Citation Nr: 1721769 Decision Date: 06/14/17 Archive Date: 06/23/17 DOCKET NO. 12-20 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to October 25, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this case in September 2014 for further development. FINDING OF FACT Prior October 25, 2014, the preponderance of the evidence shows that the Veteran's PTSD was manifested by symptoms resulting in less than total occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW Prior October 25, 2014, the criteria for a 100 percent disability rating for the Veteran's PTSD were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA's duty to notify was satisfied by a letter in September 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. See 38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c). Relevant VA treatment records, private medical treatment records from identified providers, and lay statements have been associated with the record. VA psychological examinations were conducted in February 2010 and October 2014. Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner's assessment of the level of disability at the moment of examination. 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. PTSD (Diagnostic Code 9411) is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. In relevant part, the rating criteria are as follows: A 70 percent rating is warranted 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 that 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating 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 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. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to the DSM. See 38 C.F.R. § 4.125(a). Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Fourth Edition of the DSM (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Because the RO certified the Veteran's appeal to the Board in September 2012, this claim is governed by the DSM-IV. Under the DSM-IV, diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). According to the DSM-IV, in relevant part, a GAF score between 31 and 40 is indicative of 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 adult avoids friends, neglects family, and is unable to work). A GAF score between 41 and 50 is indicative of 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). GAF scores ranging from 51 to 60 indicate 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 coworkers). GAF scores ranging from 61 to 70 indicate 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. While an examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, it is not determinative of the percentage VA disability rating to be assigned. The percentage rating is to be based on all the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (1995); 60 Fed. Reg. 43186 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Resolving all reasonable doubt in the Veteran's favor, for the purposes of this decision, the Board will consider all of the Veteran's mental health symptoms to be related to his service-connected PTSD in the adjudication of this claim. The Board notes that the October 2014 VA examiner found the Veteran had many psychological symptoms contemplated by a 70 percent rating including a depressed mood, suspiciousness, chronic sleep impairment with nightmares and hyperarousal, mild memory loss, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a worklike setting. However, at the time of the examination, the examiner found that the frequency, duration, and severity of these symptoms caused the Veteran total occupational and social impairment. The AOJ gave some weight to the finding and found the Veteran entitled to a 100 percent disability rating for PTSD as of October 25, 2014. See March 2015 Supplemental Statement of the Case. After reviewing the totality of the evidence, the Board finds that the frequency, duration, and severity of the Veteran's symptoms prior to October 25, 2014 did not result in total occupational and social impairment. In regard to occupational impairment, the Veteran indicated that he was able to perform prior work that involved minimal social interaction until he developed physical difficulties that led him to retire. See, e.g., October 2014 VA examination. He worked for the same company for 31 years before he retired. The Veteran has not stated that his PTSD would prevent him from doing his prior work if he was physically able, and the evidence of record does not indicate that the Veteran suffers from limitations to concentration, persistence, or pace consistent with an inability to meet the mental demands of any work. Therefore, the Board finds that the preponderance of the evidence shows that the Veteran was not precluded from all occupational activity on the basis of his PTSD prior to October 25, 2014. Moreover, even if the Veteran's PTSD did cause total occupational impairment, the preponderance of the evidence would not support a 100 percent rating for PTSD because it does not support a finding of total social impairment prior to October 25, 2014. Pertinent treatment records prior to October 25, 2014 indicate that while the Veteran was not able to maintain many friendships, he was able to maintain relationships with some family members and exhibit appropriate behavior with treatment providers and others in a group setting. See, e .g., February 2009 PTSD Group Therapy Note from Bay Pines VA Healthcare System. It was reported that he attended church and occasional family gatherings. See February 2010 VA examination. The Veteran also reported maintaining a supportive friendship with his ex-wife. See, e.g., February 2014 Psychology Consult from CW Bill Young VA Medical Center (VAMC). Further, he had been married for 17 years to his current wife. See October 2014 VA examination. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran retained significant social functioning prior to August 25, 2014. In reaching its conclusion in regard to the Veteran's social and occupational functioning the Board carefully considered whether a 70 percent rating for PTSD contemplates the frequency, duration, and severity of the Veteran's symptoms manifested prior to October 25, 2014. The Board finds that the frequency, duration, and severity of the Veteran's symptoms more nearly approximated a 70 percent rating than a 100 percent rating during the period at issue. The Board considered not only the example symptoms enumerated in the rating criteria for each rating percentage, but the Board also considered whether the Veteran manifested symptoms of a similar severity, frequency, or duration in "most areas" applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board finds that the preponderance of the evidence shows that the Veteran did not have gross impairment in thought processes or communication during the period at issue. In contrast, many of the pertinent treatment records show the Veteran presented as alert and oriented with a normal mood, affect, thought processes and content. See, e.g., March 2014 Primary Care Physician Note from CW Bill Young VA Medical Center (VAMC). The Board notes that the Veteran sometimes experienced significant symptoms including impaired abstract thinking, disturbances of motivation and mood, difficulty articulating answers, irritability, intermittent eye contact, and an inability to establish and maintain effective relationships. See, e.g., October 2014 VA examination. However, the Board finds these symptoms were of a frequency, duration, and severity contemplated by a 70 percent rating and below. The Board finds the preponderance of the evidence also shows that the Veteran did not experience persistent delusions or hallucinations due the period at issue. The Veteran was sometimes noted to be suspicious, to exhibit some intrusive thoughts, and to check the security of his home several times at night. See, e.g., February 2010 VA examination. The Veteran also reported a history of increased startle response resulting in an episode where he hit his wife when she came up behind him. See November 2008 Consult and Screening from Bay Pines Healthcare System. However, the Board finds these symptoms are more akin to the obsessional rituals contemplated by a 70 percent rating and did not appear with the persistence contemplated by a 100 percent rating. See, e.g., October 2014 VA examination; February 2010 VA examination (noting the Veteran had unremarkable thought processes and content with no hallucinations). The Board finds the preponderance of the evidence shows that the Veteran did not exhibit grossly inappropriate behavior during the period at issue. In contrast, the pertinent treatment records show the Veteran was able to interact appropriately with treatment providers and in a group setting. See, e.g., October 2014 VA examination; February 2010 VA examination; February 2009 PTSD Group Therapy Note from Bay Pines VA Healthcare System. To the extent that the Veteran has a history of increased startle response and impaired impulse control (such as unprovoked irritability with periods of violence), these symptoms are contemplated by a 70 percent rating. The Board finds the preponderance of the evidence shows that the Veteran did not present a persistent danger to himself or others during the period at issue. The Board notes that the Veteran did report episodic suicidal ideation without intent, gestures, or a plan. See, e.g., February 2010 VA examination. However, the Board finds the suicidal ideation was not persistent as pertinent treatment records often reported no suicidal ideation. See, e.g., June 2009 PTSD Individual Therapy Note and November 2008 Consult and Screening from Bay Pines VA Healthcare System (reporting GAF scores of 53 and 50 respectively). Notably, a 70 percent rating contemplates suicidal ideation. Pertinent treatment records also show no persistent homicidal ideation, and the Veteran stated he has a calm temper and never goes into a rage. See June 2009 PTSD Individual Therapy Note and 2008 Consult and Screening Evaluation from Bay Pines VA Healthcare System. While the Veteran reported he did not always feel safe in his environment, he indicated he is no longer a danger to himself because he has stopped abusing drugs and alcohol. See February 2009 PTSD Group Therapy Note from Bay Pines VA Healthcare System. The Board finds the preponderance of the evidence does not show that the Veteran had intermittent inability to perform activities of daily living (including maintenance of minimum personal hygiene) during the period at issue. In contrast, the Veteran often presented as appropriately dressed and well-groomed. See, e.g., October 2014 VA examination; February 2014 Psychology Consult from CW Bill Young VAMC. February 2010 VA examination. To the extent that the Veteran neglected his personal appearance or hygiene at times, this is contemplated by a 70 percent rating. The Board finds that the preponderance of the evidence shows that the Veteran did not experience disorientation to time or place or memory loss for names of close relatives, his own occupation, or own name during the period at issue. In contrast, the February 2010 VA examiner found normal remote memory, recent memory, and immediate memory. The October 2014 VA examiner found only mild memory loss. To the extent that the Veteran may have exhibited some short and long-term memory loss including forgetting to complete tasks, these symptoms are contemplated by a 70 percent rating. Ultimately, the Board concludes that the preponderance of the evidence shows that the frequency, duration, and severity of the Veteran's symptoms more nearly approximated a 70 percent rating prior to October 25, 2014. Therefore, the Board finds that prior to October 25, 2014, the criteria for a 100 percent disability rating for the Veteran's PTSD were not met. Total Disability Based Upon Individual Unemployability In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held, in substance, that every claim for an increased evaluation includes a claim for a total disability rating based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevent him from working. The Veteran indicated that it was physical difficulties rather than mental difficulties that led him to retire. See October 2014 VA examination. The Veteran's only other service connected disabilities are tinnitus and right ear hearing loss, and the Veteran has not alleged these disabilities preclude him from engaging in substantial gainful employment. Accordingly, as the Veteran has not raised the issue of TDIU as a result of his PTSD, and as the objective evidence does not suggest that he cannot work due to this disability, the Board concludes that the issue of TDIU has not been raised. ORDER Entitlement to an initial evaluation in excess of 70 percent for PTSD prior to October 25, 2014 is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs