Citation Nr: 21041744 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 10-32 844 DATE: July 10, 2021 ORDER An initial 100 percent rating for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Since the effective date of the grant of service connection, the Veteran's service-connected PTSD more nearly approximated the criteria for total occupational and social impairment. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 100 percent rating for posttraumatic stress disorder 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 FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to February 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in March 2014 and October 2016. In an August 2017 decision, the Board denied entitlement to a rating in excess of 30 percent for the Veteran's PTSD prior to April 21, 2014, and in excess of 50 percent thereafter. The Veteran appealed the Board's August 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2019 memorandum decision, the Court vacated the Board's August 2017 decision and remanded the claim for further proceedings consistent with the Court's memorandum decision. In a January 2020 decision, the Board granted the Veteran an increased rating of 50 percent for PTSD, prior to April 21, 2014, but denied a rating in excess of 50 percenter thereafter. The Veteran appealed the Board's January 2020 decision to the Court. In December 2020, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the Veteran's attorney and the Secretary of Veterans Affairs ("the parties"), the Court issued an Order which vacated the Board's January 2020 decision to the extent that it denied the Veteran's entitlement to an increased rating in excess of 50 percent for the period prior to April 21, 2014 and thereafter, and remanded the claim to the Board for further action consistent with the terms of the JMPR. 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 Ratings 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. An initial rating of 70 percent, but no higher, for PTSD, is granted. The Veteran seeks an initial increased rating for his service-connected PTSD, which is rated 50 percent disabling from October 15, 2007. The Veteran contends that he is entitled to a higher rating because his psychiatric symptoms are more severe than contemplated by his currently-assigned rating. For the reasons specified below, the Board finds that an initial 100 percent rating is warranted throughout the period on appeal. The Veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. Diagnostic Codes 9201 through 9440 are rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, 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 assigned 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. Id. A 100 percent rating is assigned 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 hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. When evaluating a mental disorder, the rating agency shall 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; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the time of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on social impairment alone. Id. 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). Relevant evidence from the period on appeal includes lay statements, VA treatment records, a private opinion, and VA examinations and opinions. A July 2008 VA mental health note documents the Veteran's reports of recurrent thoughts of Vietnam over the prior two weeks. He reported sleep difficulties and dreams of being in a combat situation, and a sense of guilt and remorse thinking of the people who were killed in Vietnam. The Veteran also reported low self-esteem. The provider noted that the Veteran presented in a sullen mood and that psychomotor activity was slow. The Veteran denied suicidal thoughts and denied feeling paranoid or suspicious. October 2007 to July 2008 VA treatment plans from the Veteran's social worker reflect treatment for PTSD symptoms of nightmares, nocturnal trauma, avoidance, startle, agitation, and aggression. A November 2008 VA examination report reflects that the Veteran is married and has two children. The Veteran reported working for 40 years as a self-employed truck driver up until his 2002 brain aneurysm, at which time he began working for Parks & Gardens, and then at a community church doing maintenance work 4-5 days a week. Symptoms applicable to his diagnosis included: avoidance, decreased range of affect, exaggerated startle response, chronic sleep impairment, short-term memory impairment, mild paranoia with difficulties trusting people, and decreased concentration. The Veteran admitted to a lot of obsessive thoughts, and some paranoid thoughts. The Veteran reported experiencing suicidal thoughts a long time ago but denied a definite suicidal plan. The Veteran reported seeking regular counseling through the Vet Center since 2003. The examiner observed the Veteran as clean shaven, and cooperative during the interview with good eye contact. The Veteran's affect was "a little constricted," speech was coherent and at a slightly increased rate, his thoughts were a bit circumstantial. The examiner noted that the Veteran clearly has issues with short-term memory. Overall, the examiner noted that the Veteran's prognosis for improvement was "fair." During an April 2009 VA mental health visit, the Veteran reported feeling withdrawn, not getting motivation out of his daily chores, and feeling as though he gets stressed out over small things which he used to deal with in the past relatively well. The Veteran reported unhappiness in his life. An August 2009 VA mental health provider noted the Veteran as depressed, tearful, crying, and blaming himself for killing civilians in Vietnam. The Veteran denied thoughts of self-harm or suicide and was not paranoid or suspicious. The Veteran agreed to start medication at night to sleep better. During a review PTSD VA examination in September 2009, the Veteran reported continued intrusive thoughts about Vietnam and seeing images in his mind of children who were killed or injured. These thoughts and images are triggered by various things, including helicopter sounds. The Veteran reported feeling guilty about surviving. He also reported recurring nightmares and that he is sometimes able to fall back asleep after, and other times he is not. The Veteran reported avoiding crowds and noisy places, and feeling panicky at times, including when he hears a helicopter. He reported having good relationships with his wife and children. The Veteran reported being easily startled, experiencing difficulties falling asleep and sleeping, anger, and a problem with authority figures, stating that he is easily irritated by people. The Veteran was appropriately oriented. The Veteran reported being employed part time and having occasional spats with his supervisor, but that he is well regarded at work and had no concerns regarding his performance. The Veteran reported missing 3-4 days of work in the prior year for emotional health reasons. The Veteran had normal speech, was casually dressed, and had a neutral mood, with a fairly congruent affect. The Veteran admitted to occasional auditory hallucinations of angels talking to him but denied any other hallucinations. Also in September 2009, the Veteran's Vet Center counselor, M.T.F., submitted a letter regarding the then current severity of the Veteran's PTSD. The counselor wrote that it is important to recognize that the Veteran was experiencing and living with a great deal of PTSD symptoms prior to his 2002 aneurysm. He wrote that both the Veteran's history and self-reporting indicate intensity, anger, and agitation from the time of his return from Vietnam. He noted that the Veteran has been aloof from intimate and meaningful personal experiences. The Veteran will use humor and personal persuasion to keep others at bay from his true feelings. The counselor noted that the Veteran's wife expresses frustration with the Veteran's inability to involve himself in a meaningful way with her, other family members, and former friends. The counselor noted that the Veteran's post-Vietnam history indicates suspiciousness and vigilance, and that the Veteran shows a lack of insight related to other's perception of him regarding the intensity of anger and agitation issues. The Veteran's wife submitted a lay statement in September 2009. She reported the Veterans symptoms of crying spells, depression, exaggerated startle response, nightmares, and very low concentration. She wrote that the Veteran is argumentative, has trouble doing work around the house, that he just goes "off in his own world," and is "very aggressive." A March 2010 VA mental status exam notes the Veteran's judgment as fair, and his mood as neutral with narrow range of affect. He was alert and coherent in causal dress with good hygiene. Pursuant to an April 2010 self-screen, the Veteran reported experiencing problems understanding what is said to him, and with finding the words he wants to say some of the time. He reported problems with concentration, confusion, difficulties with short-term memory, putting things off which he never used to do before, decreased patience, having a short fuse, being more tired than usual, difficulty falling and staying asleep, and mood swings. A June 2010 VA social work note reflects the Veteran's reports of being angry for as long as he can remember, and his struggles with authority figures. He was transferred four times to different areas in his last job. The provider noted symptoms of irritability, trust issues, intrusive thoughts, and avoidance. In an October 2010 statement, the Veteran reported tension in his marriage, anxiety, panic attacks, trouble sleeping, suspiciousness, isolation, and aggression. In April 2014, VA obtained a review PTSD VA examination. The Veteran reported having "some conflict" with his wife, and that they have not slept in the same bed for the last 10 years. The Veteran reported that, "[his] stupid supervisor fired [him]," the prior week. The Veteran reported that his supervisor cut his hours and that he went to talk to him, which resulted in the Veteran "calling him names." He reported being fired from this same job on 3 prior occasions. The Veteran had secured employment with parks and recreation working 30 hours per week. Veteran endorsed daily distressing thoughts of military trauma that affect him for a few minutes up to several hours a day, nightmares 4 times a week, with difficulty falling asleep after being awoken. The Veteran reported strong physical reactions to reminders of military trauma, including racing heart, sweating, and shaking. The Veteran avoids conversations, crowds, thoughts, situations, and media that remind him of his military trauma. He reported negative beliefs that others cannot be trusted, and strong emotions of sadness and anger related to military trauma. He reported decreased interest in things he used to enjoy, hypervigilance, exaggerated startle response, and reduced concentration. The Veteran reported frequent irritability that affects his work and social interactions. The Veteran reported doing better in a solo work environment. The Veteran also reported mild to moderate impairment in his occupational functioning due to his irritability that leads to conflict with coworkers and supervisors. In December 2016, VA obtained a review PTSD VA examination. Symptoms applicable to his diagnosis included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, persistent distorted cognitions about the cause or consequences of the traumatic events that lead the Veteran to blame himself or others, persistent negative emotional state, markedly diminished interest or participation in significant activities, irritable behavior and angry outbursts, and problems with concentration. The Veteran's mood was observed as congruent, his eye contact and speech rate and rhythm, within normal limits, and his affect was blunt and flattened. The Veteran denied any suicidal or homicidal ideation. Overall, the examiner noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. During an August 2016 VA physician telephone encounter, the Veteran reported difficulty sleeping because he "still thinks about taking someone's life every night." In April 2021, the Veteran obtained a private medical opinion from psychologist J.S., regarding the current severity of the Veteran's PTSD. After reviewing the Veteran's entire claims file and conducting a phone interview, the examiner opined that the severity of the Veteran's PTSD since October 2007 is consistent with the 70 percent rating criteria. On mental status exam, the Veteran's mood was chronically low, and affect was deeply flat. Ideas contributing the Veteran's mood included persistent sense that he can never be forgiven for and will forever be tormented by his experiences in Vietnam. The Veteran reported sleeping 4-5 hours per night, having flashbacks of seeing body bags. The Veteran reported problems with focus and concentration, including watching tv, reading, and performing tasks. The Veteran has experienced highly impaired short-term memory since his 2002 brain aneurysm, but also reported trouble at times with his memory prior to the aneurysm. The examiner noted additional symptoms of repeated disturbing memories, nightmares of in-service stressors, emotional and physical distress as reminded of those experiences, avoidance, loss of interest in things he used to enjoy, feeling estranged, emotional numbness, feeling as though future has been cut short, difficulty falling or staying asleep, irritability or having angry outbursts, difficulty concentrating, hypervigilance, exaggerated startle response, negative/depressed mood, excessive guilt/blame, and aggression. Throughout the period on appeal, the Veteran generally contended that his psychiatric disability is worse than currently rated and has submitted lay statements in support of that contention. The Board finds that the Veteran's assertions are competent, as they are symptoms that he personally experiences and can describe without specialized medical education. The Board also finds his statements to be credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative weight as to the severity of the Veteran's PTSD during the period on appeal. After careful review of the medical and lay evidence of record, the Board finds that by resolving all reasonable doubt in favor of the Veteran, an initial 100 percent rating for PTSD is warranted. Throughout the period on appeal, the Veteran's most severe symptoms of PTSD included homicidal ideation, persistent negative emotional state, danger to others, irritable behavior and angry outbursts, panic attacks, chronic sleep impairment, paranoia, hallucinations, difficulty adapting to stressful circumstances, persistent and exaggerated negative beliefs or expectations, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, hypervigilance, and exaggerated startle response. Initially, the Board notes that in providing this grant, all of the Veteran's mental health symptoms have been attributed to his service-connected PTSD disability as there is a question whether all mental health symptoms can be clearly separate from his service connected and non-service connected mental health disabilities (i.e. non-service connected brain aneurysm disorder). See Mittleider v. West, 11 Vet. App. 181 (1998). Thus, all psychiatric symptoms are considered part of the service-connected PTSD diagnosis. Id. The Board acknowledges that the Veteran has not displayed gross impairment of his thought processes or communication, or inability to perform any activities of daily living; nor has he shown any disorientation to time or place akin to the criteria for a 100 percent rating under the General Rating Formula for Mental Disorders. However, a 100 percent disability rating does not require meeting a checklist of each of the symptoms listed in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Rather, the Board must look to the overall level of symptomatology as it applies to the Veteran's ability to function in occupational and social settings. Thus, regardless of the individual symptoms identified, the Board concludes that the record reflects that the totality of the Veteran's service-connected PTSD symptoms more nearly approximate the criteria for an initial 100 percent disability rating. Resolving all reasonable doubt in the Veteran's favor, an initial 100 percent rating for PTSD is granted. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.