Citation Nr: 24018043 Decision Date: 04/26/24 Archive Date: 04/26/24 DOCKET NO. 15-24 135 DATE: April 26, 2024 ORDER Entitlement to an initial disability rating of 70 percent for service-connected posttraumatic stress disorder (PTSD) from May 1, 2014, to June 13, 2016, is granted. FINDING OF FACT For the period from May 1, 2014, to June 13, 2016, the impairment from the Veteran's PTSD more closely approximates deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial evaluation of 70 percent for PTSD for the period from May 1, 2014, to June 13, 2016, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2000 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2018 decision, the Board remanded the appeal for further evidentiary development. The appeal was denied by the Board in an October 2020 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order granting a June 2021 Joint Motion for Partial Remand, the Court partially vacated the Board's October 2020 decision as to the denial of an initial rating in excess of 30 percent from May 1, 2014, to June 13, 2016, and remanded the claim for further action in compliance with the directives specified in the Joint Motion. In a November 2021 decision, the Board granted a 50 percent initial disability rating, but no higher, from May 1, 2014, to June 13, 2016. The Veteran thereafter appealed to the Court and, in a September 2022, Order granting an August 2022 Joint Motion for Partial Remand, the Court vacated the Board's August 2021 denial of entitlement to an initial rating in excess of 50 percent from May 1, 2014, to June 13, 2016, and remanded the matter for further action in compliance with the directives specified in the Joint Motion. In a December 2022 decision, the Board denied entitlement to an initial disability rating in excess of 50 percent for PTSD for the period from May 1, 2014, to June 13, 2016. The Veteran again appealed to the Court and in a January 2024, Order granting a January 2024 Joint Motion for Remand, the Court vacated the Board's December 2022 denial of entitlement to an initial rating in excess of 50 percent from May 1, 2014, to June 13, 2016, and remanded the matter for further action in compliance with the directives specified in the Joint Motion. Higher Initial Rating The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. According to the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance, i.e., nearly equal and does not require the evidence to be in exact equipoise. Id. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2021). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his PTSD disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. As indicated above, the issue on appeal has been limited to whether a higher initial disability rating in excess of 50 percent for PTSD is warranted from May 1, 2014, to June 13, 2016. The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a noncompensable rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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; and difficulty in establishing and maintaining effective work and social relationships. 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned 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; memory loss for names of close relatives, own occupation, or own name. Id. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the 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. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). According to the DSM-IV, GAF scores ranging between 61 to 70 reflect 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, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect more 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]. Scores ranging from 41 to 50 reflect 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]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication [e.g., speech is at times illogical, obscure, or irrelevant] or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood [e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school]. VA has changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). As the Veteran's case was certified to the Board after August 4, 2014, DSM-5 applies, and GAF scores are no longer used in evaluation of psychiatric disorder. Id. However, the examiner's discussion of symptoms associated with any assigned score would still be useful in evaluation of psychiatric disabilities. Factual Background and Analysis The Veteran was afforded a VA examination in August 2014 at which time the examiner confirmed a diagnosis of PTSD, which he characterized as "mild." The examiner reported that the Veteran's "mental condition has been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication." The Veteran reported that he lived with his wife of one year and that he had a son from a previously relationship. The Veteran indicated that he had ongoing contact with his son and was able to visit him on alternating weekends, holidays, and during the summer. The Veteran described the quality of family and marital life as favorable. He identified his support system as including his wife, sister, nephew, and a few friends. He reported that he enjoyed being outdoors and being physically active when possible. He stated that "he has significant avoidance tendencies, if given a choice, [he will] keep to himself. He feels most comfortable with other veterans and visits with them [at] the Vet Center and Clear Path." The examiner also noted that the Veteran was not actively participating in any psychotherapy but did attend weekly Alcoholics Anonymous meetings. The Veteran had his current job since 2006 as a delivery driver and worked approximately 50 hours per week and found "this job fitting for his emotional needs (i.e., job is self-paced, Veteran can work independently, and he can avoid people and unnecessary interpersonal stress)." The Veteran endorsed depressed mood, anxiety, variable mood swings he can become angry with subtle provocation, panic episodes, sleep disturbance, nightmares, infrequent flashbacks, ongoing triggers, avoidance, distractibility, mildly impaired psychosocial functioning, social anxiety and difficulty being comfortable around people, problems with tolerating crowds, problems with direct emotional expression, episodic irritability over daily trivial stressors, jumpy and on edge, and hypervigilance. The Veteran additionally reported markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior and angry outbursts, sleep disturbance, depressed mood, anxiety, chronic sleep impairment, and disturbance of motivation and mood. The Veteran was neatly groomed and casually dressed. His speech was normal in rate, tone, and volume. His mood with euthymic with full range. The Veteran's affect was congruent/consistent. His thought process was logical and goal-directed, and his thought content was normal. He denied suicidal and homicidal ideation. He also denied auditory and visual hallucinations. Insight was good and judgment was intact. His impulse control was noted to be good. The examiner noted that transient stress periodically exacerbated symptoms. The examiner opined, "[a]t the time of this examination, the Veteran was found to be low risk, stable, and generally functioning adequately in all areas." VA treatment records dated in November 2014 and December 2014 noted that the Veteran's main concern was anxiety. He reported that his panic attacks occurred a couple of times a month. He was hypervigilant, constantly scanning, and was startled easily. The Veteran reported that he continued to avoid Walmart, Wegman's, crowds, and loud noises. The Veteran "stated that, in times of high anxiety, he has heard explosive gun fire and whispering that is incoherent. He denies visual hallucinations." The Veteran reported that he continued to be busy with work. His relationship with his wife was going well and she was very supportive. He denied suicidal and homicidal ideation. He reported that, once a month, since he returned from the Army, he could function well on three to four hours of sleep for two to three days. He indicated that, "[d]uring this time, he is not distractible, he is more irritable, denies grandiosity, has racing thoughts, increased goal-oriented activity, is not tired, [and] denies impulsivity." The treatment provider noted that there is no evidence of delusions or paranoia. In VA treatment records dated in January 2015, the Veteran's treatment provider indicated that the Veteran's "biggest issue right now is feeling like a hermit and becoming very frustrated easily when dealing with people." VA treatment records dated February 2015 noted that the Veteran exhibited no evidence of hallucinations or delusions. He was well-oriented, and his memory and concentration were intact. His mood was dysphoric with congruent somewhat restricted affect. The Veteran reported that he was a delivery driver and was also attending college where he was pursuing a degree in Human Community Service and Veterans Counseling Studies. Notably, subsequent records reflect that the Veteran successfully earned his degree in August 2016. In his February 2015 VA Form 9, the Veteran endorsed panic attacks once a week and sometimes more frequent. He stated, "I have extreme avoidance issues; the only type of work I can do is where I am in a solitary setting where I do not have to interact with other people, such as my current job as a truck driver." He continued, "I use maximum amount of paid time off/sick leave to call into work as I do not want to get out of bed." He additionally reported that he has "no motivation in completing tasks. I also avoid all social setting[s] which cause additional stress on my family relationships." He described himself as highly agitated and quickly angered with outbursts such as punching holes in walls. In his May 2015 notice of disagreement (NOD), the Veteran stated that he had extreme avoidance issues of all social settings. He indicated that he experienced extreme panic attacks and an inability to interact with others which he said increased the stresses in his family relationships. VA treatment records dated in May 2015 noted that the Veteran "arrived on time for his scheduled session, casually dressed and appropriately groomed. Orientation, eye contact, speech, memory, and attention/concentration were all intact." The treatment provider stated that there was "[n]o evidence of formal thought disorder. Mood was dysphoric with moderately agitated affect secondary to work-related stress." There was no report of suicidal/homicidal ideation, and no other risk issues were noted. The treatment provider noted that the Veteran "is considering vocational support as his current work situation is becoming intolerable." In a June 2015 mental health diagnostic study note, the Veteran stated that his PTSD symptoms have made it "very difficult" for him to do his work. A July 2015 behavioral health note shows that the Veteran experienced a panic attack at work after being triggered when a tire blew out while he was delivering goods. In July 2015, the Veteran also reported having little interest in doing things more than half the time, as well as feeling down, depressed, or hopeless for several days over a two-week period. He further indicated that he had trouble concentrating on this nearly every day. A separate July 2015 VA treatment record documented the Veteran's report of having a panic attack when working that caused him to be distressed and irritable and unable to complete his work tasks. An August 2015 outpatient note reflects that the Veteran reported that he continued to struggle with anxiety and sought out medication to reduce his symptomatology, as his anxiety was interfering with his ability to function at work. Outpatient records dating from October 2015 indicated that the Veteran was let go from his job as a truck driver after requesting an accomodation, which was denied, and then neglecting to renew his commercial driver's license. He checked himself into a psychiatric resident program following his being fired and reported that he experienced significant anger at the event. Subsequent treatment records show that the Veteran renewed his dedication to attending regular therapy sessions, although he remained reluctant to utilize psychotherapeutic drugs during this time. In support of his claim, the Veteran submitted a November 2015 letter in which he resigned from his delivery driver position. He explained that the current manager used bullying and verbal abuse as a management style. The Veteran stated, "[d]ue to the limitations and impairments of my disability, it has become extremely difficult for me to sustain healthy interactions with members of the management team as such and have forced my hand to take this action." As noted by the Parties in the January 2024 Joint Motion for Remand, a November 2015 Behavioral Health Outpatient Progress Note indicated that the Veteran reported losing his job because of "irritability difficulties getting along with his boss". The progress note also indicated that the Veteran "can tolerate working by himself, but things become more strained as his boss was getting more involved with his work and interacting with him more". During a December 2015 evaluation, the Veteran noted that he was experiencing less PTSD symptomatology, to include flashbacks and outbursts of anger, which he attributed to the fact that he was not working. In a December 2015 vocational rehabilitation note, the Veteran reported, "I have worked with my PTSD being out of control. I am able to work. Since being in treatment, I am able to make good decisions about the type of job that [is] good for me and what is not. In my last job, it was the supervisor's style of bullying people that I do not like." VA treatment records dated in February 2016 noted the Veteran's "ongoing PTSD symptoms including avoidance, hypervigilance, nightmares, and flashbacks. He reports his sleep is poor, usually takes a long time to fall asleep and easily wakes up." In a May 2016 VA vocational rehabilitation counseling record, the counselor noted that the Veteran was unemployed and determined that his service-connected PTSD and other disabilities presented a serious employment handicap. As noted by the Parties in the January 2024 Joint Motion for Remand, in a December 2022 Brief, the Veteran raised the issue of his 2015 termination of employment being "due to his symptoms and extreme irritability" which was the kind of major occupational impairment encompassed by a 70 percent disability rating. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that an initial 70 percent disability rating, but no higher, for PTSD is warranted for the period from May 1, 2014, to June 13, 2016. The Board finds that the Veteran's symptoms more nearly approximate a degree of occupational and social impairment consistent with deficiencies in most areas. The Board notes that the August 2014 VA examiner determined that the Veteran's psychiatric symptoms were best summarized as the Veteran's "mental condition has been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication." However, the Board notes that the Veteran has demonstrated disturbances of motivation and mood, intrusive thoughts, flashbacks, avoidance, depression, anxiety, chronic sleep impairment, panic attacks, hypervigilance, exaggerated startle response, nightmares, and irritability with outbursts of anger. The Board also recognizes that the Veteran reported that he had punched walls in anger, experienced extreme avoidance of crowds and social settings, exhibited increased panic attacks, experienced auditory hallucinations during intense anxiety, and left his position of employment due to conflicts with his supervisor. Accordingly, the evidence currently of record can be read as showing deficiencies in most of the areas listed under the criteria for a 70 percent rating. As a result, an initial rating of 70 percent is granted. The Board acknowledges that the results of the VA examination and the symptoms described in the mental health treatment notes do not indicate that the Veteran experienced all of the symptoms associated with a 70 percent disability rating for PTSD for the period from May 1, 2014, to June 13, 2016. However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, a finding that there are deficiencies in most areas is sufficient to warrant a 70 percent disability rating, even though all the specific symptoms listed for a 70 percent rating are not manifested. Thus, for all the foregoing reasons, the Board finds that an initial 70 percent rating for PTSD is warranted for the period from May 1, 2014, to June 13, 2016. However, after reviewing evidence of record as a whole, the Board finds that the assignment of an initial disability rating greater than 70 percent for the Veteran's PTSD is not warranted for the period from May 1, 2014, to June 13, 2016. While treatment records demonstrate that the Veteran experienced significant occupational and social impairment, the Board again notes that the maximum rating of 100 percent requires total occupational and social impairment. Notably, the Veteran was consistently found to be well-oriented, and to exhibit normal judgment, memory, speech, and thought processes. The record also shows that the Veteran advocated for himself in his employment conflict, attended college, and pursued vocational rehabilitation. The Board has expressly considered the November 19, 2014, VA treatment record noting that the Veteran reported that "in times of high anxiety he has heard explosive gun fire and whispering that is incoherent" and recognizes that "persistent delusions or hallucinations" is a symptom contemplated by a 100 percent rating. However, the Board finds that the severity, frequency, and duration of the Veteran's reported history of auditory hallucinations during times of high anxiety does not rise to the level contemplated by the 100 percent disability rating. The remaining evidence of record shows that the Veteran denied hallucinations and exhibited no impairment in thought processes. Moreover, total occupational and social impairment has not been shown from May 1, 2014, to June 13, 2016, as there is no indication of total occupational and social impairment in the VA clinical evidence or examination reports. Regarding occupational impairment, the Veteran's treatment, examination, and vocational records show that his PTSD affected his ability to work. Additionally, as noted by the Parties in the January 2024 Joint Motion for Remand, a November 2015 Behavioral Health Outpatient Progress Note indicated that the Veteran reported losing his job because of "irritability difficulties getting along with his boss" while in a December 2022 Brief, the Veteran raised the issue of his 2015 termination of employment being "due to his symptoms and extreme irritability". However, no medical professional has provided any opinion indicating that the Veteran's psychological symptoms were productive of total occupational impairment. Notably, a review of available vocational rehabilitation records also shows that the Veteran continued to pursue employment following the loss of job in October 2015 and he also continued to attend school and ultimately earned his bachelor's degree. Regarding social impairment, although social impairment has been shown, the evidence of record does not show that the Veteran's service-connected PTSD has produced total social impairment as the Veteran was able to maintain his marriage, continue contact with his son, and engage in friendships. As noted above, the Veteran again remained married to his spouse and maintained a relationship with his son. He indicated that he visited with fellow veterans and maintained friendships during the period herein under consideration. Accordingly, in this case, the symptoms shown in the examination and treatment records do not equate to the symptoms contemplated for a 100 percent schedular rating from May 1, 2014, to June 13, 2016. Significantly, at no point did any VA examiner or treating physician find that the Veteran's PTSD caused total occupational and social impairment, as is required for the assignment of a 100 percent rating for the period from May 1, 2014, to June 13, 2016. In not granting a 100 percent schedular rating for the Veteran's service-connected PTSD, the Board is not minimizing the severity of the Veteran's symptoms. The Board notes that the evidence demonstrates that the Veteran experienced significant social impairment as a result of his PTSD. However, as noted above, the maximum rating of 100 percent requires total occupational and social impairment. The VA treatment records and VA examinations show no gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of own relatives, own occupation, or own name. Additionally, there were no reports of suicidal or homicidal ideation. Accordingly, in this case, the overall evidence of record does not reflect that the Veteran's symptomatology is so severe as to merit an initial 100 disability rating for the period from May 1, 2014, to June 13, 2016. Thus, for all the foregoing reasons, the Board finds that an initial rating of 70 percent, but no higher, for PTSD is warranted for the period from May 1, 2014, to June 13, 2016. R. Bisignani Veterans Law Judge Board of Veterans' Appeals Attorney for the Board DeFrank, James 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.