Citation Nr: 1337207 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-42 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a higher initial disability rating (evaluation) in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1967 to June 1987. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, granted service connection for PTSD with an initial 30 percent rating. The Veteran has appealed the initial rating assigned for PTSD. The Veteran testified at a May 2013 Board personal hearing in Nashville, Tennessee (Travel Board). The hearing transcript has been associated with the claims file. While the Veteran submitted a notice of disagreement to the September 2009 denial of service connection for a skin condition (to include chloracne and dermatitis), and peripheral neuropathy of the bilateral hands and feet, and to the April 2011 denial of special monthly compensation based on aid and attendance, he did not submit a substantive appeal to these issues, and withdrew these issues prior to certification to the Board. Accordingly, the Board finds that the only issue presently on appeal is entitlement to a higher initial rating for PTSD. As the Board will discuss in more detail below, during the May 2013 Travel Board hearing, the Veteran and representative specified that the grant of a 50 percent rating for the entire rating period would fully satisfy his appeal; thus, the Board's grant of a 50 percent rating for PTSD for the entire rating period is a full grant of the benefits sought on appeal. This case is distinguishable from A.B. v. Brown, 6 Vet. App. 35 (1993) because, in this case, the Veteran has expressly stated that he is only seeking a 50 percent rating, and no higher, for the relevant rating period on appeal. During the May 2013 Travel Board hearing, the Veteran withdrew any and all other pending issues, and the Board finds that this includes any claim for a total disability rating based on unemployability (TDIU), whether it has been raised by the record or not. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). FINDING OF FACT For the entire rating period, a service-connected PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to symptoms which include depression, anxiety, agoraphobia, sleep disturbance, disturbances in motivation in mood, poor concentration, impairment of short term memory, difficulty adapting to stressful circumstances, and difficulty in establishing effective work and social relationships. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the entire rating period, the criteria for an initial disability rating of 50 percent for PTSD, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). In the present case, the Board is granting a higher initial 50 percent rating for service-connected PTSD for the entire rating period. The Veteran and representative have stipulated that a grant of such benefits would fully satisfy his appeal; therefore, this decision constitutes a full grant of the benefits sought on appeal, and no further discussion regarding VCAA notice or assistance duties is required. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial disability rating assigned to the service-connected disability by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson, 12 Vet. App. at 126. The Board finds that symptoms related to PTSD have not changed in severity over the course of the appeal. Instead, the Board finds that a higher 50 percent rating is warranted for PTSD for the entire rating period. The Veteran is in receipt of an initial 30 percent rating for PTSD under Diagnostic Code 9411. Under Diagnostic Code 9411 (PTSD), a 30 percent rating is assigned for 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). 38 C.F.R. § 4.130. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned 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, or for the veteran's own occupation or name. 38 C.F.R. § 4.130. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so, but may not disregard such evidence of differentiation in the record). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has generally embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. See Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In rating psychiatric disabilities under 38 C.F.R. § 4.130 , the Federal Circuit has held that a claimant's eligibility for a percent rating requires not only the presence of certain symptoms or others of similar severity, frequency, and duration, but also that those symptoms have caused occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 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, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect 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 obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). PTSD Initial Rating Analysis The Veteran contends that a 50 percent rating is warranted for PTSD for the entire rating period. He contends during a May 2013 Travel Board hearing that PTSD symptoms, separate from any residuals of a nonservice-connected skin disorder, are adequate to support a 50 percent disability rating. He provided testimony describing problems related to depression, poor sleep, problems with attention or focus, nervousness, and anxiety. During testimony at the May 2013 Travel Board hearing, the Veteran and his representative specified that the grant of a 50 percent rating for the entire appeal period would fully satisfy his appeal. In this decision, the Board is granting a higher initial 50 percent rating for PTSD for the entire rating period; thus, this is a full grant of the benefits sought on appeal. The Board finds the Veteran's waiver of the remaining aspects of the appeal was knowing and intelligent, was made with representation and in the presence of his representative, was supported by the Veteran's testimony, and is consistent with the evidence of record. The Veteran and his representative explicitly stated that the 50 percent rating would "fully satisfy" the appeal and that the Veteran was withdrawing any and all other issues pending, including the claim for a rating in excess of 50 percent for PTSD. This is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B., 6 Vet. App. at 39 (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). In this case a 50 percent initial disability rating for PTSD has been granted, and the Veteran has limited the appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating in excess of 50 percent. See 38 C.F.R. § 20.204 (2013) (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of a higher disability rating in excess of 50 percent are rendered moot with no remaining questions of law or fact for the Board to decide. See 38 U.S.C.A. § 7104 (West 2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Service connection for PTSD was granted in a September 2009 rating decision. In granting service connection and in assigning the initial 30 percent rating, the RO considered various psychiatric diagnoses and symptoms shown in the record, to include depressive disorder, anxiety disorder, and PTSD. An August 2009 VA examiner noted that much of the Veteran's psychiatric impairment was related to a nonservice-connected skin disorder. A more recent November 2012 VA examination reflects a diagnosis of adjustment disorder with mixed anxiety and depressed mood due to a nonservice-connected skin disorder, as well as anxiety disorder due to subclinical PTSD symptoms. The VA examiner explained the reasons for his differential diagnosis based on the Veteran's symptoms and presentation. While service connection was initially granted for PTSD, because symptoms related to depression and anxiety were considered in granting service connection and in rating PTSD, for the entire rating period, the Board has considered all the Veteran's psychiatric symptoms and diagnoses in rating the service-connected PTSD. See Mittleider, 11 Vet. App. 181. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period, the severity of the Veteran's psychiatric symptoms more nearly approximate a rating based on occupational and social impairment with reduced reliability and productivity as described for a higher 50 percent rating under Diagnostic Code 9411. See 38 C.F.R. § 4.130. The Board finds that, for the entire rating period, service-connected PTSD has resulted in occupational and social impairment with reduced reliability and productivity due to symptoms which include depression, anxiety, agoraphobia, sleep disturbance, disturbances in motivation in mood, poor concentration, impairment of short term memory, difficulty adapting to stressful circumstances, and difficulty in establishing effective work and social relationships. An August 2009 VA examination report reflects a diagnosis of PTSD with acute exacerbation. Psychometric testing results were significant for depression and were consistent with the PTSD diagnosis. The Veteran was divorced without children and reported having no friends. He last worked as a security guard in 2005, reportedly due to health reasons. The Veteran was assessed with a GAF score of 45, but the VA examiner indicated that the GAF score was related to the Veteran's nonservice-connected dermatologic condition. The VA examiner stated that the Veteran could not sustain or be involved in gainful employment, but indicated that this was due to the Veteran's weakening medical condition and dermatologic disease with exacerbation during stressful times, but did not indicate total occupational and social impairment due to PTSD symptoms alone. A November 2012 VA examiner identified primary diagnoses of adjustment disorder due to a nonservice-connected skin condition, and anxiety disorder NOS due to service-connected, subclinical PTSD symptoms. Adjustment disorder, related to the nonservice-connected skin condition, was stated to be the primary etiology of the Veteran's current distress and agoraphobia. Nonetheless, the VA examiner diagnosed the Veteran with anxiety disorder NOS related to subclinical PTSD symptoms that increased anxiety and distress above and beyond the distress and impairment caused by adjustment disorder from the skin condition. The Veteran was assessed with a GAF score of 42 due to serious symptoms and serious impairment in social and occupational functioning, and the Veteran was stated to have total occupational and social impairment. The VA examiner specified that most of the Veteran's distress and impairment was clearly due to adjustment disorder related to the nonservice-connected skin condition, but stated that subclinical PTSD symptoms added to anxiety and depressed mood. Accordingly, the VA examiner stated that it was not possible to differentiate what portion of each symptom was attributable to each diagnosis. August 2009 and November 2012 VA examinations identified psychiatric symptoms which include depression, anxiety, agoraphobia, sleep disturbance, disturbances in motivation in mood, poor concentration, impairment of short term memory, and difficulty adapting to stressful circumstances. While the August 2009 VA examiner indicated that the Veteran was unable to establish and maintain effective relationships, the November 2012 VA examiner indicated, instead, that the Veteran had difficulty in establishing effective work and social relationships. During VA examinations and during the course of VA treatment from 2011 to 2012, the Veteran consistently denied symptoms of suicidal ideation. The Veteran began receiving mental health treatment at VA in 2011. VA treatment records reflect GAF scores ranging from 45 to 50 in 2011, and from 50 to 60 in 2012, indicating a lesser degree of impairment than shown during VA examinations. The Board finds that, for the entire rating period, the Veteran's symptoms and the severity of the symptoms are consistent with the criteria for a 50 percent rating under Diagnostic Code 9411. See 38 C.F.R. § 4.130. VA examinations reflect GAF scores ranging from 42 and 45 indicating severe symptomatology, see DSM-IV at 46-47, but indicate that a large part of the Veteran's impairment is related to adjustment disorder from a nonservice-connected skin condition. More recent VA treatment records dated in 2012 reflect higher GAF scores ranging from 50 to 60, indicating moderate to serious psychiatric symptoms. The Board finds that the Veteran's symptoms, which include depression, anxiety, agoraphobia, sleep disturbance, disturbances in motivation in mood, poor concentration, impairment of short term memory, difficulty adapting to stressful circumstances, and difficulty in establishing effective work and social relationships, and the overall severity of the symptoms. Such symptoms and degree of occupational and social impairment more nearly approximate the criteria for a higher, 50 percent rating for PTSD. For these reasons, and resolving doubt in favor of the Veteran, the Board finds that for the entire rating period the severity of the Veteran's occupational and social impairment and symptoms due to service-connected PTSD more nearly approximates the criteria a higher 50 percent disability rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Board has reviewed all the evidence of record, lay and medical, and finds that for the entire rating period the Veteran has not met or more nearly approximated the criteria for a higher 70 percent disability rating. See 38 C.F.R. § 4.130. For the entire rating period, the record does not indicate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to PTSD. While the Veteran was assessed with GAF scores of 42 and 45 during VA examinations and total occupational and social impairment, both VA examiners indicated that most of the Veteran's impairment, including significant social impairment, was due to adjustment disorder from a nonservice-connected skin condition, and not PTSD. The Board finds that the Veteran's overall level of impairment due to PTSD signs and symptoms do not more nearly approximate the criteria for a higher 70 percent disability rating. For these reasons, the Board finds that the criteria for an initial rating in excess of 50 percent for PTSD are not met or more nearly approximated. See 38 C.F.R. § 4.130. Because the Veteran has knowingly withdrawn all aspects of the appeal that encompassed an increased rating in excess of 50 percent, the Board finds that further discussion of this issues, to include any question with regard to an extraschedular rating under 38 C.F.R. § 3.321, is not necessary. ORDER For the entire rating period, a higher initial 50 percent rating for PTSD is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs