support the conclusion that an increased rating over 30 percent is not warranted. 2. An increased rating in excess of 30 percent but not higher than 50 percent from August 26, 2015. The Veteran was in Yuma for 1 week in August 2015 and was taking Xanax for a year for anxiety, but then he took more of it, reports that he "had a mental breakdown" at a family event. Progress notes from this reflect he was rambling, had delusions, disorientation, hallucinations and was agitated and aggressive. He was talking to people who were not there and his wife was worried she would hurt someone. On clinical examination there was no definite suicidal or homicidal thoughts but the physician noted the Veteran did not make any sense. He had loose associations and flight of ideas and got angry and agitated and had to be physically restrained. The Veteran underwent a VA PTSD examination during this stage of the appeal period. That examination took place after the change from DSM-IV to DSM-V evaluations and was conducted using DSM-V criteria in September 2015. The 2015 examiner also diagnosed PTSD under DSM-V criteria but commented that there was "some remission from last exam as his "nightmares" are more about his time as a recruiter than combat as are any intrusive memories. Anxiety is more generalized but depressive symptoms and irritability appear about the same." The examiner diagnosed no other mental disorders other than PTSD, and no traumatic brain injury (TBI). Like the previous VA PTSD exam, the examiner summarized the Veteran's level of occupational and social impairment due to PTSD as demonstrating 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. This examiner noted like the previous one, that he did review the Veteran's C-file. The September 2015 examiner noted that the Veteran was still married since his last PTSD exam, that he lives in the house they own, with their two sons, with his wife's family in the area. The Veteran maintained contact with several friends from service, but none in the area. He gets out with his wife and sons and other couples in the area, swims 2-3 times a week, takes drives to relax, walks the dog, avoidance depends on the day as opposed to the situation, but does have anxiety around big events like big family gatherings. The examiner noted only three symptoms that actively apply to the Veteran's diagnosis; anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. Progress notes from the period December 2015 say, "doing a lot better since started taking Seroquel in addition to sertraline." The Veteran denies any depression since discharge from USMC, feels cared for by family who are supportive, and is regularly involved with Church activities. The Veteran reports hypervigilance and sits in the corner in crowded places like restaurants, theaters, or stadiums to make sure of easy escape. He has nightmares related to combat/deployment/army recruitment center. He avoids talking to people on active duty to avoid trauma-related memories. He has reduced panic attacks (goes to Marine center), but he avoids social activates outside of family. He reports intermittently getting angry, and feels "rage" at times when wife steps in. These intermittent "out of proportion anger issues" make his interaction difficult, but he also reported mood "getting better." An October 2016 progress note at a follow-up appointment reports the Veteran is clean, well-groomed, has a pleasant demeanor with good eye contact. Euthymic mood, congruent affect. No symptoms of mania. Continues to have irritability and nightmares once a week related to PTSD, at this time sertraline is helpful in stabilizing mood, no longer meets criteria for a depressive episode. The Veteran reported no homicidal and no suicidal thoughts or plans, no reported financial stressors, and has some friends that offer social support. He also reported being involved in church meetings and events on a weekly basis. The Veteran said his PTSD was getting worse at the August 2018 Board hearing. He says he has increased panic attacks, an average of five per week. He is a stay-at-home dad, who at times, feels overwhelmed, or cannot complete tasks. He admits to having problems with memory loss, and not recalling things in conversations with his spouse. The Veteran, who is retired from marine service, says he has not followed up with employment outside the home due to anxiety and sees himself as the stay-at-home dad. The Veteran said that since retirement, his symptoms continue to affect his function at home, and relationships with his spouse and family, and especially his daily duties as a stay-at-home dad. He feels he needs more focus and concentration. He becomes jittery at times, frequently irritable, anxious, and emotionally numb multiple times a week. At one point in August 2018 he had to call the crisis line and was detained on a behavioral health hold. Since that incident he has become an outpatient at his local VA facility with ongoing medical services and medications. He admits to sometimes feeling completely lost and distressed, worthless as a human and as a parent and even physically ill, throwing up and hyperventilating. The Veteran's symptoms during this period correspond closer to reduced reliability and productivity due to panic attacks more than once a week, impairment in short and long-term memory, disturbance in motivation and mood, difficulty in establishing and maintaining effective work and social relationships. These symptoms include anxiety, irritability, sleep issues and have occasionally flared up and included paranoid thoughts and suicidal thoughts. As such the Board finds a higher 50 percent rating is warranted. A higher evaluation is not warranted as the evidence does not reflect the symptoms more nearly approximate occupational and social impairment with deficiencies in most areas. The Veteran at all times has been noted to be appropriately dressed without flattened affect. He was not noted to have impairment of short- and long-term memory. The Veteran never described obsessional rituals or near continuous panic or impaired impulse control or neglect of appearance. Furthermore, the symptoms the Veteran had, such as anxiety, sleep impairment, irritability and emotional numbness, were not so frequent or disabling to more nearly approximate occupational and social impairment with deficiencies in most areas. While the Veteran did experience symptoms contemplated by a 70 percent rating, such as reported suicidal ideation necessitating calls to the hotline and paranoia resulting in an inpatient stay, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Although he reported frequent thoughts of death in statements, mental health treatment records from the same period reported that the Veteran often denied suicidal ideation. He also consistently denied active intent or a plan to harm himself. Similarly, while he at times reported hallucinations and paranoia, medical records frequently reflect that he explicitly denied hallucinations, both during screens and on full mental status examinations. The Board finds these treatment records to be probative evidence of his mental state at that moment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (Federal Rule of Evidence 803(4) expands the hearsay exception on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Significantly, VA examiners reviewed the treatment records, inpatient records and lay statements and concluded the symptoms severity did not more nearly approximate that of deficiencies in most areas. The examiner even explained that the manic episode may have been due to Xanax use and the Veteran reported doing better on a different medication. As noted above, the Veteran continued to be married and maintain relationships with his family, described outings and even vacations. In sum, the Board finds that the medical evidence of record, including the Veteran's multiple VA psychological evaluations, the Veteran's private psychiatric evaluation, and the Veteran's VA treatment records from, show that the duration of the Veteran's reported symptoms, including the times when he reported suicidal ideation and hallucinations, has not been of the frequency or severity to more nearly approximate the level contemplated by the 70 percent disability rating. Accordingly, the Board concludes that the Veteran's PTSD was 50 percent disabling, but no higher, is warranted for this period. 3. An increased rating in excess of 70 percent from April 21, 2020. The Veteran had one more VA PTSD examination, April 24, 2020, where he was also granted an increased rating by the RO, to 70 percent. This increase is supported by the examination findings listed in the April 2020 VA PTSD report. At the exam, the examiner also confirmed the PTSD diagnosis under DSM-5 criteria. The Veteran said he stopped taking PTSD medication for panic and depression in January 2019, because he wanted to rely on his religious faith instead. The Veteran reported that his panic symptoms have become worse, and he has become even more paranoid and anxious due to COVID-19. The Veteran described symptoms of PTSD which the examiner recognized as chronic hypervigilance; nocturnal autonomic arousal; an exaggerated startle response; avoidance of trauma-related stimuli and aversive reactions to trauma-related stimuli when he comes in contact with them; unpredictable mood fluctuations; and ongoing struggles with hopelessness, helplessness, and lost interest in things that he used to enjoy. The Veteran reported that all these issues negatively affect his self-worth, his anxiety, his decision-making capabilities, his appetite, his judgment, concentration, memory, attention, his impulsivity, and his overall temperament. The April 2020 examiner summarized the Veteran's level of occupational and social impairment as having deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. These recent exam results most closely corresponds to a 70 percent disability picture due to their increased symptoms frequency and severity. As a result of his choosing to stop with his medication, the Veteran's PTSD symptoms have gotten markedly worse. Regarding his daily routine, Mr. [REDACTED] reported that he typically wakes up between 3 and 5 o'clock in the morning. He needs constant reminders and supports provided by his wife when attending to his hygienic responsibilities. He does chores around the house with limitations caused by a lack of motivation, chronic fatigue, and anxiety. He will spend the remainder of his day sitting in a room by himself until he ends his day at various points in the evening. He stated he has great difficulties falling asleep and remaining asleep. He enjoys playing with his children for leisure and he avoids all unnecessary social contacts at all costs due to his ongoing struggles with social discomfort, high levels of anxiety, and generalized fears. As he claimed, "My wife makes me go out." The Veteran reported no perceptual disturbances, decreased need for sleep or delusional thought content, but made it clear that he continues to struggle with racing thoughts and paranoia especially at night when he is trying to sleep and when he is in the presence of large crowds or chaotic situations. The record shows the Veteran experiences a severe impairment level at this stage, but not a 100 percent disability, which corresponds to total occupational and social impairment. In order to qualify for the next higher rating his symptoms would be characterized by gross impairment of 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 relatives, own occupation, or own name. The record does not reflect that the Veteran has symptoms of the type, severity, and frequency associated with a 100 percent mental health disability. He continues to be married and maintain relationship with his kids and will even go out at his wife's urging. While he described some racing thoughts or paranoia, this was not described as constant. He also did not have memory loss for things like names of close family members or disorientation to time or place. An increased rating in excess of 70 percent (with 100 percent being the only higher rating possible) is not warranted based on the evidence contained in the latest VA PTSD examination, medical treatment notes or other evidence of record; therefore, the Veteran's claim for an increased rating over 70 percent must be denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Black, 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.