Citation Nr: 21042431 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 12-33 326 DATE: July 13, 2021 ORDER Entitlement to an increased initial rating of 70 percent for posttraumatic stress disorder (PTSD) from December 17, 2010 to July 21, 2017 is granted. FINDING OF FACT The Veteran's PTSD was manifested by occupational and social impairment in most areas; however, total occupational and social impairment was not demonstrated. CONCLUSION OF LAW The criteria for an increased initial rating of 70 percent, but not higher, for PTSD from December 17, 2010 to July 21, 2017 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 September 1966 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2011 and November 2011 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). As pertinent to this appeal, on December 14, 2010, the Veteran sought to reopen his previously denied claim for service connection for PTSD. In the July 2011 rating decision on appeal, the AOJ granted service connection for PTSD and assigned an initial 30 percent rating effective December 17, 2010. The effective date appears to have been based on a subsequently filed application for benefits received by the AOJ on December 17, 2010. The Board notes, however, that under VA regulation, monetary benefits are not effective until the first day of the first month following the rating. Therefore, the difference between the two dates in December 2010 is immaterial. 38 C.F.R. § 3.31. While the matter was pending, the RO issued a November 2011 rating decision that increased the disability rating to 50 percent effective December 17, 2010. In a subsequent February 2018 rating decision, the RO increased the rating for PTSD to 70 percent effective July 21, 2017. The Veteran continues his appeal as to the initial 50 percent rating assigned prior to July 21, 2017, contending that he is entitled to a 70 percent rating throughout the period on appeal. As he stated during the October 2018 hearing that he is satisfied with the 70 percent rating assigned as of July 21, 2017, the Board is limiting its adjudication to the initial rating assigned prior to that date. The Veteran's claim of entitlement to an initial disability rating in excess of 50 percent for PTSD for the period prior to July 21, 2017, was denied in a July 2019 Board decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Memorandum Decision, the Court vacated the July 2019 Board decision and remanded the matter for action consistent with the Memorandum Decision. In September 2015, the Veteran testified at a Video Conference Board Hearing. He then testified at a second Board hearing in October 2018. Both presiding Veterans Law Judges (VLJs) are participating in the decision on appeal. In correspondence dated April 2019, the Veteran waived his right to testify before the third VLJ deciding the case. See Arneson v. Shinseki, 24 Vet. App. 379 (2011) (a veteran must be provided the opportunity to testify before all members of a Board panel deciding the case). Entitlement to an Increased Initial Rating of 70 Percent for PTSD from December 17, 2010 to July 21, 2017 Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is warranted for PTSD 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; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is objective evidence demonstrating 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, or 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; and the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when 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 and place; and memory loss for names of close relatives, own occupation, or own name. The symptoms listed in Diagnostic Code 9411 are not intended to 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Considering all relevant evidence, the Board finds that an initial disability rating of 70 percent, but not higher, for the Veteran's service-connected PTSD is warranted for the period from December 17, 2010 to July 21, 2017. The Veteran exhibited occupational and social impairment in most areas. Upon examination in January 2011, the Veteran suffered from the following symptoms: (1) "clearly visual" flashbacks which cause him considerable distress; (2) intrusive thoughts and recollections of Vietnam that are difficult to control and accompanied by anxiety, shortness of breath, and tightness in his chest; (3) feeling of guilt; (4) disruption due to smells and noises which remind him of his experiences while in service; and (5) quick anger outbursts which occur primarily when he feels stress. The Veteran reported concern regarding the impact of these symptoms on his quality of life and expressed difficulty in maintaining a quality of life which he would prefer to maintain. Although employed, the Veteran reported that he struggled to cope with his symptoms. The Veteran reported that he is been married for 30 years and has children. He indicated that he had good support from his family. The Veteran reported that he participated in an inpatient PTSD program at the Lyons VA Health Care Center in the 1990's, and that he was currently being treated for PTSD in individual therapy every 2 weeks and has been for many years. See January 2011 VA examination report. In support of his claim, the Veteran submitted a March 2011 Psychological Evaluation/Treatment Summary from his treating psychologist, Dr. S.E. Dr. S.E. explained that the Veteran began treatment with him in the early 1980's, in a combat Veterans group that was sponsored by Vietnam Veterans Leadership Program. When the program terminated, the Veteran continued in group and individual psychotherapy, and in recent years, the Veteran has participated in individual therapy only. Dr. S.E. stated that the Veteran served three active duty tours in Vietnam. He stated the Veteran felt with each tour, his ability to cope with returning to the U.S. in peacetime military was degraded. Dr. S.E. stated that after the Veteran returned from Vietnam and discharged from the service, he had great difficulty fitting in to civilian life. He had a number of different jobs many of which were marginal and/or self-employed since it suited him to work alone or with one other person in an uncontrolled unsupervised manner. He noted the Veteran's report that he had recently taken a job in the maintenance department at the local county public works department which he attained through the intervention of fellow Veteran friends and his Veterans status. Dr. S.E. indicated the Veteran was married, and a father of three. He noted the Veteran's description of his marriage as being "problematic" and that both he and his wife have participated in marital therapy. Reference was made to the Veteran's report that he is distant from family members and has over the years developed a more interpersonally abrasive and rigid stance, and that he finds it difficult to participate in family activities. The Veteran reported limited interactions with peers, and withdrawal from former involvement in Veteran's activities. Dr. S.E. noted the Veteran was hospitalized in the 1990's at the Lyons VA facility on an emergency basis for approximately 10 weeks, after which he returned to individual psychotherapy. He said the Veteran's clinical presentation had evolved over the years. He reported that, initially, the Veteran's presentation focused on his anger and rage at the experiences he had in the military and the treatment he received upon returning home and that as therapy progressed, this anger became submerged as he began to focus on and attempt to cope with day to day stressors. He indicated the Veteran's attempts at psychopharmacological treatment have been unsuccessful. Dr. S.E. stated the Veteran works diligently to avoid recall of anything that might be reminiscent of his military experiences and when confronted with recall of these experiences and the situations in the present day, he becomes increasingly hostile and angry. Because of his personality style, Dr. S.E. stated the Veteran tends to then deny this anger and hostility which manifests itself as a generalized sense of unrest, discomfort, and avoidance behavior. Dr. S.E. noted the Veteran's wife described the Veteran's interpersonal life as persistent avoidance and non-participation. Dr. S.E. observed that as the Veteran's PTSD symptoms, specifically his generalized level of increased agitation, become more predominant, his ability to be frustrated and angry has impacted even the limited relationships he has. In addition, Dr. S.E. noted the Veteran experiences a generalized sense of increased arousal, difficulty sleeping, poor concentration under stress, low frustration tolerance, and a generally depressed mood. Dr. S.E. concluded that in his professional opinion, the Veteran experienced a chronic severe form of PTSD as a direct result of his participation in the Vietnam War, that his PTSD symptoms have been present since his return from service, and it was strongly recommended that the Veteran continue in individual psychotherapy. In a July 2011 Psychological Treatment Update, Dr. S.E. explained that consistent in the Veteran's employment history, is his inability to deal with authority and the rules imposed on him by his employer. He stated the Veteran has had difficulty adjusting to the organization and restriction of government employment. He noted the Veteran's report that his marriage is highly problematic and that he finds it difficult participating in family activities. Dr. S.E. again stated the Veteran's clinical presentation has evolved over the years. He stated that initially the Veteran's anger and rage was overt and broke through on an almost daily basis causing difficulty at home and work, and that more recently he has gained more control of these uncontrollable outbursts. However, in response, the Veteran has become more morose, withdrawn, and isolated. On VA examination in July 2011, the Veteran endorsed distressing ongoing memories of his experiences which has made it difficult for him to maintain a good quality-of-life. The Veteran described flashbacks, intrusive thoughts of his experiences, and difficulty with loud noises and smells that are reminders of his Vietnam experience. There is also guilt associated with having survived when other soldiers were lost in combat, and avoidance of current military news events because these events prompt painful reminders of his own experience. The examiner noted the Veteran's experience remains stressful despite it having occurred decades ago. He has anxiety and anger issues and the Veteran has received mental health interventions for many decades during which time his symptoms were addressed and strategies for coping were considered. In a September 2012 Psychological Treatment Summary from Dr. S.E., he stated that on each returning tour to Vietnam, the Veteran's condition worsened but at that time he was unaware of that decay. He restated that after discharge from the military, the Veteran had great difficulty adjusting to civilian life, and that he had a number of marginal jobs, on and off the books for several years, and periods of self-employment. Dr. S.E. reiterated that the Veteran's most successful employment occurred where supervision was the least and he was able to work alone. Dr. S.E. added that while the Veteran had ongoing difficulties functioning under the weight of public sector employment, he fought to maintain the job since the income is critical for his family's survival. Although the Veteran is in a long-term marriage, Dr. S.E. emphasized that the marriage was highly problematic and that during the Veteran's course of treatment, he has entered into marital counseling, albeit unsuccessfully. He stated that in place of the Veteran's anger, which he described as "now just below the surface," is a more morose, withdrawn, and isolated pessimism. Dr. S.E. stated that this avoidance behavior extends to most areas of his life and he spends time avoiding going home, avoiding participating in activities, and, in general, avoiding being a productive participant in most areas in his life. He stated the Veteran also showed a level of generally increased agitation manifested as low frustration tolerance, anger, outbursts of rage, and difficulty concentrating under stress. Dr. S.E. concluded that Veteran is experiencing a chronic/severe form of PTSD and that based upon the Veteran's history, the severity of symptoms, and its impact in all areas of his life. He said the Veteran's PTSD has had a serious and debilitating impact on his ability to form close intimate relationships and develop productive relationships with his children. Vocationally, it has caused severe vocational inhibition resulting, after decades of experience, with him having entry level positions in his mid-sixties. In September 2015, the Veteran testified that he has problems with a lot of his coworkers, supervisors, and department heads. He reported that he had not been officially disciplined; however, every couple of months, he said he had to speak with his supervisors about issues involving them and his coworkers. He described that his idea of a good time as disappearing into the woods with his dog. He stated that he has been married 40 years, but that problems in the marriage occur every couple of months. He added that he had been occasionally asked to leave the house, mainly "just being really cold at times." The Veteran said that his children "will tell you [he is] quick to anger," and the children "always were a little concerned why I snapped so fast when they were little." The Veteran testified that he and his wife have separated twice for protracted and semi-protracted periods of time. He testified that a separation occurred as recently as a year and a half ago and lasted a couple of months. The Veteran described getting along with children "for the most part," "as we've aged." He testified that he sees one son regularly, who works for the county. He testified his two other children live out of state and that "distance helps." He testified that he has three grandchildren and that, "I'm on my best behavior when they're around." He said he had has no friends. He explained that, "I have this entire thing locked in my head since the war that when you don't do your job people die" and that "I've never been able to shake it." He added that at work, "they've tried to partner me up with three different people and it hasn't worked" "so I'm usually by myself all the time." In October 2018, the Veteran testified that he continued to go twice a month for counseling, and that his PTSD has fluctuated since December 2010. He testified that his PTSD "comes and goes and it depends on a lot of different issues." His representative clarified stated that the Veteran's PTSD didn't get worse in 2017. Instead, it was at that level when he first met the Veteran in the early 80s, less than 10 years after he came home from Vietnam. The Board determines that the evidence in the Veteran's medical treatment records reflect that the Veteran's PTSD symptoms most approximate occupational and social impairment with deficiencies in most areas approximating an increased initial rating of 70 percent, for PTSD from December 17, 2010 to July 21, 2017. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. This is particularly so when resolving reasonable doubt in his favor. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Global Assessment of Functioning (GAF) scores are included in the Veteran's medical records. His GAF score ranged between 37 and 65. See, respectively, September 2012 treatment note from Dr. S.E. and the January 2011 VA examination. A GAF score of 37 is indicative of major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., avoiding friends, neglecting family, and unable to work). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). By contrast, a GAF of 65is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Id. However, the Board has decided not consider GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities). The fact that the DSM-5 eliminated the use of GAF scores due its lack of clarity and questionable psychometrics in routine practice is concerning. Indeed, the Board finds the private treatment records from Dr. S.E. to be more probative considering his longterm treatment, observation, and understanding of the Veteran's mental health condition. The medical evidence from Dr. S.E. indicates the Veteran exhibited severe PTSD symptoms such difficulty in adapting to stressful circumstances (including work or a worklike setting) and an inability to establish and maintain effective relationships. Dr. S.E. reports that while the Veteran had ongoing difficulties functioning under the weight of public sector employment, he fought to maintain his job so as to provide for his family. Even though he has been able to maintain employment, his difficulties in the workplace have resulted in his having entry level positions in his mid-sixties. While the Veteran remained married, the marriage has been described as highly problematic with the Veteran being asked to leave the house for various periods of separation. Though the Veteran reported a relationship with his children, he explains that it is now better "as we've aged" and that "distance helps." Of note, the Veteran testified that his children would say that he was quick to become angry which caused them concern when they were younger. The Veteran's anger is described by Dr. S.E. as "now just below the surface." Dr. S.E. opined that based upon the Veteran's history, the severity of symptoms, and its impact in all areas of his life, the Veteran's PTSD has had a serious and debilitating impact on his ability to form close intimate relationships, develop productive relationships with his children, and has caused severe vocational inhibition. The Veteran maintained that for the duration of this appeal, his PTSD "comes and goes and it depends on a lot of different issues." Moreover, while outside of the period on appeal, there is evidence in the Veteran's mental health history of a past suicidal ideation in the late 1970's. See October 1996 discharge summary. While an increased initial rating to 70 percent is warranted, a further increase to 100 percent for total occupational and social impairment is not warranted at any time during the appeal period. The Board acknowledges the Veteran has expressly limited his appeal, as indicated above, nevertheless, the evidence does not support that the Veteran's PTSD causes total occupational and social impairment. A disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include posing a "persistent" threat of danger to others, "gross impairment in thought processes or communication," not knowing one's own name, the names of close relatives, or one's occupation, and an inability to perform activities of daily living, including maintenance of even minimal personal hygiene. The Board determines the Veteran has not exhibited such symptoms. The evidence shows that the Veteran has maintained his marriage and employment, his hygiene, he has complete daily functions, logical thought processes, and is without manifestations of mania or psychosis. Therefore, after resolving reasonable doubt in the Veteran's favor, the Board finds his PTSD warrants an initial increased 70 percent rating, but not higher, for the period from December 17, 2010 to July 21, 2017. See 38 U.S.C. § 5017 (b); 38 C.F.R. §§ 3.102, 4.3. Such determination is based on a holistic analysis of the totality of the medical evidence. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.