Citation Nr: 21032601 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 09-49 514 DATE: May 27, 2021 ORDER For the entire appeal period stemming from the Veteran's September 11, 2007, claim, a rating of 70 percent, but no higher, exclusive of the periods where a temporary total rating has been assigned, for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT For the entire appeal period stemming from the Veteran's September 11, 2007, claim, exclusive of the periods where a temporary total rating has been assigned, the Veteran's PTSD was manifested by psychiatric 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 For the entire appeal period stemming from the Veteran's September 11, 2007, claim, the criteria for a rating of 70 percent, but no higher, exclusive of the periods where a temporary total rating has been assigned, for PTSD 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 1982 to September 1985. He is the recipient of numerous awards and decorations, to include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Veteran testified before a Decision Review Officer (DRO) and, in June 2012, he testified before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the record. In December 2012 and January 2018, the Board remanded the case for additional development and it now returns for further appellate review. The Board notes that, in September 2020, the Veteran was sent a letter indicating that he had elected an in-person hearing with a Veterans Law Judge and, in light of COVID 19, was encouraged to opt into a virtual hearing; however, such letter was sent in error as his Board hearing was previously held in June 2012 and he has not subsequently requested a second hearing. Quinn v. Wilkie, 31 Vet. App. 284 (2019). Entitlement to a rating in excess of 50 percent prior to December 1, 2008, and in excess of 70 percent thereafter for PTSD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts founda 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. As noted above, the rating decision on appeal was issued in February 2009; however, as articulated in the December 2012 decision, the appeal period before the Board begins on September 11, 2007, the date of receipt of the Veteran's increased rating claim, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For such appeal period, the Veteran's service-connected PTSD is evaluated as 50 percent disabling prior to December 1, 2008, and 70 percent disabling thereafter, exclusive of the time periods where a temporary total rating has been assigned (i.e., January 4, 2008, to December 1, 2008; April 11, 2017 to August 1, 2017; and August 20, 2018, to May 1, 2019), pursuant to DC 9411, provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130. In this regard, a 50 percent rating is warranted where 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; 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, 11617 (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 11718 ; 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). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the RO on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the RO. See 80 Fed. Reg. 53, 14308 (March 19, 2015). In the instant case, the Veteran's claim was certified to the Board in September 2011 and, as such, the DSM-IV applies to his claim. In this regard, the Board notes that the DSM-5 removed reference to Global Assessment of Functioning (GAF) scores. However, as the DSM-IV governs the Veteran's claim, such scores are relevant to the evaluation of his PTSD. A GAF score is another component considered to determine the entire disability picture for the Veteran. The GAF scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994)). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter, supra. An assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126 (a). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered, but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). Turning to the evidence of record, VA treatment records from 2007 show that the Veteran reported intrusive thoughts related to his combat experience and nightmares, and he was assigned GAF scores of 50 and 55. He usually denied suicidal and homicidal ideation at VA appointments, but also described a history of passive ideation. However, at an October 2007 VA examination, the Veteran reported homicidal ideation. Upon examination, the Veteran's appearance and hygiene were noted to be appropriate, but his affect and mood were abnormal with obvious disturbance of motivation and mood. While his speech and communication were within normal limits, he appeared quite anxious and angry, and his concentration was noted to be poor. He also exhibited poor ability to focus on tasks at hand. The Veteran reported no current panic attacks, no delusions, and no obsessive rituals. His thought processes and judgement were noted as appropriate. However, his memory was impaired and suspiciousness was shown upon examination. While the examiner found that the Veteran was capable of managing finances, it was noted that PTSD symptoms would interference in performing activities of daily living, with significant interference with daily chores. It was further noted that, while the Veteran was not in persistent danger of hurting himself or others, he had difficulty establishing and maintaining effective work, school, and social relationships and was unable to maintain effective family role functioning and recreation or leisure activities. In this regard, it was noted that the Veteran had held a variety of jobs over the years, to include carpenter, machinist, assembly worker, and fast food service, and described his relationship with his supervisor as poor and his relationship with co-workers as fair. In this regard, he indicated that he felt that the supervisors did not know what they were doing, so he either was fired or quit; however, he indicated that he was currently working with fair relationships with his supervisor and co-workers, and had not lost any time from work. A GAF score of 50 was assigned. Also in October 2007, the Veteran's sister submitted a statement describing his inability to interact, depression, irritability, loss of interest in activities, and outbursts of anger. She specifically stated that the Veteran isolated himself for days at a time, lost wight, and did not look healthy. She stated that he would call her crying, sometimes explaining what concerned him and sometimes simply crying without explanation. In November 2007, the Veteran denied suicidal ideation, but reported a history of passive suicidal ideation and homicidal ideation for one individual. While the Veteran is assigned a temporary total rating for his PTSD as of January 4, 2008, the hospital admission note from January 10, 2008 describes his functioning for the time period prior to the date of admission. In this regard, the Veteran reported that he had continued to experience nightmares, night sweaters, outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, detachment from others, restricted range of affect, avoidance behavior, panic attacks, poor memory, and serious relationship issues. In this regard, while he stated that he maintained relationships with his parents and girlfriend, he reported isolating himself and being impaired in his social functioning. He stated that it was not unusual for him to stay up for four days at a time, which further impacted his functioning. Also of note, a friend and coworker submitted a statement in May 2008 describing the Veteran's prior behavior during this early period on appeal, to include his attempt to work and interact socially. In this regard, the statement described the Veteran's outbursts of anger and impaired impulse control during social interactions. It also stated that the Veteran neglected his personal appearance and hygiene, and appeared to not care about anything anymore. He described watching the Veteran's frustrated attempts to work and socialize, impaired by confusion, inability to remember simple tasks, panic, and anxiety. In October 2008, a GAF score of 51 was assigned and, in November 2008, it was noted that the Veteran's GAF score at the time of his admission in January 2008 was 30 while it was 40 at the time of his discharge that month. The Veteran was afforded a VA examination in January 2009, at which time his mood was irritable and affect constricted, but the attitude exhibited at the time of examination was cooperative and attentive. He reported occasional auditory hallucinations, but such were noted to be non-persistent. Specifically, he described experiencing four to five episodes of hearing his girlfriend's voice when she not was present. The Veteran also reported one episode of assaulting another member of VA program. The Veteran reported anxiety, panic, tachycardia, sweating, and shortness of breath when in a crowd. The Veteran also reported suicidal ideation, but stated that he had no specific plan or current intent. The Veteran described experiencing recurrent and intrusive distressing memories, avoidance behavior, feelings of detachment or estrangement from others, restricted range of affect, difficulty sleeping, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, and nightmares. In regard to his social functioning, the Veteran indicated that he was separated and awaiting divorce, but he also described seeing his parents occasionally and visiting with his girlfriend at least a few times per month, even though the relationship was strained. He described going bowling oncer per week, but otherwise staying in his apartment and watching tv or sleeping. As pertinent to his occupational functioning, it was noted that, in December 2008, he reported that he had been working at FedEx briefly as a temporary worker, but was laid off due to administrative reasons and was waiting to return to such job; however, he was never rehired and had not worked since November 2008. A GAF score of 37 was assigned, and the examiner noted that the Veteran had major impairment in mood, social, and occupational realms. He further indicated that the Veteran's PTSD resulted in occupational and social impairment in most areas, but not total occupational and social impairment. Subsequent VA treatment records demonstrate that the Veteran began denying suicidal and homicidal ideation. Additionally, in July 2009, his GAF score was noted to be 58 and, in October 2009, it was noted that he was not in danger of hurting himself or others. The following month, the Veteran was accepted into a VA program designed to help him find housing. At such time, it was noted that he had problems maintaining independent living due to his PTSD symptomatology. Additional treatment records indicate that the Veteran continued to struggle with worsening nightmares, sleep problems, flashbacks, and depression. In March 2010, the Veteran's parents reported that he continued isolating and would sometimes lock himself away for long periods of time without eating, was easily angered, cried often, and experienced mood swings. Another statement regarding the Veteran's need for the HUD/VASH housing program acknowledged that he was unable to successfully manage all areas of his personal life due to anxiety and being easily overwhelmed. The Veteran was noted to need assistance in the completion of everyday tasks and required assistance to cope with daily problems. In April 2010, the Veteran testified at a DRO hearing and described experiencing panic attacks four to five times per week, sometimes more than once per day. He stated that he obsessively checks the perimeter wherever he stays, and that his hypervigilance in checking door and windows was a "constant thing." He described an incident of being unable to adjust to his therapy group being combined with another. He did acknowledge difficulty coping with everyday life but stated that he was not in danger of hurting himself or others. Thereafter, the Veteran was afforded another VA examination in May 2010. At such time, he reported that he was not totally socially impaired. In this regard, he stated that he had limited contact with his grandson and his sister was supportive and advised him of finances. He also stated that his parents were supportive and visited with his girlfriend twice per week. He acknowledged struggling with sometimes wanting relational closeness and sometimes wanting to isolate. He did describe limiting his other social interactions and experiencing feelings of detachment. He also reported one incident of finding it difficult to control his anger, stating that he prevented social interactions in order to prevent confrontations. He stated that he often tried to stay awake at night in order to avoid combat-related nightmares. Other PTSD symptoms reported were avoidance behavior, diminished interest and participation in activities, feelings of detachment and estrangement from others, irritability, outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated started response. Mental status was within normal limits with the exception of fatigued and tense psychomotor activity; flat affect; anxious, agitated, and depressed mood; sleep impairment; and panic attacks. The VA examiner observed that the Veteran's PTSD symptoms affected his ability to find and maintain employment, and noted serious, but not total, impairment in occupational and social functioning. A GAF score of 45 was assigned. Additional VA treatment records and the Veteran's testimony at the June 2012 Board hearing reflect that he continued to struggle with similar PTSD symptomatology. In this regard, he described losing family through his divorce and losing friends due to his inability to participate in activities. The Veteran testified to experiencing anxiety, irritability, insomnia, panic attacks, suicidal ideation, avoidance behavior, hypervigilance, and exaggerated started response. He also reported crying for no reason and experiencing feelings of hopelessness, but he described maintaining relationships, such as with his daughter and grandson. Subsequent records continue to reveal similar symptomatology, other than a temporary period of hospitalization for suicidal and homicidal ideation in June 2013. The Veteran was afforded another VA examination in June 2017, at which time the examiner found that his PTSD resulted in occupational and social impairment with deficiencies in most areas. Upon mental status examination, the Veteran was noted to be casually dressed and adequately groomed. No psychomotor agitation or retardation were noted, and he appeared pleasant, polite, and cooperative. Speech was fluent and coherent, mood was mildly anxious, affect was appropriate and friendly, and no hallucinations or delusions were present. His thought process appeared logical and goal-directed. At that time, the Veteran denied suicidal and homicidal ideation, as well as feelings of hopelessness or helplessness. The Veteran was judged to not be at significant risk of self-harm. Symptoms were noted to be recurrent, involuntary, and intrusive memories, exaggerated startle response, avoidance behavior, negative thoughts about himself and the world, markedly diminished interest or participation in activities, feelings of detachment or estrangement from others, irritability and angry outbursts, typically expressed as verbal or physical aggression towards others, hypervigilance, problems with concentration, and sleep disturbance. The Veteran also reported depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and difficulty and an inability in establishing and maintaining effective relationships. The Veteran was noted to be capable of managing his financial affairs. In regard to his social functioning, the Veteran reported that he had remarried, but he and his spouse had been separated for a few months as he was short-tempered, verbally abusive, too demanding, and too protective. He also indicated that he was isolative and emotionally distant. As pertinent to the Veteran's occupational functioning, he reported that he had not worked in years. He also indicated that, when he has a job, he usually does well at first, but then loses interest and self-destructs. The Veteran was subsequently awarded disability benefits from the Social Security Administration, largely based on the same symptomatology discussed, supra. In follow-up VA appointments, the Veteran expressed feelings of depression, anxiety, irritability, trouble concentrating, difficulty sleeping, and panic attacks. In August 2017, the Veteran reported the had been working on management of his PTSD symptoms, but still struggled with intrusive thoughts, panic attacks, isolative behavior, and inability to sleep more than three or four hours per night. The Veteran reported participating in three residential detox programs for substance abuse, as well as an in-patient PTSD program with the VA, as is reflected in the temporary total ratings previously assigned. In 2018, he denied new symptoms as well as current suicidal or homicidal ideation. In August 2018, the Veteran reported being separated from his current spouse, but described support from his family. He also described maintaining relationships with a few good friends. Subsequent VA treatment records reflect similar symptomatology, and occupational and social functioning, to include participating in social outings with other veterans and bowling once per week. He continued to denied suicidal and homicidal ideation and maintained relationships, to include with a girlfriend. By July 2020, the Veteran reported being engaged again and expecting a child. Based on the totality of the foregoing medical and lay evidence, and after resolving all doubt in favor of the Veteran, the Board finds that the nature, frequency, severity, and duration of the symptoms associated with his service-connected PTSD most nearly approximate occupational and social impairment in most areas for the entire appeal period stemming from his September 11, 2007, claim, thus warranting a 70 percent rating. However, as such disability is not shown to result in total occupational and social impairment, a 100 percent rating is not warranted at any time pertinent to the appeal period. Specifically, the record shows that, among other symptoms, the Veteran's PTSD has consistently resulted in suicidal ideation, occasional impaired impulse control and neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work like setting), and an inability to establish and maintain effective relationships, which are 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 a significant other and family members, and minimal work prior to December 2007, and none thereafter. Furthermore, the GAF scores assigned during the appeal period reflect moderate to severe impairment in functioning. Thus, the Board finds that a 70 percent rating for the Veteran's PTSD is warranted for the entire appeal period. 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 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 has not worked since December 2007 due to his PTSD, for which he has been awarded a total disability rating based on individual unemployability (TDIU), such disability has not resulted in total social impairment. Specifically, throughout the appeal period, the Veteran has maintained relationships, albeit strained and limited, with significant others (which has resulted in a marriage and engagement) and family members, to include his parents, sister, children, and grandchildren. Consequently, the Board finds that a rating in excess of 70 percent for the Veteran's PTSD is not warranted. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected PTSD; 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. Further, neither the Veteran nor his representative have 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 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 M. Breckenridge, 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.