Citation Nr: 22013397 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-05 849 DATE: March 9, 2022 ORDER Entitlement to an evaluation in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) from June 1, 2011, to July 7, 2016, is DENIED. Entitlement to an evaluation in excess of 70 precent for the PTSD disability on and after July 8, 2016, is DENIED. FINDINGS OF FACT 1. From June 1, 2011, to July 7, 2016, the Veteran's service-connected PTSD disability resulted in occupational and social impairment with reduced reliability and productivity. The evidence does not show the Veteran's PTSD resulted in occupational and social impairment, with deficiencies in most areas. 2. On and after July 8, 2016, the Veteran's service-connected PTSD disability resulted in symptoms that produced occupational and social impairment, with deficiencies in most areas. During this claim period, the Veteran's PTSD did not result in total occupational and social impairment. CONCLUSIONS OF LAW 1. From June 1, 2011, to July 7, 2016, the criteria for an evaluation in excess of 50 percent for the service-connected posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. On and after July 8, 2016, the criteria for an evaluation in excess of 70 precent for the PTSD disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from October 1966 to November 1969. The Board notes that it has considered the Veteran's increased rating claims for the PTSD disability on multiple occasions. The Board last considered the increased-rating claims for PTSD in October 2021. At that time, the Board remanded the claims for additional development. In October 2021, the Board also remanded the Veteran's claim for a total disability rating due to the impact of his service-connected disabilities on the opportunity to obtain or maintain substantially gainful employment (TDIU). In December 2021, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ granted the Veteran's claim for TDIU, effective June 1, 2011. This action constitutes a full grant of the benefit sought on appeal. Accordingly, the claim for TDIU is no longer before the Board. INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected PTSD disability. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). As noted above, the Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. 1. Entitlement to an evaluation in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) from June 1, 2011, to July 7, 2016 is denied. Again, in September 2020, the Court granted a Joint Motion for Remand (JMR). At that time, the Court vacated an October 2019 Board decision that denied the claim's listed on the title page. The claims were remanded for the Board to provide an adequate statement of reasons or bases concerning the Veteran's level of suicidal ideation. At this time, the Board observes that PTSD is rated under 38 C.F.R. § 4.130, DC 9411. The relevant criteria authorize a 50 percent rating 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 a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. A 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 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 worklike setting); inability to establish and maintain effective relationships. Id. 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. The rating agency shall 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of (occupational and social) impairment." Id. Prior to August 4, 2014, one factor in evaluating psychiatric disorders was the global assessment of functioning scale (GAF). The scale was meant to represent psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM - IV)). Under DSM-IV, a GAF score between 51 and 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A score of 61 to 70 reflects 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. In October 2011, the Veteran underwent a VA-administered examination that addressed the severity of the service-connected PTSD disability. The examiner noted that the Veteran reported that he had never attempted suicide, but endured occasional suicidal thoughts. The Veteran reported that when those thoughts arose, he would call the suicide hotline. During the examination, the Veteran reported that he did not have homicidal or suicidal thoughts at the time. The examiner opined that Veteran's acquired psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity. The examiner reported a current GAF score of 55. In March 2012, a notation was generated at the Fayetteville VA Medical Center (VAMC). At that time, the provider relayed that the Veteran was not a significant risk for self-harm. In July 2013, a provider at the Fayetteville VAMC indicated the Veteran's PTSD symptoms resulted in a GAF score of 65. In July 2015, the Veteran's treatment records from the Fayetteville VAMC were associated with the claims file. The records addressed the period from May 2011 to July 2015. After review, the Board notes that, during this portion of the claim period, no provider relayed that the Veteran demonstrated or reported homicidal and / or suicidal ideation. In October 2016, the Veteran's treatment records from the Cumberland County VA clinic were associated with the claims file. The records addressed the period from December 2013 to August 2016. After review, the Board notes that, within these medical notations, no provider relayed that the Veteran demonstrated or reported homicidal and/or suicidal ideation. The Board notes that, in Bankhead v. Shulkin, the Court stated,"[s]uicidal ideation appears only in the 70% evaluation criteria. There are no analogues at the lower evaluation levels . . . . there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70% criteria. Thus, the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." 29 Vet. App. 10, 20 (2017). At this time, the Board observes that the Veteran's medically reported GAF scores during the claim period indicate mild to moderate symptoms associated with the service-connected PTSD disability. The Board also observes that, very early in the claim period (October 2011), the Veteran reported occasional suicidal ideation as one of the PTSD symptoms that he endured with his service-connected PTSD disability. However, during the same VA examination, the Veteran reported that the Veteran did not endure suicidal ideation at that time. The Veteran is competent to report feelings that accompany suicidal ideation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, after deliberate review, the medical records do not indicate that the Veteran reported periods of suicidal ideation outside of the October 2011 VA examination report. Despite the previous suicidal ideation report at that time, the Board notes that the October 2011 examiner relayed that the Veteran's service-connected PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. At this time, the Board concludes that the criteria have not been satisfied for a rating in excess of 50 percent for the PTSD disability during this portion of the claim period. During the claim period, examiners reported that the Veteran's GAF score ranged between 55 (moderate) and 65 (mild). During the claim period, a VA examiner relayed that the Veteran's PTSD disability resulted in occupational and social impairment with reduced reliability and productivity. Ultimately, the evidence pervasively favors a finding that the Veteran's service-connected PTSD disability resulted in occupational and social impairment with reduced reliability and productivity during the claim period. The evidence does not pervasively favor a finding that the Veteran's service-connected PTSD disability resulted in occupational and social impairment, with deficiencies in most areas. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable. The Veteran's claim for a rating in excess of 50 percent during this claim period is denied, because the the evidence weighs against his claim. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to an evaluation in excess of 70 precent for the PTSD disability on and after July 8, 2016, is denied. Again, in September 2020, the Court issued a Joint Motion for Remand. The Court remanded the claims for the Board to provide an adequate statement of reasons or bases concerning the Veteran's level of suicidal ideation. Again, PTSD is rated under 38 C.F.R. § 4.130, DC 9411. The relevant criteria authorize a 70 percent rating 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 worklike setting); inability to establish and maintain effective relationships. Id. 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. Id. On July 8, 2016, the Veteran underwent a VA examination that addressed the severity of the service-connected PTSD disability. The examiner noted a diagnosis for PTSD, which resulted in nightmares 2 to 3 nights each week. The examiner relayed that the Veteran's PTSD symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. At that time, the Veteran reported that he had never been psychiatrically hospitalized. The Veteran reported that he had never attempted suicide. The Veteran reported that he periodically had suicidal thoughts, but had not had any for a year. The Veteran reported that during suicidal ideation episodes, he feels that his family would be better off without him. The examiner relayed that the Veteran did not appear to pose a threat of danger to himself or others. In May 2021, the Veteran's treatment records from the Cumberland County VA Clinic were associate with the claims file. The records covered the claim period from March 2019 to May 2021. After review of these records, the Board notes that the Veteran did not claim suicidal ideation during this portion of the claim period. On August 3, 2021, the Veteran underwent a VA examination that considered the severity of the service-connected PTSD disability. The examiner noted a current diagnosis for PTSD. The examiner opined that the Veteran's PTSD disability produced occupational and social impairment with reduced reliability and productivity. The examiner relayed that the Veteran's PTSD was accompanied by the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened effect, disturbances in mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, and an intermittent inability to perform the activities of daily living (to include personal hygiene). The examiner relayed that the Veteran behaved normally, was not hostile or belligerent, and he communicated well. The examiner relayed that the Veteran was not homicidal or suicidal, and he was not a threat to himself or others. The examiner remarked that the suicide risk level was not at elevated, acute risk. In October 2021, the Veteran's treatment records from the Richmond, Durham, and Fayetteville VAMCs were associated with the claims file. After review, the Board notes that no provider indicated that the Veteran demonstrated and/or expressed suicidal ideation during this portion of the claim period. On November 4, 2021, the Veteran underwent a VA examination that considered the severity of the service-connected PTSD disability. The examiner noted a current diagnosis for PTSD. The examiner opined that the Veteran's PTSD disability produced occupational and social impairment with deficiencies in most areas. During the examination, the Veteran denied any current homicidal and/or suicidal ideation. The examiner remarked that the Veteran was not at an elevated, acute risk of suicide. After extensive and deliberate review of the claims file, the Board finds that the evidence of record does not indicate that the Veteran's service-connected PTSD disability resulted in total occupational and social impairment during the claim period. The Veteran's expressed feelings of suicidal ideation, early in the previous claim period, do not equate to an inability for total occupational and social impairment during this claim period, on and after July 8, 2016. Consequently, the Veteran's claim for a rating in excess of 70 percent for this claim period must be denied. The Board notes that the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.