Citation Nr: 21030987 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-60 339 DATE: May 20, 2021 ORDER An initial 70 percent, but no higher rating, for PTSD is granted. FINDINGS OF FACT Since the December 31, 2013 effective date of the grant of service connection, the Veteran's symptoms of PTSD more nearly approximate occupational and social impairment with deficiencies in most areas; symptoms resulting in total occupational and social impairment are not demonstrated at any time during this period on appeal. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 70 percent disability rating, but no higher, for PTSD 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 2002 to September 2006 and the United States Army from August 2008 September 2009. He is in receipt of many awards and decorations, to include the Purple Heart and the Marine Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD and assigned an initial 10 percent rating, effective December 31, 2013. The Veteran submitted a January 2016 notice of disagreement. In an October 2017 rating decision, the RO granted a higher initial 30 percent rating, effective from the December 31, 2013, effective date of service connection. Because a higher rating is available, and the Veteran is presumed to seek the maximum available benefit, the claim for a higher initial rating for PTSD remains on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing in September 2020. A copy of the hearing transcript is of record. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. As neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. When rating a mental disorder, VA 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. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA shall assign a rating 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). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A General Rating formula for evaluating psychiatric impairment other than eating disorders contains the actual rating criteria for evaluating the Veteran's disability. Pursuant to this General Rating formula, a 30 percent rating is assigned when there is 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). A 50 percent rating is warranted for 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 per 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 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (e.g., work or work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. The symptoms associated with each rating under the General Rating formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating formula. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). Id. at 443; see 38 C.F.R. § 4.130. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, "VA must engage in a holistic analysis" of the severity, frequency, and duration of the signs and symptoms of the veteran's mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018). The Veteran seeks an increased initial rating for his service-connected PTSD, which is rated 30 percent disabling since the December 31, 2013 effective date of the grant of service connection. The Veteran contends that he is entitled to a higher rating because his psychiatric symptoms during the relevant period were more severe than contemplated by his currently assigned rating. A December 2014 VA treatment record reflects that the Veteran reported nightmares every night, anger, irritability, recurring thoughts and images of combat experiences, he avoids crowds, was hyper-vigilant and hyper-alert. When driving he often sees images of the enemy. He has had suicidal ideations in the past thirty days. The examiner noted that the Veteran reported he punched himself instead of his wife. Medication for treatment was noted. He was diagnosed with chronic PTSD. The Veteran underwent a VA examination in May 2015. Upon examination, the examiner confirmed a diagnosis of PTSD. The Veteran reported that he lives with his wife and young daughter and he maintains some communication with his extended family. He stated that he enjoys going to the gym, exercising, and lifting weights. The Veteran endorsed symptoms of depressed mood, anxiety, sleep disturbance, nightmares about three times a week, anger, and irritability. The VA examiner characterized the Veteran's symptoms of PTSD as "mild" and opined that the Veteran's symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The VA examiner observed that the Veteran was on time for his appointment, was well oriented to time, place, and person, had no gait or speech problems, no abnormal muscle movements and made good eye contact. The Veteran did not report suicidal or homicidal ideations, plans, or tendencies. He was deemed capable of managing financial affairs. The Veteran did not receive regular VA treatment during the relevant period, but VA treatment records show that the Veteran reported depression, nightmares, anger, irritability, recurring thoughts of combat experiences, avoiding crowds, and hypervigilance. A February 2018 VA treatment record reflects that the Veteran endorsed symptoms of depression, anxiety, nervousness, anger and irritability, chronic sleep impairment and nightmares, flashbacks, and intrusive memories of his time in service, has problems with concentration and memory, with difficulties focusing, staring multiple projects, problems memorizing important things. A March 2018 VA suicide risk assessment note by the VA psychology department reflects that the Veteran thought of suicide monthly for the past three to four years with a plan to crash his vehicle. The Veteran noted that these thought have been absent for at least the past month. The Veteran reported a past suicide attempt where he reported becoming angry in front of his wife approximately seven month ago and taking a cell phone charger cord and wrapping it around his throat. He reported that his wife stopped him. He denied any desire to attempt suicide again due to wanting to be here for his seven year old daughter. An August 2018 VA psychiatry record noted that the Veteran denied auditory hallucinations currently, but sometimes he does them as well as suicidal and homicidal ideations. He has flashbacks, depression, feels isolated, needs to isolate, and has anger management problems. He is married and has a young daughter. The Veteran underwent a VA examination in January 2020. Upon examination, the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances in motivation and mood. The Veteran reported that he continues to live with his wife and daughter. The Veteran has also consistently reported a chronic history of suicidal ideation and reported a 2017 suicide attempt. Although he denies present intent or plan, he reports that he has suicidal ideation crosses his mind once in a while and though he tries not to think about them, he believes they'll always there. The examiner noted that the Veteran had irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, sleep disturbance, persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, and markedly diminished interest or participation in significant activities. At a hearing before the undersigned VLJ in September 2020, the Veteran testified that his PTSD symptoms included depressed mood, anxiety, sleep impairment, nightmares, issues with anger, irritability, violence, feelings of worthlessness and isolation. He further testified that he continues to have suicide thoughts that cross his mind every once in a while, he tries not to think about it, but "they'll always there. They're not going to go away." He has thoughts of violence against other people. He has feelings of worthlessness. When asked, the Veteran described checking behaviors around his home before going to sleep and described being able to go out but likes to have view of entire space. He stated that he is employed but occasionally loses time at work due to symptoms. He stated that he has no interest in socializing with coworkers and prefers to work alone. The Veteran identified gardening as an activity that helps with his PTSD symptoms. After careful review of the medical and lay evidence of record, and in resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial 70 percent rating, is warranted for PTSD with depressive disorder, since the December 31, 2013 effective date of the grant of service connection. However, a higher rating of 100 percent is not warranted as the Veteran does not have the type of symptoms that warrant this rating, nor the level of impairment required. The Veteran does not present with symptoms such as gross impairment in thought process or communication, 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. As such, the record does not show total occupational and social impairment as required for the 100 percent schedular rating. In making this determination, the Board is cognizant that in December 2019 a private psychologist determined that the Veteran's PTSD symptoms cause "profound" impairment in all aspects of occupational and social functioning and stated that the Veteran is "100 percent disabled." However, the Board must look at the cumulative evidence of record to analyze the severity, frequency, and duration of the signs and symptoms of the Veteran's PTSD in order to determine the level of occupational and social impairment caused by those signs and symptoms. See Bankhead, 29 Vet. App. at 22. In this regard, the Veteran has consistently endorsed symptoms of the type and degree most consistent with occupational and social impairment, with deficiencies in most areas. Therefore, the Board does not find that the December 2019 examiner's description of the Veteran's disability, including the terms "100 percent disabled," comports with the cumulative evidence of record, nor does it adequately describe the Veteran's overall disability picture. All potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). For the reasons stated above, the Board finds that the criteria for an initial 70 percent rating, but not higher, for PTSD since the December 31, 2013 effective date of the grant of service connection are met. However, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.