Citation Nr: 18131210
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 09-46 867A
DATE:	August 31, 2018
ORDER
1. The June 4, 2018 Board decision, to the extent that it denied an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to August 18, 2003, is vacated.
2. Entitlement to an initial rating in excess of 50 percent for PTSD prior to August 18, 2003 is denied.
FINDING OF FACT
Prior to August 18, 2003, the Veteran’s PTSD was not manifested by severe or serious impairment in establishing and maintaining effective or favorable relationships with people, with severe or pronounced impairment in the ability to obtain or retain employment, or occupational and social impairment with deficiencies in most areas.
CONCLUSION OF LAW
Prior to August 18, 2003, the requirements for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1–4.10, 4.130, Diagnostic Code 9411 (2017); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1987).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1960 to December 1963.
The Board remanded these matters in August 2016 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).
The Board previously addressed the issue of entitlement to a rating in excess of 50 percent for PTSD in a June 2018 decision. The Veteran’s representative submitted a Motion to Vacate the June 2018 decision in July 2018. As discussed below, a vacatur as to this issue is warranted; and the issue of entitlement to a higher rating for PTSD prior to August 2003 will be adjudicated de novo. The Board’s June 2018 remand as to the issue of entitlement to a TDIU is not vacated.
Vacatur
In April 2018, prior to the Board issuing a decision on the Veteran’s claim for entitlement to a rating in excess of 50 percent for PTSD prior to August 18, 2003, the Veteran’s representative submitted an addendum private medical opinion and a statement from the Veteran’s son, M.S., in support of the Veteran’s claims. The Board did not address this additional evidence in its June 2018 decision, and the undersigned apologizes for this oversight. Thus, the Board grants the Motion to Vacate the June 2018 decision pursuant to 38 C.F.R. § 20.904, and the June 4, 2018 decision is vacated as it relates to the Veteran’s claims for entitlement to a rating in excess of 50 percent for PTSD prior to August 18, 2003. 
Increased Rating
Entitlement to a rating in excess of 50 percent for PTSD prior to August 18, 2003.
Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3.
The United States Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.
The Veteran’s service-connected PTSD is currently evaluated as 50 percent disabling prior to August 18, 2003. Diagnostic Code 9411, which provides the rating criteria for PTSD (and posttraumatic-stress neurosis (disorder) prior to February 3, 1988). This rating criteria was modified on February 3, 1988 and on November 7, 1996.  Because the effective date of the award of service connection for PTSD is March 9, 1987, the Board will initially analyze the Veteran’s claim under the code as it was written in March 1987. However, the Board acknowledges that the appeal period does extend beyond the February 3, 1988 and November 7, 1996 modifications, and therefore, the Board will also analyze whether the Veteran meets the requirements for a higher rating under the criteria as it existed prior to February 3, 1988, from February 3, 1988 to November 7, 1996, and from November 7, 1996. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2006); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. §4.132, Diagnostic Code 9411 (1987).
Prior to February 3, 1988, a 50 percent rating was warranted when the Veteran’s ability to establish or maintain effective or favorable relationships with people was substantially impaired, and, by reason of psychoneurotic symptoms, reliability, flexibility, and efficiency levels were so reduced as to result in severe industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1988).
Prior to February 3, 1988, a 70 percent rating was warranted when the Veteran’s ability to establish and maintain effective or favorable relationships with people was seriously impaired, and the psychoneurotic symptoms were of such severity and persistence that there was pronounced impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1988).
Prior to February 3, 1988, a 100 percent rating was warranted when the Veteran’s attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as phantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; and the Veteran was demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1988).
From February 3, 1988 to November 7, 1996, a 50 percent rating was warranted when the Veteran’s ability to establish or maintain effective or favorable relationships with people was considerably impaired, and, by reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels were so reduced as to result in considerable industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996).
From February 3, 1988 to November 7, 1996, a 70 percent rating was warranted when the Veteran’s ability to establish and maintain effective or favorable relationships with people was severely impaired, and the psychoneurotic symptoms were of such severity and persistence that there was a severe impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996).
From February 3, 1988 to November 7, 1996, a 100 percent rating was warranted when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community and were totally incapacitating psychoneurotic with symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities, such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior or the Veteran was demonstrably unable to retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996).
In a January 1988 Federal Register Notice, VA noted that the changes to the rating criteria were “not intended to increase or reduce evaluations of mental disorders, but [rather, were] designed to reflect consistency in describing social and industrial impairment in each of the categories of mental disorders.” See 53 Fed. Reg. 30158 (January 4, 1988).
After November 7, 1996, the rating criteria provides for a 50 percent disability rating when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).
After November 7, 1996, the rating criteria provides for a 70 percent 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 inability 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).
After November 7, 1996, the rating criteria provides for a 100 percent rating 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).
The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vasquez-Claudio v. Shinseki, 713 F3d 112, 116–17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, “serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas”—i.e., “the regulation . . . requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vasquez-Claudio, 713 F.3d at 117–18; 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).
Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission.” 38 C.F.R. § 4.126(a). The Board must also “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 examination.” Id.
The Global Assessment of Functioning (GAF) scale is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Diagnostic and Statistical Manual of Mental Health Disorders (4th ed. 1994) (DSM-IV). A GAF score ranging from 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, or frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). DSM-IV; 38 C.F.R. §§ 4.125, 4.130. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).
Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter, 8 Vet. App. at 242. An assigned GAF score, like an examiner’s assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Accordingly, an examiner’s classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).
A December 1986 VA social work report shows that the Veteran had been diagnosed with anxiety.  The Veteran reported he had been referred from the Disabled American Veterans (DAV) because he was having difficulty maintaining employment and felt like he was going to explode. The social worker noted that the Veteran was employed (salary of $25,000), had contact with his children, and was active in his community.  She noted that the Veteran felt as though something was wrong and felt detached from his feelings. The social worker stated the Veteran was frustrated because he had worked hard for nothing. The Veteran reported being active in the Vietnam Veterans of America and the DAV. He also reported he was a state representative.
The Veteran filed a claim for service connection for PTSD in March 1987, indicating he was receiving outpatient treatment for mental health and describing symptoms including pulling away from family and friends to think about the past. In April 1987, the Veteran submitted a statement in support of his PTSD claim, indicating he had been having flashbacks since returning home from Vietnam. He specifically reported he would get tense and nervous when the war was brought up or around sirens or firearms, would often “agonize[]” over the deaths, and had a hard time coming to terms with the idea that the war had been “lost” and expressed shame and guilt associated with his Vietnam experience. He indicated that with time he thought he would feel better, but that this has not been the case. The Veteran further reported isolating behaviors such as never leaving his apartment, not wanting to socialize, and not wanting to go to the grocery store.
A Mental Status Evaluation was done at VA in April 1987. The examiner noted the Veteran’s appearance was neat, but he seemed suspicious and defensive. The examiner described the Veteran’s speech as rapid and pressured and that his memory was somewhat impaired, but the examiner specifically found the Veteran was fully oriented. The examiner noted that the Veteran did not appear to have delusions, disorganized thinking, or hallucinations, and, despite being tense, the Veteran seemed to display good judgment. The Veteran did not report any sleep disturbances, and he denied any suicidal ideation.
At a VA Examination conducted in July 1987, the Veteran reported that he suffered from depression and was confused about why he continued to lose good jobs. He reported that he would often lose concentration, struggled to sleep through the night, preferred to stay in his apartment, had a substance abuse problem, and often experienced flashbacks to Vietnam. The Veteran reported he felt he could not trust anyone and was afraid he had lost his self-control. He continued to report guilt over losing the war and hypervigilance around sirens. Despite notations that the Veteran preferred to stay in his apartment, he reported having a good relationship with his son, and he was involved with other local Vietnam Veterans and organizations for Veterans. The Veteran reported that these interactions would sometimes worsen his disability, causing him to disconnect from these groups for periods of time. The examiner reported the Veteran was presentable and intelligent, with no disturbance in cognitive function. The examiner also observed that the Veteran appeared to be genuinely hurting emotionally and did not appear to know what direction to take his life. The examiner also noted the Veteran did not report any hallucinations but would occasionally hear sirens or smell odors that were not real.
In a March 1988 statement, the Veteran wrote he continued to have flashbacks with nightmares multiple times per year, which interfered with his marriage and his relationship with his mother. He also reported he still could not retain employment due to nervousness.
From 1989 to 2003, there is a gap in treatment records. However, the symptoms reported in early 2003 are similar to those reported from 1987 to 1989. For example, in treatment notes from January to June 2003, the Veteran continued to report nightmares and flashbacks—reporting the war in Iraq was making his symptoms worse. These treatment notes indicate the Veteran did not display agitation, depression, or psychotic behavior, and he did not appear to have any cognitive issues or suicidal ideation. A GAF score of 50 was consistently reported throughout this time period.
In July 2003, a vocational rehabilitation counseling report indicated the Veteran did not report any family problems or personal concerns, but he reported he was last employed full-time in 1992 with intermittent handyman work in the following years. He reported to the counselor that he felt he could now return to work.
The Veteran submitted an opinion from a private physician in January 2010. The private physician opined that the Veteran’s PTSD symptoms were completely disabling by January 1991 with clear indications of deterioration since he returned from service. The Board does not dispute the credibility of this private physician. However, the Board notes the Veteran himself reported to VA examiners and counselors that he engaged in some part-time work after 1991, and he did not present with consistent depression until after August 2003. The Veteran also reported good family and other personal relationships as late as 2003. The Board finds the treatment notes written contemporaneously with the Veteran’s symptoms at the time of each appointment to be more credible than the private physicians opinion, written retrospectively, indicating the symptoms were completely disabling since January 1991.
Additionally, in accordance with the Board’s August 2016 remand, a retrospective opinion from a VA examiner was obtained in November 2016 to assist in determining the level of the Veteran’s disability prior to August 2003. The VA examiner who provided the retrospective medical opinion indicated the Veteran’s symptoms from 1987 to 2003 were clearly symptoms of PTSD. The examiner further opined that the symptoms presented in the claims file indicated the Veteran had a considerably impaired ability to establish and maintain effective or favorable relationships, and his reliability, flexibility, and efficiency levels were so reduced as to result in considerable industrial impairment given the Veteran’s reported inability to maintain full-time employment after being hired.
In April 2018, an addendum to the Veteran’s January 2010 private opinion was provided.  The private examiner noted that the Veteran had severe symptoms of PTSD from 1987 such as irritability, anger, violence, threatening and assaultive behavior, and severe substance abuse. The private examiner noted that the Veteran’s PTSD went untreated for over two decades. The examiner wrote that throughout the time period while the Veteran’s PTSD was untreated, the Veteran walked away from numerous jobs and had many conflicts with his supervisors, and as such, the private treatment provider opined that the Veteran was essentially unable to engage in meaningful and gainful employment prior to 2003. After a thorough review of the Veteran’s treatment records, the private examiner opined that the Veteran’s symptomatology was unchanged from 1987 to August 2003, when the Veteran was found to be unemployable. The examiner also specifically noted that the Veteran’s severe symptoms of PTSD continued even through periods of time when he was sober and not expressing depressive themes, which the private examiner opined suggested that the Veteran’s symptomatology was associated with his PTSD. The private examiner ultimately opined that the Veteran has been permanently disabled and unemployable due to his PTSD since at least 1987.
As noted above, because the Veteran’s claim extends to a period covered by Diagnostic Code 9411 prior to its February 3, 1988 modifications, the Board must analyze whether the Veteran’s PTSD warrants a rating in excess of 50 percent under the code as it existed prior to February 3, 1988.
Prior to February 1988, the Veteran’s treatment records indicate that though he reported he had difficulty maintaining employment, experienced feelings of detachment from others, intrusive thoughts, isolation behaviors, and flashbacks due to his mental health disability—then diagnosed as anxiety—the Veteran was employed and was active in his community. This suggests that his ability to maintain relationships was not seriously impaired. The Board acknowledges that the Veteran reported that he continued to lose good jobs. However, the Veteran also reported that he was serving as a state representative and engaging on a regular basis with various Veterans organizations, though he occasionally had to step away for periods of time. Furthermore, at his 1987 VA examination it was noted that the Veteran did not have any disturbances in cognitive function despite some memory impairment.
The Board acknowledges that the Veteran’s speech was noted to be rapid and pressured, and he presented as suspicious and defensive with some impairment in his memory. However, the Veteran was also noted to be fully oriented with good judgment, and treatment providers noted no delusions, disorganized thinking, hallucinations, or suicidal ideation.
The Board finds that based on the symptomatology reported by the Veteran and noted by VA examiners and other treatment providers and social workers, the Veteran’s total disability picture did not severely impair the Veteran’s ability to establish and maintain effective relationships with people or cause pronounced impairment in his ability to obtain or retain employment.
Under Diagnostic Code 9411, as it was written from February 3, 1988 to November 7, 1996, a 70 percent rating was warranted if there was severe impairment in the ability to establish and maintain effective relationships and severe impairment in the ability to maintain or retain employment. The Board notes that the Veteran indicated he engaged in isolating behaviors and had, at some points, a difficult relationship with his family over the period on appeal. However, he also indicated, as late as 2003, that he did not have any problems with his family relationships. The Veteran also was able to engage in social relationships with other Vietnam Veterans on an intermittent basis. The Board finds these facts, which were documented contemporaneously with the time period, indicate the Veteran’s ability to maintain relationships did not rise to the level of “severe” as required by Diagnostic Code 9411 as it existed between February 3, 1988 to November 7, 1996. 
In regard to the Veteran’s ability to maintain and retain employment, the evidence indicates the Veteran struggled to retain employment through the period on appeal and had stopped working full-time in 1991. However, the Veteran reported he was able to maintain part-time employment as a handyman for several years after 1991, and in 2003, the Veteran reported he felt that he would be able to begin working again. Given these facts, the Board finds the Veteran’s industrial impairment does not rise to the level of “severe.”
Finally, as the Veteran’s appeal includes a time period after November 7, 1996, the Board will analyze the Veteran’s claim under the current version of Diagnostic Code 9411. However, the Board notes that the modifications made to Diagnostic Code 9411 were not meant to increase or decrease, but rather, were intended to create consistency in describing social and industrial impairment. See 53 Fed. Reg. 30158 (January 4, 1988). As such, as the preponderance is against a finding that the Veteran’s symptomatology had worsened during this time period, and a 50 percent rating remains the proper rating for the Veteran’s PTSD.
As noted above, the claims file includes a gap in the records from 1989 to 2003. In considering the treatment records in the claims file from January 2003 to August 18, 2003, the Board finds the Veteran does not warrant a rating in excess of 50 percent under Diagnostic Code 9411 after November 7, 1996. 
Under the current version of Diagnostic Code 9411, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas. As noted above, the Veteran reported he had good family and personal relationships in July 2003. Treatment notes from January 2003 to June 2003 indicate the Veteran did not display cognitive decline or suicidal ideation, and he did not appear to be depressed or exhibit psychotic behaviors. While the Veteran had not been employed since November 1992, he indicated in July 2003 that he believed he could continue employment, and expressed a desire to start working again. The Board finds the Veteran’s total disability picture indicates he generally had been able to maintain some personal relationships and had maintained most cognitive function, and as such, the Board finds the totality of the evidence does not rise to the level of occupational and social impairment with deficiencies in most areas.
The Board finds—after considering the claim under Diagnostic Code 9411 as it was written prior to February 3, 1988, from February 3, 1988 to November 7, 1996, and from November 7, 1996—the Veteran’s PTSD symptoms do not result in a severely or seriously impaired ability to establish and maintain effective or favorable relationships with people and a severely impaired ability to obtain or retain employment or occupational and social impairment with deficiencies in most areas prior to August 18, 2003.
The Board acknowledges the retrospective opinion provided in April 2018 by a private examiner indicating that the Veteran was unemployable as a result of his PTSD prior to 2003. However, the Board finds the contemporaneous treatment records, which suggests that the Veteran was actively seeking employment and engaging in society, to be more probative than a retrospective opinion provided decades after the fact. 
The Board also acknowledges the statement provided by the Veteran’s son, M. S., in March 2018 and has considered it in its entirety. However, the Board notes that many of the experiences reported by M. S. are not first-hand accounts of the Veteran’s symptomatology or lifestyle from the time period prior to August 2003. Furthermore, these statements were made many years after the fact. As such, the Board finds concurrent statements made by the Veteran and his treatment providers to be more probative of the Veteran’s symptomatology and the relationship of that symptomatology to the Veteran’s diagnosis of PTSD as it existed prior to April 18, 2003.
As the more probative evidence of record indicates a total disability picture that more closely approximates the symptoms provided for by a 50 percent rating under Diagnostic Code 9411, an initial rating in excess of 50 percent for PTSD from March 1987 to August 2003 is not warranted.
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Keninger, Associate Counsel 

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