Citation Nr: 1605617 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 14-23 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial disability evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970, including service in the Republic of Vietnam from September 1969 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. From May 5, 2011, the Veteran's PTSD has been manifested by symptoms such as panic attacks more than once a week, impairment in short term memory, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective social relationships. 2. The Veteran's memory loss has not been found to be exclusively linked to his history of strokes. CONCLUSION OF LAW From May 5, 2011, the criteria for a 50 percent rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.130, DC 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance In this case, service connection for PTSD was granted in June 2012 and a disability rating and effective date were assigned. As the current matter stems from a disagreement with a downstream element, no additional notice is required because the purpose of the notice as intended to serve has been fulfilled. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the duty to assist, the Board finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the matter decided herein has been obtained. The evidence includes his VA treatment records, VA examination reports, private medical records, and lay statements from the Veteran and several of the Veteran's family members. Thus the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). II. Higher Rating The Veteran asserts his psychiatric disability is more severely disabling than currently rated and most closely approximates the criteria for a 70 percent rating. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's anxiety disorder the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2015). The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400, which provides the rating criteria for mental health disorders. A 30 percent disability 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, mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, DC 9440 (2015) A 50 percent rating is assigned 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-term 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. Id. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Lastly, a 100 percent evaluation is warranted for 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 ability 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. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall 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. See 38 C.F.R. § 4.126(a) (2015). Further, when evaluating the level of disability arising 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(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2015). In assessing the evidence of record, it is important to note that 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 Disorders 32 (4th ed.1994) (DSM-IV). A GAF score of 41-50 is defined as: "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A GAF score of 51-60 is defined as : "[m]oderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." A GAF score of 61-70 indicates: 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, has some meaningful interpersonal relationships. Id. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated "DSM-5." According to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. However, as the Veteran's increased rating claim was originally certified to the Board on July 21, 2014, the DSM-IV is applicable to this case. Thus, in reviewing the evidence of record, the Board will consider the assigned GAF scores of record. In doing so, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The evidence of record shows that in March 2011, the Veteran was contacted by a VA clinician regarding symptoms of depression. He stated that he was generally functioning well on antidepressant medication. He denied suicidal ideation and reported increased motivation and decreased subjective feelings of depression. In April 2011, the Veteran presented for a neuropsychological assessment. At that time he presented as alert, polite and cooperative. He was generally temporally oriented and basic attention was intact. Speech was fluent and comprehension was intact. He performed satisfactorily on measures of oral reading, spelling, and visual confrontation naming, written arithmetic and constructional praxis. He had some difficulty with repetition and writing to dictation. He reported often not being in good spirits. He also reported lethargy, being easily upset, and frequently feeling like crying. He reported irritability, but denied suicidal and homicidal ideation. In May 2012, the Veteran had a VA examination in connection with his claim of service connection for PTSD. He was found to have anxiety with nightmares 1-2 times per month, irritability, anger, and hypervigilance. He also expressed that it was "very likely" that he might become violent. The examiner stated that his PTSD symptoms were chronic and mild - probably made worse due to his stroke and mini-strokes making it harder for him to manage his emotional world. Other symptoms included chronic sleep disturbances; difficulty concentrating; depressed mood; mild memory loss such as forgetting names, directions or recent events; and impaired abstract thinking. He denied hallucinations and delusions. He admitted to issues with his wife due to his increased anger, and reported a preference for avoiding family social activities, favoring isolated activities such as watching television. He also admitted that those closest to him fear his anger. He reported fewer friends than before. He was no longer working, having retired many years prior, but denied major negative interactions with supervisors, colleagues, and subordinates throughout his career. The examiner noted his history of stroke and mini-strokes, but stated that he could not offer an opinion as to the Veteran's memory issues. Particularly, while those symptoms may be attributable to his prior stroke, they may also be affected by his PTSD. A letter from a the Veteran's VA treating physician reflects that examiner's assessment that the Veteran's PTSD was both chronic and severe. Symptoms included insomnia; frequent recurring nightmares; disturbances of motivation; depression; loss of interest in previously enjoyed activities; emotional numbness; frequent panic attacks; hypervigilance; severe anger and irritability issues; and chronic difficulties with social relationships. The physician also stated that the Veteran has a poor quality of life. He stated that his GAF scores typically range from 50 to 58, indicating serious to moderate symptoms. In May 2014, the Veteran was again afforded a VA examination to assess the severity of his PTSD. The examiner noted that two months prior the Veteran's wife had reported he had had several good months and she did not feel as though she was "tip toeing" around him. Symptoms at that time included avoidance activities; hypervigilance; exaggerated startle response; depressed mood; chronic sleep disturbances; and mild memory loss, such as forgetting names, directions or recent events. He reported having some friends and activities which he enjoyed. The examiner also stated that the severity of his PTSD did not appear to have changed significantly since the evaluation in May 2012. The Veteran's memory was noted to also be affected by his prior stroke. In light of the above, the Board finds that the Veteran is entitled to an initial rating of 50 percent for his service connected PTSD. The Board finds that a 50 percent rating is appropriate because the Veteran's PTSD has been noted to affect his social relationships, mood, and motivation. He has been found to have anxiety attacks, although not on a constant level. There also appears to be some minor impairment in terms of thinking, particularly, with regard to memory. Here, while the Board recognizes that the Veteran's VA examinations also would attribute his memory issues to his history of strokes, as of this time, no one has indicated that his memory issues are exclusive to that etiology, and therefore the Board will consider them. See Mittleider v. West, 11 Vet. App. 181 (1998) (finding that when it is not possible to separate the effects of the service-connected condition from a non-service connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition). Regardless, his memory issues tend to be somewhat minor, and are limited to forgetting names, directions or recent events. Additionally, his reported GAF scores have generally indicated moderate symptomatology such as flat affect and circumlocutory speech, occasional panic attacks, or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers), criteria which the Board finds better fits the 50 percent rating for a psychiatric disorder. Accordingly, the Board finds that a 50 percent rating should be granted effective May 11, 2011. See 38 C.F.R. § 4.130, DC 9440. The Board has considered whether a higher rating is warranted by the evidence of records, but find that it not. While the Veteran has been noted to have issues with family relations, thinking, and mood, there is no indicating that his PTSD has inhibited most areas, including his ability to work or engage in educational pursuits. Likewise, his judgment has been found to generally be good. He has consistently denied suicidal ideation. He has never engaged in obsessional rituals, his speech is good, there is no indication of spatial disorientation and he has consistently presented with good personal hygiene. While he does have some issues with interpersonal relationships, he has not proven unable to maintain them. His depression and anxiety have never been found to be near-continuous. Id. The Board has considered whether the Veteran's PTSD has resulted in total social and occupational impairment at any time, such that a 100 percent scheduler evaluation is warranted, but finds that it has not. Particularly, there were no indications of gross impairment of thought processes or communication and no signs of persistent delusions or hallucinations. The Veteran has never been found to be a danger to himself, and maintained at least minimal personal hygiene. Further, there was no indication that the Veteran was completely prevented from working during that period by his PTSD. Rather, he has reported retiring after a 38 year career from a position which he generally excelled at. Finally, while the Veteran does experience some memory issues, it has never been extended to loss for names of close relatives, his own occupation, or his own name. He has never been found to be disoriented to time and place. He has never engaged in acts of violence. Accordingly, there is presently no evidence in the record upon which upon which to assign a 100 percent rating. Id. (requiring "[t]otal occupational and social impairment" to establish entitlement to a 100 percent disability evaluation under the general rating formula for mental disorders). Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the rating criteria contemplate the Veteran's psychiatric disability as productive of symptoms specifically identified in the Rating Schedule and thus the manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's psychiatric disability and referral for consideration of extraschedular rating is not warranted. ORDER Subject to the law and regulations governing payment of monetary benefits, a 50 percent disability rating for PTSD is granted effective May 5, 2011. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs