Citation Nr: 24011663 Decision Date: 03/12/24 Archive Date: 03/12/24 DOCKET NO. 18-24 786 DATE: March 12, 2024 ORDER An initial 50 percent rating for posttraumatic stress disorder (PTSD) prior to March 3, 2019, is granted. FINDING OF FACT For the period of appeal prior to March 3, 2019, the severity, frequency, and duration of the Veteran's PTSD symptoms approximated that of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial 50 percent rating for PTSD prior to March 3, 2019, 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 in the Army from September 1990 to January 1991, and from February to July 1991. He also had a period of active duty for training (ACDUTRA) from August to December 1987. In May 2022, the Veteran testified at a virtual hearing before the undersigned, and a transcript of that hearing is of record. In February 2023, the Board denied an initial rating in excess of 30 percent for PTSD prior to March 3, 2019, and granted a 70 percent rating therefrom. The Veteran appealed the issue of an increased rating for PTSD prior to March 3, 2019, to the United States Court of Appeals for Veterans Claims (Court). In September 2023, the Court granted a Joint Motion for Partial Remand (JMPR), remanding the issue to the Board. 1. Increased rating for PTSD prior to March 3, 2019. The Veteran's PTSD is assigned an initial 30 percent rating prior to March 3, 2019, under Diagnostic Code 9411. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The rating criteria for rating mental disorders, including major depressive disorder, reads as follows: a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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 50 percent rating requires 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 30 percent rating requires 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), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. The Board notes that the DSM-5 states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court's holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores; however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board will not afford any GAF scores mentioned in the record any probative value in cases where the DSM-5 applies. See also Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. February 23, 2018) (finding that the Board provided an inadequate statement of its reasons or bases for relying on GAF scores in its decision when the appeal was certified after August 4, 2014, and the DSM-5 applied to the claim). In this case, the Veteran's appeal was certified to the Board in September 2019. As such, the DSM-5 applies, and the Board will not afford GAF scores any probative value. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. VA treatment records indicate that in September 2015, the Veteran reported symptoms of impaired sleep, having dreams, waking up sweating thinking about an in-service incident, anger, intrusive thoughts, isolation, and low energy. He denied having suicidal or homicidal ideation, depressive ruminations, crying spells, guilt feelings, helplessness/hopelessness, and hallucinations. The Veteran also denied a history of psychiatric treatment or medications. He was assessed as having rule-out PTSD and depression with rule-out recurrent major depressive disorder (MDD), and prescribes Zoloft and trazodone. In October 2015, he was started on prazosin for nightmares and sleep disruption, and started individual psychotherapy. A few weeks later, the Veteran reported that the prazosin caused him to have headaches and severe thrashing in his sleep, so it was discontinued, and he was started on hydroxyzine. In December 2015, the Veteran reported that his irritability "goes and comes," his mood was okay if he was well rested, and he continued to have some discord with his wife. He denied having any suicidal or homicidal ideation, mania, and delusions. In a February 2016 VA medication management appointment, the Veteran reported some improvement in mood and energy with bupropion, and continued to endorse poor sleep and sleep disturbances. He was noted to be neatly and appropriately dressed and groomed; he was calm, cooperative, and engaging; and denied having suicidal or homicidal ideation. In a May 2016 letter, the Veteran's VA psychiatric pharmacist noted that that the Veteran had "certain limitations" imposed by his emotional mental health, and to alleviate those challenges and enhance his day-to-day functionality, he should be allowed to attend weekly therapy sessions. In a November 2016 VA PTSD examination, the Veteran reported that he was currently living with his second wife (of three years) and their children, and he had three grown children from his first marriage. He stated that his current marriage was rocky, and he got irritable quite a bit. His relationship with his children in the home was good, but his relationships with his adult children were "a work in progress." He had fairly regular contact with his family, but had not had any close friends since before the military. The Veteran's daily activities included watching TV and isolating from his family 70 percent of the time, often eating meals by himself. He had been a teacher since 2002, and was currently a high school computer and business teacher. The Veteran denied having had any counseling, and was currently taking trazodone and bupropion. On examination, the Veteran's behavior was within normal limits, and he was alert and oriented in all spheres. There was no suicidal or homicidal ideation. He was capable of managing his financial affairs. The examiner indicated that the Veteran's PTSD symptoms included depressed mood, anxiety, and chronic sleep impairment, which caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. In November 2016, the Veteran had a VA individual therapy intake session. He reported that he was there to address increased anger and difficulty within his marriage because of his mood changes. The Veteran's daughter had recently informed him that she was in counseling to address her feelings of being abandoned by him. The Veteran endorsed symptoms of recurrent intrusive thoughts, dreams of the in-service event, nightmares as often as 2-3 times per week, low tolerance for people doing things that made him angry, impaired sleep, irritability, and low energy level. He used to enjoy fishing, but had not gone in a long time due to his knees, and liked watching nature shows on TV. He denied having depressive ruminations, crying spells, guilt feelings, helplessness/hopelessness, suicidal or homicidal ideation, and hallucinations. In December 2016, the Veteran started attending a PTSD education group. In February 2017, the Veteran was seen at VA for treatment planning following successful completion of the PTSD education group. He expressed desire to attend anger management group, which he subsequently started the next month, and noted that he continued to have nightmares, anger, avoidance of other people, and low energy level. His strengths/abilities were noted to include good hygiene and having hope. In a May 2017 medication management appointment, the Veteran denied having any acute concerns, and continued to endorse low mood and poor sleep. He was continued on bupropion and trazodone and started on diphenhydramine for sleep and itching. In August 2017, the Veteran reported that he continued to isolate and avoid interacting with others. His friends asked him to go on trips and he declined. In March 2018, the Veteran was noted to be taking bupropion, trazodone, diphenhydramine, and fluoxetine. He stated that he continued to have impaired sleep. The treating psychiatric pharmacist indicated that the Veteran was neatly and appropriately dressed, with adequate grooming and hygiene; calm, cooperative, and engaging; normal rate, tone, and fluency of speech; dysthymic mood; full range and appropriate affect; and linear thought process and coherent, logical, goal-orient thought content. He denied suicidal and homicidal ideation. In June and July 2018, the Veteran denied having depression, hallucinations, memory loss, insomnia, suicidal ideation, and homicidal ideation. The Veteran had another VA PTSD examination in October 2018. He indicated that he had been married to his second wife for six years and they had a "rocky relationship." He kept in touch with his adult children from his first marriage "mostly by a few phone calls every month," and had limited contact with his siblings. The Veteran stated that he used to like going to the gym and fishing, but he did not do those activities anymore and just sat in his backyard. He continued to be employed fulltime as a computer teacher, which he had been doing for 16 years. On examination, the Veteran was alert and oriented, had adequate hygiene, and appeared to have normal thought processes and communication skills. He was cooperative, maintained good eye contact, and exhibited no inappropriate behavior. He denied having any suicidal or homicidal ideation, plan, or intent, and appeared capable of maintaining his activities of daily living and financial affairs. The examiner noted that a test of response bias specifically related to PTSD symptoms was administered to the Veteran, and the Veteran's scores were consistent with people diagnosed with PTSD, but were also consistent with performances of disability claimants simulating symptoms of PTSD. As such, there was reason to suspect symptom exaggeration and a response style indicative of attempts to portray himself as worse off than he actually was with regard to his PTSD symptoms. The examiner concluded that the Veteran did not have a mental disorder diagnosis. A November 2018 note indicates that the Veteran disagreed with the examination report and did not think it was an adequate representation of his distress. In November 2018, the Veteran requested re-enrollment in VA anger management classes, which he started later that month. The Veteran also started seeing a private psychiatrist, Dr. G.H., in November 2018. In December 2018, he submitted a private evaluation by Dr. G.H., who indicated that the Veteran's PTSD caused symptoms of nightmares, easily startled, excess checking of surroundings, flashbacks, and recurrent memories of traumatic events; and his depression caused sadness, lack of motivation, poor energy, poor concentration, and poor appetite. The Veteran had been married twice, had four children, and was unable to work due to the chronicity and severity of his PTSD and depression because he was unable to be around others for extended periods of time. He was noted to make poor eye contact and avoid eye contact, and he had monotone speech. Other symptoms included anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting ot stressful circumstances, inability to establish and maintain effective relationships, spatial disorientation, and disorientation to time or place. Dr. G.H. indicated that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas. The Veteran continued to be treated by Dr. G.H. throughout the period of appeal. The Board finds that for this period of appeal, prior to March 3, 2019, an increased rating of 50 percent is warranted for the Veteran's PTSD. The Veteran's symptoms included impaired sleep including nightmares and poor sleep, anger and irritability, depression, anxiety, isolation, and low energy. Although he was married and had relationships with his children during this period of appeal, those relationships were described as "rocky" and he reported that his daughter was in counseling to address feelings of being abandoned by the Veteran. Affording the Veteran all benefit of all reasonable doubt, and as noted in the September 2023 JMPR, his symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity to warrant a 50 percent rating. The Board concludes that the Veteran's symptoms did not more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood to warrant a higher 70 percent evaluation at any point during the period of appeal. As noted above, the criteria for a 70 percent rating includes symptoms such 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. 38 C.F.R. § 4.130. In this case, the Veteran has not been found to have 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); or neglect of personal appearance and hygiene. Furthermore, the Veteran remained married and maintained at least some relationships with his children, and he worked fulltime as a high school computer teacher during this period of appeal. The Board acknowledges that Dr. G.H. indicated that the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas, and included symptoms of inability to establish and maintain effective relationships, spatial disorientation, and disorientation to time or place. The Board finds, however, that the December 2018 private evaluation by Dr. G.H. has lower probative value, and is outweighed by, the other medical evidence of record because it appears to be based on an incorrect premise that the Veteran was not employed, which is inconsistent with the evidence of record, including Veteran's later statement that he worked until April 2022. As such, the Board finds that the Veteran's fulltime employment, marital status, and relationships with his children do not rise to the severity level of "inability to establish and maintain effective relationships." The Board also finds that one report of spatial disorientation and disorientation to time or place is outweighed by more than seven years' worth of medical evidence, including four VA examinations between 2016 and 2022 and another private evaluation submitted in December 2019, which are silent for mention of spatial disorientation. See Mauerhan v. Principi, at 442 (2002) (finding that symptoms contained in rating schedule criteria 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."); Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Accordingly, the Board finds that the Veteran's symptoms were not of such frequency, severity, and duration that they resulted in occupational and social impairment with deficiencies in most areas to warrant a higher 70 percent evaluation at any point during the period of appeal prior to March 3, 2019. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Nelson 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.