Citation Nr: 22040118 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 12-17 433 DATE: July 13, 2022 ORDER An initial 100 percent rating for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) is granted, subject to the regulations governing payment of monetary awards. FINDING OF FACT For the entire period on appeal, the severity, frequency, and duration of the Veteran's PTSD and MDD symptoms more closely approximated total occupational and social impairment. CONCLUSION OF LAW Throughout the appeal period, the criteria for a 100 percent rating for PTSD and MDD 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 November 1971 to November 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in October 2012. A transcript of the hearing is of record. This matter was previously before the Board in July 2015, August 2018, September 2020, and October 2021 when it was remanded for further development. An initial 100 percent rating for PTSD and MDD is granted. The Veteran generally contends that he is entitled to a rating in excess of 70 percent for his service-connected PTSD and MDD. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities 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. A 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 (1995). Where entitlement to compensation already has 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). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders, which provides the following criteria: A 70 percent rating is warranted when 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; 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; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating 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 or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "a [V]eteran 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." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, 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 Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STAT. MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV). A score of 41 to 50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is appropriate where there are 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 co-workers). A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Although current mental health evaluations no longer use this assessment of functioning under the new DSM-5 criteria, the Veteran's case was originally certified to the Board prior to VA's amendment to the regulations adopting the use of DSM-5, and accordingly, the Veteran's claim is evaluated under the DSM-IV criteria, which does consider GAF scores. See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45,099 (effective Aug. 4, 2014) and March 2014 Form 8. The Board acknowledges that in Golden v. Shulkin, 29 Vet. App. 221 (2018), the United States Court of Appeals for Veterans Claims (Court) concluded that when assigning a psychiatric rating in cases where the DSM-5 applies, the Board should not use evidence of GAF scores, as the DSM-5 rejected use of those scores. However, as explained, the Veteran's claim was pending before August 4, 2014 and DSM-IV criteria are applicable. See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-996 (ug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final) (providing that for all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, DSM-5 will apply). As such, to the extent the record contains any GAF scores, they will be considered. Turning to the evidence in this case, the record reflects that the Veteran received VA treatment for his PTSD and MDD. For example, a February 2009 note reflects that the Veteran reported feeling depressed, a lack of motivation and energy, and increased irritability. He denied any active suicidal and homicidal ideation, noting that he needs to be there for his daughter. In March 2009, the Veteran denied experiencing any delusions and paranoia but endorsed feeling depressed and anxious. He reported working in real estate. He also reported having two children from long-term relationships but denied ever being married. He reported passive suicidal ideation. In April 2009, the Veteran reported living with his girlfriend of nine years and indicated that they had a six-month old daughter together. He reported experiencing nightmares about once per month, a depressed and anxious mood, decreased interest in pleasurable activities, fatigue, diminished ability to concentrate, irritability, excessive worry, and feeling on edge. He denied suicidal and homicidal ideation, hallucinations, delusions, and paranoia. Mental status examination revealed the Veteran was alert and oriented; normal speech; logical and goal-directed thought process without any evidence of looseness of associations or flight of ideas; no evidence of delusions or paranoid ideations; no obsessions; no hallucinations or illusions; appropriate affect; and dysthymic and anxious mood. His GAF score was 70. In December 2010, the Veteran reported feeling depressed. He indicated that he had been experiencing passive suicidal ideation without any plan; poor energy and concentration; feeling guilty, hopeless, and worthless; forgetfulness; nightmares; hypervigilance; easily startled and angered; and panic attacks once per month. He denied experiencing flashbacks and reported that he was not psychotic. Mental status examination revealed the Veteran was appropriately groomed (neat and clean), depressed, and had a flat affect, direct eye contact, cooperative behavior, logical thought process, thought content congruent to reality, normal speech, oriented, no hallucinations, remote memory loss, and fair judgment and insight. Another December 2010 note indicates that the Veteran was not an imminent risk for harm to himself or others and that he was started on Sertraline and Titrate. In a January 2011 note, the Veteran reported living with his girlfriend, that they had been together for 10 years, and that they had a daughter together. He also reported having another daughter from a previous relationship with whom he has regular contact and indicated that he was on good terms with his surviving siblings. He described his family relations as "fair," noting poor communication. He also reported working as a real estate agent and earning very little, noting that he made about $4,000 in the last year. He denied any legal issues. Regarding his leisure and recreational activities, he reported that he enjoyed playing with his daughter, flying kites, walking, and attending Narcotics Anonymous (NA) meetings and activities. In February 2011, the Veteran underwent a VA examination. During the examination, the Veteran reported that, after service, he enrolled in college and majored in business administration but did not complete his college degree. He denied any problems with getting along with his peers and instructors. Regarding his work history, he reported having about 25 jobs since his separation from service, noting that he previously worked in construction, and indicated that he had been self-employed as a realtor for the past 19 years. He reported difficulty getting along with superiors, being fired from many jobs, and conflict with authority figures but denied problems performing his job duties and disciplinary actions. Regarding his family relations, he indicated that he had never been married; was in a 10-year relationship (which he described as "not happy"); that he had two daughters with whom he has "loving" relationships; and that he has friends with whom he is in regular contact. He reported that most of his romantic relationships end when he does not get his way. He also indicated that he occasionally attends family functions and sees his siblings during holidays and other gatherings. The Veteran also reported an inability to get motivated, noting that he starts projects but never finishes. He indicated that his hobbies include listening to community radio and keeping up with political action. He reported enjoying going to meetings, biking, and playing with his daughter. He indicated that he was able to perform activities of daily living without assistance and that he was able to maintain minimum personal hygiene. The examiner indicated that the Veteran's symptoms included sad and depressed mood with episodes of crying or tearfulness; low energy; feelings of guilt or blame; difficulty concentrating; memory problems as he reported he has to write things down in order to remember; recurrent thoughts of death (he reported thoughts of wanting to die but does not take action because of his daughter); intrusive thoughts; nightmares (he reported an incident where he woke up with his daughter in a headlock); feeling distant from others; feeling emotionally numb; an inability to feel happy; problems with irritability and anger; and hypervigilance. He denied social withdrawal or isolation; flashbacks; sleep impairment (although he did report nightmares); feelings of worthlessness or helplessness; a strong startle reaction; excessive worry; panic attacks; phobias or obsessive-compulsive symptoms; and manic or psychotic symptoms. The examiner also indicated that the Veteran's symptoms caused relationship difficulties, substance abuse, and problems with employment. Mental status examination revealed the Veteran was neatly groomed, cooperative, had appropriate eye contact, logical and goal-directed thoughts without evidence of hallucinations or delusions, slow speech, depressed mood with appropriate affect, passive suicidal ideation without plan or intent, no homicidal ideation, oriented, and good judgment. The examiner estimated the Veteran's GAF was 58. In March 2012, the Veteran underwent a private psychological evaluation. In the report, J.G. indicated that the Veteran reported increased feelings of depression, an inability to concentrate and complete tasks, suspiciousness, being guarded, and social isolation. Regarding his mental health treatment history, the Veteran reported that he received treatment at a VA medical center and was admitted on several occasions for symptoms of anxiety, suspiciousness, and paranoid thinking and that he was initially treated with Thorazine and Trilafon but was now prescribed Mirtazapine and Zoloft. Regarding his education and occupational history, the Veteran reported earning two associate's degrees and a history of working in construction, as a mechanic, and in real estate. Regarding family relations, he reported having three children with different women. J.G. indicated that the Veteran experienced a deep sense of pessimism, passive suicidal ideation, constant crying spells, agitation, a sense of worthlessness, extremely poor concentration, anxiety, fear of losing control, fear of dying, feelings of being tense and an inability to relax, and difficulty making decisions. J.G. also indicated that, socially, the Veteran had become recluse and full of anger, rage, and despair. Mental status examination revealed the Veteran was clean and casually dressed; verbalization was clear and coherent; he exhibited guardedness, suspiciousness, and paranoia; he was oriented; he had intact memory; his affect was a mixture of depression and anxiety; and he had decreased attention and concentration, logical and abstract reasoning, and preserved insight and judgment. He denied hallucinations and homicidal ideation but endorsed passive suicidal ideation. His GAF was 49. In October 2012, the Veteran's former spouse submitted a statement in which she indicated that their relationship ended because of the Veteran's psychiatric symptoms. She reported that the Veteran is unable to establish any intimate and close relationships, does not participate in family activities, constantly exhibits anger and impatience, and is constantly in a state of hypervigilance. She also reported that the Veteran experienced nightmares and indicated that the Veteran awakens screaming and hitting anyone that tries to wake him. She indicated that the Veteran was unable to earn consistent income, spends much of his time in the office, is depressed, and is unable to complete tasks. Lastly, she reported that the Veteran's symptoms seemed to be getting worse. In October 2012, D.F. submitted a statement reporting that the Veteran struggled with drugs, had trouble with work and relationships, and experienced nightmares and flashbacks of service. In October 2012, the Veteran also submitted a statement. He stated he was unable to hold meaningful relationships with others, including family, friends, employers, neighbors, romantic partners, and his children and indicated that his symptoms have led to severe depression, suicidal ideation, violence, and drug and alcohol abuse. He also stated that his symptoms escalated and prevented him from participating in activities such as working as a real estate practitioner and maintaining his home. The Veteran also reported experiencing paranoia; anger; fear; suspicion of others; an inability to establish or maintain effective relationships with others, including neighbors, his daughter, and his daughter's mother as he cannot emotionally bond with others; anxiety, panic attacks about three times per week; increased issues with anger and a violent temper, noting that he can become enraged with minimal provocation; reoccurring nightmares which sometimes cause violent reactions (he recounted one time where he woke with his daughter in a headlock and her mother had to intervene); sleep impairment; flashbacks; and reexperiencing of memories. He indicated that he is emotionally numb, constantly sad, constantly on guard, isolates and withdraws from responsibilities and interests, experiences frequent suicidal thoughts because he is displeased with life, excessive worry, and that he is preoccupied with thoughts of using heroine because it's the only thing that brings relief. M.H., a social worker, also submitted a statement in October 2012. In the statement, M.H. indicated that the Veteran seemed increasingly withdrawn the past several years, had expressed feelings of hopelessness and uselessness, was getting more depressed to the extent he has been unable to work, was unable to finish renovating his home, spends more time alone instead of socializing as he used to, does not seem to have energy to complete necessary tasks, had been in several relationships he was unable to sustain, and experienced regular flashbacks and nightmares. Medical records furnished by the Social Security Administration contain a November 2012 statement from the Veteran's former attorney, J.F.A., in which it was noted that the Veteran experiences fatigue, loss of interest, weight loss, nightmares, agitation, decreased energy, feelings of guilt or worthlessness, and difficulty concentrating or thinking. Additionally, it was noted that, while the Veteran has a broker's license, his illness prevents him from working as he has difficulty relating to coworkers, dealing with the public, interacting with supervisors, dealing with work stressors, maintaining attention and concentration, behaving in an emotionally acceptable manner, and relating predictably in social settings. In October 2012, the Veteran testified at a Board hearing. During the hearing, the Veteran testified that he was uncomfortable around others for long periods of time, noting that he does not go to restaurants (unless he goes at off-peak times) nor attend his daughter's school activities. He reported lacking an ability to complete tasks, constantly checking locks, and anger issues (he recounted an incident where he walked into a courtroom and pulled a gun on a judge). He also indicated a belief that he is a danger to himself but reported he does not keep weapons in his home for fear of what he would do to himself or others. He also reported experiencing delusions and suicidal ideation. Additional VA treatment records provide evidence of the Veteran's symptoms. In November 2011, the Veteran reported feeling down because his relationship with his girlfriend had ended, he was asked to move out of her house, and he missed her daughter. He also reported difficulty getting motivated and having low energy. He denied suicidal ideation. An April 2014 record notes depressive symptoms, suicidal thoughts (without plan), impulsive behavior, personality structure issues, and sleep disturbance. A May 2015 note documents increased dysphoria and lack of motivation. It was noted that the Veteran was trying to date but the relationships had not worked out. Noted symptoms included occasional sadness; overwhelming fear; decreased motivation; and avoidance of crowds, noise, and situations that remind him of the 1960s. There was no evidence of mania, hallucinations, or delusions. It was also noted that he reported enjoying Alcoholics Anonymous (AA) meetings and family activities. Mental status examination revealed adequate grooming/hygiene, fairly good eye contact, good communication, normal speech, logical thought process, linear associations, no homicidal ideation, occasional passive suicidal ideation without active plan, good judgment or insight, oriented, adequate attention/concentration, and intact memory. In June 2017, the Veteran described his mood as "up and down," which he related to the loss of some of his friends. He reported that he continues to have passing suicidal thoughts, but denies any intent or plan, and he indicated that he attends AA meetings and talks to his supportive girlfriend to cope with the thoughts. He indicated that he continues to have violent nightmares about three times per week and recalled he recently kicked his girlfriend while asleep. It was noted that he appeared depressed and somewhat withdrawn. In January 2021, a mental status evaluation revealed the Veteran had a pleasant and cooperative attitude; normal speech; appropriate affect congruent with mood; thought process logical, often circumstantial; no delusions, hallucinations, or evidence of psychosis; fair judgment and insight; cognition grossly intact; and that the Veteran was alert and oriented. In March 2018, the Veteran underwent another VA examination. During the examination, he reported living with his girlfriend and that they had been together for three years, noting that their relationship was good. He reported that his oldest daughter recently visited and that he has a 15-year-old daughter with whom he has a close relationship. He indicated that he was somewhat socially isolated and preferred to spend time with his girlfriend at home. He also reported experiencing hyperarousal; avoidance; worsening nightmares; and greater difficulties with emotional attachment. He also reported that he was currently taking two medications, one for sleep and another for anxiety. The examiner indicated that the Veteran's symptoms included depressed mood; anxiety; chronic sleep impairment; impairment of short-and long-term memory; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work. The examiner also noted the Veteran was well-groomed, polite, and friendly, had a euthymic mood, and made appropriate eye contact. The examiner estimated that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. In March 2018, the Veteran also underwent a private evaluation conducted by D.F., a social worker. D.F. noted that the Veteran had never been married as he had problems with relationships and had been unemployed since 2007. The Veteran reported experiencing anxiety, depression, fear, paranoia, frequent nightmares, and an inability to cry. D.F. reported that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once per week, near-continuous panic or depression, chronic sleep impairment, memory loss (for names of close relatives, own occupation, or own name), flattened affect, circumstantial/circumlocutory/stereotyped speech, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work), an inability to establish and maintain effective relationships, and impaired impulse control. D.F. estimated that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. In April 2018, the Veteran underwent another private evaluation with psychologist, C.G.G. Regarding the Veteran's social and family relations, C.G.G. noted that the Veteran had one surviving sibling; that his current girlfriend had three children and that he gets along well with them; that he has regular contact with his friends from NA; and that he lives alone. It was also noted that his symptoms included feeling depressed; lack of motivation, including to shower and complete other activities of daily living; fatigue; nightmares; difficulty sleeping; hypervigilance; and detachment. Mental status examination indicated the Veteran was well-groomed, cooperative, speech was fluent and verbose, mood euthymic to dysphoric with a congruent affect, and logical and coherent thoughts. He denied suicidal and homicidal ideation, hallucinations, and delusions. C.G.G. indicated that the Veteran was unlikely to maintain employment given his condition as his symptoms make it difficult for him to initiate, attend to, and complete tasks and engage with others and his sleep disturbances and fatigue would likely also compromise his attendance and performance at work. In January 2019, the Veteran submitted another private evaluation. On the report, it was noted that the Veteran's symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once per week; near continuous panic or depression; chronic sleep impairment; mild memory loss; impairment of short and long term memory; flattened affect; circumstantial/circulatory/stereotyped speech; speech intermittently illogical, obscene, or irrelevant; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work; suicidal ideation; impaired impulse control; persistent delusions or hallucinations; grossly inappropriate behavior; neglect of personal hygiene; and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). The private evaluator reported a GAF of 60 and that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. In February 2021, the Veteran underwent an additional VA examination. During the examination, the Veteran reported that he had recently experienced the death of two friends and his nephew. He reported that he lived with his girlfriend and that he had experienced increased nightmares; difficulty completing tasks; and increased anger and agitation, noting that it takes two days for his anger to resolve. He reported that he sometimes thinks he would be better off dead but indicated that he would not kill himself due to care for his daughter. He also reported that he had been prescribed Hydroxyzine and Prazosin. The examiner noted that the Veteran's symptoms included depressed mood, mild memory loss, flattened affect, and disturbances of motivation and mood. The examiner also noted that the Veteran presented with depressed mood and flattened affect, had limited eye contact, normal speech, overall presentation was devoid of delusional content, and reality testing was intact. The examiner then estimated that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). After review of the evidence of record, the Board finds the evidence demonstrates that the Veteran's symptomatology during the entire period on appeal most closely reflects symptoms resulting in total occupational and social impairment. The record reflects that the Veteran has total occupational impairment as the evidence of record reflects that he has been unemployed since 2008 as a result of his PTSD symptoms. Specifically, during the February 2011 VA examination the Veteran reported difficulties getting along with superiors, being fired from many jobs, and conflict with authority figures. Additionally, a March 2018 VA examiner, social worker D.F., and a January 2019 VA examiner reported that the Veteran has difficulty establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances (including work). The record also reflects that the Veteran has total social impairment due to his PTSD and MDD. For example, during the October 2012 Board hearing he testified that he does not go to restaurants (unless it's at off-peak times) or attend his daughter's school activities. Additionally, in an October 2012 statement, the Veteran reported isolating and withdrawing from responsibilities, M.H. indicated that the Veteran seemed increasingly withdrawn in an October 2012 statement, and the March 2018 VA examiner indicated that the Veteran was socially isolated. In an October 2012 statement, the Veteran's former spouse also indicated that the Veteran did not participate in family activities, was unable to establish any intimate and close relationships, and that their relationship ended due to his psychiatric symptoms. Furthermore, the record reflects that the Veteran has been in three relationships during the appeal period due to an inability to deal effectively with his PTSD and MDD symptoms. The evidence also shows an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, as reflected in the April 2018 private evaluation by C.G.G. and a January 2019 private evaluation. The evidence also reflects memory loss for names of close relatives, own occupation, or own name, as reflected in the March 2018 evaluation by D.F. (Continued on the next page) In summary, when evaluating the evidence, the Board finds that the Veteran's symptoms more nearly approximate total occupational and social impairment during the entire period on appeal; therefore, the Board resolves any reasonable doubt in the Veteran's favor and concludes that the criteria for the assignment of a 100 percent rating is warranted. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.