Citation Nr: 1729697 Decision Date: 07/27/17 Archive Date: 08/04/17 DOCKET NO. 11-03 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1970. He is the recipient of multiple decorations, including the Purple Heart with one Oak Leaf Cluster and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied a rating in excess of 30 percent for the service-connected PTSD. Although a subsequent December 2010 Decision Review Officer (DRO) decision assigned a 50 percent rating, effective July 24, 2009 (date of claim), this matter remains in appellate status pursuant to the holding of AB v. Brown, 6 Vet. App. 35 (1993). The case was previously before the Board in August 2015 when it was remanded for additional development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Throughout the pendency of the appeal, the Veteran's PTSD has resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an evaluation of 70 percent, and no higher, for PTSD, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board is satisfied that there has been substantial compliance with the August 2015 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). II. Higher Evaluation The Veteran seeks an evaluation in excess of 50 percent disabling for PTSD. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's PTSD disability is currently evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Under the provisions of Diagnostic Code 9411 a rating of 50 percent is assignable 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 per 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. A rating of 70 percent is assignable 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 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 work like setting); inability to establish and maintain effective relationships. Id. A rating of 100 percent is assignable 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. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score, which is defined by DSM-IV as number between zero and 100 percent, that represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, are not dispositive of the rating issue; rather, the GAF score 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). 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). Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). GAF scores of 41-50 indicate 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). Id. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093 (Aug. 4, 2014). As the Veteran's increased rating claim was originally certified to the Board in November 2014 (after August 4, 2014), the DSM-5 is applicable to this case. Effective August 4, 2014, VA also 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. However, 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. The Veteran submitted a claim for increased rating in July 2009. The Veteran was afforded a VA examination in October 2009. The Veteran described his symptoms of exaggerated startle response, hallucinations ("coming back"), depressed mood, apathy, low motivation, lack of trust, and feeling distant from people. He reported the symptoms were constant and that they affected his total daily functioning resulting in social isolation, even at work. He reported he had trouble sleeping, described as staying asleep. The Veteran was a widower. He had children and described his relationship with them as distant. He was not receiving any treatment for his condition and had not been hospitalized or had emergency room visits for psychiatric reasons. He reported that he had been working for the past 20 years. His relationship with his supervisor was fair and his relationship with his co-workers was poor. The Veteran reported that he had hit people who had dropped stuff behind him. Orientation was within normal limits. Appearance and hygiene were appropriate. Behavior was appropriate. He did not maintain any eye contact during the exam. Affect and mood showed a disturbance of motivation and mood and a flattened affect. Affect and mood examination indicated a depressed mood which occurred near-continuously and affected the ability to function independently. The reasons were they resulted in poor productivity and irritability. He reported being constantly agitated. Communication was within normal limits. Speech was within normal limits. The Veteran showed impaired attention and/or focus. Panic attacks were present and occurred less than once per week. There were signs of suspiciousness. There were no delusions. There was a history of hallucination that was intermittent, including hearing voices and whispers. No hallucinations were observed at the examination. There were no obsessional rituals. Thought processes were appropriate. He did not have slowness of thought or appear confused. Judgment was not impaired. Abstract thinking was normal. Memory was mildly impaired. He forgot names, directions, and recent events. There were passive thoughts of death. Homicidal ideation was absent. There were behavioral, cognitive, social, affective or somatic symptoms attributed to PTSD and were described as hypervigilance, depression, hyperarousal, emotional distance, and the return of hallucinations after an absence of approximately 10 years. The Veteran was diagnosed with PTSD and was assigned a GAF score of 53. The examiner further noted that the Veteran had difficulty falling or staying asleep and difficulty concentrating. He was unable to establish and maintain effective work/school and social relationships because he has no friends and did not socialize. He had difficulty maintaining effective family role functioning because he only has contact with his children once per two years. He had intermittent inability to perform recreation or leisurely pursuits because his only recreational activity is playing with his dogs. The Veteran did not appear to pose any threat of danger or injury to self or others. In May 2010 the Veteran was casually dressed and mildly disheveled, was polite and cooperative, and had no abnormal movements. Speech was normal in rate, volume, and inflection. Articulation and enunciation were appropriate. Mood was dysphoric. Affect was restricted in range. Thought process was goal directed and logical. The Veteran denied audio and visual hallucinations. Judgement and insight were fair. There were no cognitive difficulties noted. The Veteran was diagnosed with PTSD and alcohol dependence, and was assigned a GAF score of 50. In June 2010 the Veteran was appropriately groomed, cooperative and agitated, and appropriate. Psychomotor activity was unremarkable. Speech was of unremarkable rate, unremarkable tone, unremarkable volume, and fluent rhythm. Affect was anxious, irritable, stable, and appropriate. Mood was irritable. Thoughts were goal directed. The Veteran reported having suicidal ideation of a passive nature. He had no homicidal ideation. The Veteran had no hallucinations, illusions, or delusions. There was no evidence of psychosis. Intellectual functioning was grossly intact. Insight was fair. Judgement was grossly intact. The Veteran was diagnosed with PTSD, dysthymic disorder, and alcohol dependence. In another June 2010 treatment note the Veteran was casually dressed and fairly groomed. He was cooperative and interactive. He made poor eye contact and was apprehensive while relating tragedies. Speech was fluent, normal in rate/tone/volume, and not pressured. There were no abnormal involuntary movements, tics, tremors, or psychomotor agitation/retardation. Affect was tense, stable, and appropriate. Mood was reported as good but the Veteran appeared tense. Thought process was logical, coherent, goal directed, and without looseness of association. There was no overt psychosis and the Veteran was not hallucinatory in demeanor. He denied hallucinations, delusions, homicidal ideation, and suicidal ideation. Judgment and insight were intact. The Veteran was oriented to time, person, and place. Attention and concentration were intact. Memory was grossly intact. The Veteran was diagnosed with chronic PTSD, dysthymic disorder, rule out major depressive disorder versus double depression, and alcohol abuse. The Veteran was assigned a GAF score of 58. In June 2010 the Veteran reported that he was working. In August 2010 the Veteran reported that he continue to experience exaggerated startle reactions, as he gets jumpy with loud noises or unexpected come from behind approaches. He reported that he's always on edge, can't relax, and is hypervigilant watching where people are coming or going. He stated that he goes to bed on guard and woke up with the slightest noise. He also continued to experience depressed moods with erratic sleep/appetite, irritability, felt lousy at times, anhedonia and amotivation. He denied suicide ideations/intent or plans. On mental status examination the Veteran was casually dressed and fairly groomed. He was cooperative, interactive and made fair eye contact. Speech was fluent, normal in rate/tone/volume, and not pressured. There were no abnormal involuntary movements, tics, tremors, or psychomotor agitation/retardation. Affect was stable and appropriate. Mood was tense and constricted. Thought process was logical, coherent, goal directed, and without looseness of association. There was no overt psychosis and the Veteran was not hallucinatory in demeanor. He denied hallucinations, delusions, homicidal ideation, and suicidal ideation. Judgment and insight were intact. The Veteran was oriented to time, person, and place. Attention and concentration were intact. Memory was grossly intact. The Veteran was diagnosed with chronic PTSD, dysthymic disorder, rule out major depressive disorder versus double depression, and alcohol abuse. On mental status examination in October 2010 the Veteran was casually dressed. Speech was of normal rate and tone. There were no abnormal involuntary movements, tics, or tremors. Affect was pleasant and cooperative. Mood was cooperative and appropriate. Thought process was logical and goal-directed. Associations were intact and there was no looseness of association. He denied hallucinations, delusions, homicidal ideation, and suicidal ideation. Judgment and insight were within normal limits. He was oriented to person, place, and time. Attention and concentration were intact with clear sensorium. Cognition was grossly intact. On mental status examination in November 2010 the Veteran was casually dressed and cooperative. He made poor eye contact. Speech was of normal rate and tone. There were no abnormal involuntary movements, tics, or tremors. Affect was tense, guarded, and dysthymic. Thought process was logical and goal-directed. There was no poverty of thought content. Associations were intact and there was no looseness of association. The Veteran reported auditory hallucinations just when he woke up in the morning described as voices like running commentary. He denied delusions and homicidal ideations. He reported suicidal ideation but had no plan. Judgment and insight were fair. He was oriented to person, place, date, and time. Attention and concentration were intact with clear sensorium. Cognition was grossly intact. The Veteran was diagnosed with chronic PTSD, dysthymic disorder, rule out major depressive disorder versus double depression, and alcohol abuse. In March 2012 the Veteran reported sleep problems described as problems staying asleep. He did not think he was having bad nightmares; not at least he can remember. Mental status examination revealed the Veteran to be casually dressed with "ok" grooming. He was cooperative, interactive, and made fair eye contact. Speech was normal in rate and tone, and was not pressured. There were no abnormal involuntary movements, tics, or tremors. There was no evidence of psychomotor agitation or retardation. Affect was tense but stable. He reported his mood as "better." Thought process was logical, goal-directed, and without looseness of association. There was no poverty of thought content. There was no overt psychosis. He denied hallucinations, delusions, homicidal ideation, and suicidal ideation. Judgment and insight were fair. He was oriented to person, place, date, and time. Attention and concentration were intact with clear sensorium. Cognition was grossly intact. The Veteran was diagnosed with chronic PTSD, dysthymic disorder, rule out major depressive disorder versus double depression, and alcohol abuse. In April 2012 the Veteran reported that he was sleeping 7 to 8 hours on medication. He denied becoming despondent and suicidal. He stated that nightmares were far in between. He remained avoidant and reactive to loud noises. He did not even get involved with groups because taking about the past made it worse for him. Mental status examination revealed the Veteran to be casually dressed and fairly groomed. He was cooperative, interactive, and made good eye contact. Speech was normal in rate and tone, and was not pressured. There were no abnormal involuntary movements, tics, or tremors. There was no evidence of psychomotor agitation or retardation. Affect was stable and less tense. He reported his mood was improved and okay. Thought process was logical, goal-directed, and without looseness of association. There was no overt psychosis. He denied hallucinations, delusions, homicidal ideation, and suicidal ideation. Judgment and insight were fair. He was oriented to person, place, date, and time. Attention and concentration were intact. Cognition was grossly intact. The Veteran was diagnosed with chronic PTSD, dysthymic disorder, rule out major depressive disorder versus double depression, and alcohol abuse. In July 2012 the Veteran was casually dressed and fairly groomed. He was uncooperative and reported that he did not want mental health treatment anymore at MEDVAMC. Speech was normal in rate and tone, and was not pressured. There were no abnormal involuntary movements, tics, or tremors. There was no evidence of psychomotor agitation or retardation. Affect was restricted and mood was "very angry." Thought process was logical. There was no overt psychosis. Judgment and insight were poor. He was oriented to person, place, date, and time. Attention and concentration were intact. Cognition was grossly intact. In July 2014 the Veteran had symptoms of insomnia. He did not have homicidal or suicidal ideation or hallucination. The Veteran indicated that he had nightmares or thought about it when he did not want to, tried hard not to think about it or went out his way to avoid situations that reminded him of it, reported that he was constantly on guard, watchful, or easily startled, and felt numb or detached from others, activities, or his surroundings. He reported trouble falling or staying asleep. Felt irritable or had angry outbursts. Had difficulty concentrating. Pursuant to the Board remand, the Veteran was afforded a VA examination in February 2016 which yielded diagnoses of PTSD and major depressive disorder. The examiner noted that the symptoms attributable to each diagnosis could be differentiated. The symptoms attributed to PTSD included physiological reactivity to triggers; avoidance and startle response. He reported startling and having physiological reactivity to loud noises, such as fireworks and things being dropped in his presence and avoiding places where he may be subjected to loud noises. He endorsed emotional detachment and no other symptoms of PTSD. The level of impairment was described by the examiner as occasional decrease in work efficiency and intermittent ability to perform occupational tasks, although generally functioning satisfactorily. The examiner noted that the majority of the Veteran's impairment was attributable to major depressive disorder. The Veteran lived alone and talked to his granddaughter twice a year. He sometimes saw his children at Christmas, sometimes not. The Veteran was noted to have been fired five years prior. He said that someone dropped something behind him and he cursed the person out. It turned out to be one of the bosses. He said this had happened previously but it was not with a boss. The Veteran reported that he has had difficulty finding jobs because he worked in a specialty position and word has gotten around among supervisors that his attitude would be a problem. The Veteran reported intermittent thoughts of suicidal/homicidal ideation. He had no plan or intent. The Veteran said he doesn't go out unless he has to because he did not want anyone making loud noises around him and because he is happier alone than with other people. The Veteran slept for 4 or 5 hours a night for about a week and then "it catches up with me" and he slept about eight. He reported that several people have told him that he does not manage his anger well. The examiner reported that the Veteran had symptoms of decreased interest, poor appetite, and psychomotor retardation. Mental status examination revealed the Veteran to be oriented times three. He had appropriate dress and grooming. Mood and affect were depressed but appropriate humor. Eye contact was poor. There was psychomotor retardation. Thought processes were within normal limits. Speech was clear, relevant, and coherent. The Veteran reported physiological reactive to loud noise. He endorsed emotional detachment and no other symptoms of PTSD. The Veteran's PTSD impacted his daily life by leading him to isolate so that he can avoid loud noises. The Veteran's PTSD symptoms impact his employability because he startles and reacts when something is dropped near him. The examiner stated that this did not prevent him from performing his duties, as he successfully held a job as a machine operator for over 35 years. He lost his job five years ago because he inadvertently reacted toward a supervisor and not a co-worker. The Veteran was assigned a GAF score of 55. The Board finds that entitlement to an evaluation of 70 percent, and no higher, for PTSD is warranted. Although the Veteran's symptoms waxed and waned during the period on appeal, the Veteran reported hallucinations and suicidal ideation. The Veteran was noted to have social isolation. Although the Veteran appears to have been working until 2011, the evidence reveals that the Veteran's psychiatric symptoms impacted his work environment as the Veteran reported that he had struck and shouted at co-workers who had dropped things behind him, and he eventually lost his job after an incident at work. A VA examiner during the period on appeal indicated that the Veteran had difficulty concentrating, was unable to establish and maintain effective work/school and social relationships, and had difficulty maintaining effective family role functioning. The Veteran's GAF scores ranged from 50 to 58 revealing moderate to serious symptoms. The Board has also considered that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, --- Vet. App. --- (2017 WL 1131190 ) (March 27, 2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). As such, affording the Veteran the benefit of the doubt, the Veteran's PTSD manifests symptoms more nearly approximating an evaluation of 70 percent disabling. Therefore, an evaluation of 70 percent disabling is granted. The symptoms and overall impairment did not, however, more nearly approximate the total occupational and social impairment required for a 100 percent rating. While the Veteran is socially isolated, there is no indication of gross impairment of thought processes or communication (he has been oriented, thoughts directed, speech normal). The Veteran has not contended that he is unable to work, rather that he has been unable to secure another job in his specialized fields because supervisors have spoken to each other about him. In June 2010, the Veteran reported that he was close with his step-daughter and 2 granddaughters and had several friends with whom he associated. In addition, the Veteran has been noted to have his daughter as his social support system. See, e.g., VA Treatment, January 2015. The Veteran's symptoms do not manifest in total occupational and social impairment. Thus, neither the symptoms nor overall impairment caused by the Veteran's service-connected PTSD more nearly approximated total occupational and social impairment. The Board notes neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation of 70 percent, and no higher, for PTSD, is granted, to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs