Citation Nr: 1730133 Decision Date: 07/28/17 Archive Date: 08/04/17 DOCKET NO. 11-09 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to June 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office. This matter was remanded in January 2017. The Veteran requested a Board Central Office hearing in his April 2011 VA Form 9 Substantive Appeal. A hearing was scheduled for May 2016 and the Veteran did not appear or request to reschedule. Accordingly, his hearing request is considered withdrawn. 38 C.F.R. § 20.702(d) (2016). FINDING OF FACT The evidence reflects that, throughout the period on appeal, the Veteran's PTSD symptoms resulted in, at worst, occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). 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 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2016); where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2016); and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2016). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can 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 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected PTSD is currently rated as 50 percent disabling from April 17, 2008, the date of the Veteran's increased rating claim, under 38 C.F.R. § 4.130, Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders (Rating Formula). Under the Rating Formula, a 50 percent rating is warranted 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. Id. 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 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); and inability to establish and maintain effective relationships. Id. 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; 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, own occupation, or own name. Id. When evaluating the level of disability 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 (2016). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)). A GAF score of 61 to 70 indicates some mild symptomatology (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. 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 obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect 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 man avoids friends, neglects family, and is unable to work). The Mental Disorders Formula does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Furthermore, the Board notes that the GAF Scale has been abandoned in the updated fifth edition of the DSM. In this case, however, the DSM-IV was in use at the time the medical entries of record were made. Thus, any GAF scores assigned remain relevant for consideration in this appeal. 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 the 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; Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). 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. As a preliminary matter, in the year prior to April 17, 2008, when the Veteran filed his claim for an increased disability rating, there is no medical or lay evidence indicating a worsening of his PTSD. Therefore, a higher evaluation prior to the date of the claim is not warranted. See 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400(o)(2) (2016). The Veteran first underwent VA examination in connection with his claim in July 2008. He stated that he tried not to isolate himself, but didn't really like going out. His only leisure activity was golf, but he indicated that he attended church and that his wife was also a homebody. The Veteran had regular interactions with one or more friends, but did occasionally isolate himself from his wife and others. He appropriately interacted with others, engaged in social activities, was able to meet his family and work responsibilities, and was capable of the basic activities of daily living. The examiner reported that the Veteran demonstrated appropriate behavior and normal speech and impulse control. The Veteran related experiencing suicidal ideation in the past, but stated that he had no intent to act. He reported some memory problems, such as forgetting appointments. He indicated that he sometimes had panic attacks, but not often, and that he occasionally would not go to work if he had a panic attack. The examiner assigned a GAF score of 58 and opined that the Veteran's symptoms were chronic, continuous, and mild in severity. The examiner further opined that the Veteran's symptoms would have a mild effect on his employment and family role; a mild to moderate effect on his relationships; a moderate effect on his quality of life; and would not currently affect his activities of daily living, routine responsibilities, physical health, or leisure activities. The Veteran next underwent VA examination in February 2010. The examiner noted that the Veteran's current primary stressors included his relationship with his wife, who had recently been unfaithful, and economic difficulty with his business. The Veteran reported that in December 2009 his wife had threatened to leave him and he had experienced significant anxiety symptoms and had homicidal and suicidal thoughts which had since resolved. He experienced panic attacks approximately once per week with an increased heart rate, problems with short-term memory, and vertigo. The Veteran also described experiencing increased flashbacks and nightmares as a result of heightened anxiety. He felt that his symptoms were worse, with feelings of hopelessness and passive suicidal thoughts approximately once every two weeks. He reported that his relationship with his wife was currently poor, but that his relationships with his children were good. He had regular interactions with family, and many acquaintances but not many close friends. He enjoyed playing golf and was working, with no significant time missed. The examiner noted that the Veteran engaged in social activities, was capable of the basic activities of daily living and was able to meet work and family responsibilities. The Veteran reported being more isolative, but stated that he felt this was more due to a desire to an invest in his family rather than a disinterest in socializing. The examiner stated that the Veteran had no impairment of thought process or communication, delusions or hallucinations, current suicidal thoughts, memory loss or impairment, obsessive or ritualistic behavior, or impaired impulse control. The Veteran demonstrated appropriate behavior and normal speech. He had panic attacks and some feelings of hopelessness as well as sleep impairment. The examiner assigned a GAF score of 55 and opined that the Veteran's symptoms were chronic, continuous, and mild to moderate. The examiner further opined that the Veteran's symptoms would have a mild effect on employment and activities of daily living; a mild to moderate effect on relationships, leisure activities, and quality of life; and that routine responsibilities, family role, and physical health were not currently affected. The examiner noted that the Veteran had been doing well until recent stressors had destabilized him and that he continued to isolate himself from deep friendships. The Veteran most recently underwent VA examination in February 2017. He stated that he felt that the effect of his symptoms on his social functioning was a five out of ten or a scale of one to ten, and that the effect on his occupational functioning was a zero out of ten. The Veteran reported that his relationships with his children were fine and that he had been in a good romantic relationship since 2012. He had no current suicidal or homicidal ideation, hallucinations, delusions, or history of violence. He was self-employed working 50 to 60 hours per week but indicated that he had not made any money. He reported no problems with work performance, coworkers, or the public. He experienced symptoms of anxiety and chronic sleep impairment, but demonstrated an appropriate mood, euthymic affect, appropriate and congruent speech, appropriate thought process, was able to track a conversation, and was reflective and insight-oriented. His thought content was appropriate, rational, and logical, although the examiner needed to redirect the questions several times. He had fleeting passive thoughts of death one to two times per week for a few minutes with no plan or intent, and stated that he occasionally experienced fleeting suicidal ideation when stressed. The Veteran reported that he had three close friends and socialized on weekends, and that he spoke with his romantic partner every day. He denied any problems making or keeping friends. The Veteran indicated that he awakened several times per night and sometimes had trouble falling back asleep and estimated that he got an average of five hours of sleep per night. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. Findings noted in VA treatment records throughout the period on appeal are generally consist with those discussed above. GAF scores were assigned ranging between 53 and 68, with the majority 55 or higher. The Veteran reported that his memory was affected when he did not sleep. He ran a business, socialized with friends, and had a good relationship with his children. Upon review, the Board finds that a disability rating in excess of 50 percent for PTSD is not warranted at any point during the period on appeal as the symptoms are not of such a severity or frequency as to result in occupational and social impairment with deficiencies in most areas or total occupational and social impairment. The Veteran does not exhibit symptoms of such severity, frequency, or duration so as to meet the criteria for a 70 or 100 percent rating, nor is there any evidence or medical opinion that the Veteran is impaired to that extent. While the Veteran was noted to have some thoughts about death and fleeting suicidal ideation under stress, these thoughts were infrequent and he specifically indicated that he never had any plan or intention to act. The Veteran had effective social and family relationships and was able to run his own business. His judgment, thinking, and impulse control were within normal limits. He demonstrated no obsessive behaviors, neglect of his appearance or hygiene, or difficulty adapting to stressful circumstances. While he had occasional panic attacks and periods of depression, the evidence does not reflect that he experienced near-continuous panic or depression which affected his ability to function independently, appropriately, and effectively. GAF scores assigned during the period on appeal reflect mild to moderate symptoms. The Board acknowledges that the Veteran's symptoms appear to have increased in severity during the period following his initial separation from his now ex-wife, but finds that they did not increase to such a degree that a higher disability rating is warranted for that period of time. The Board has considered the Veteran's assertions as to his symptomatology and the severity of his condition, but, to the extent the Veteran believes that he is entitled to a higher rating than assigned herein, concludes that the findings during medical evaluation are more probative than his assertions to that effect. Furthermore, the assertions of the Veteran regarding the severity of his disability are consistent with the findings during VA treatment, with the rating currently assigned, and with the findings on VA examination. As such, the Board has considered the assertions of the Veteran but has also relied heavily on VA examinations, which duly considered the Veteran's subjective symptoms and do not show limitation of function approximating the 70 or 100 percent rating criteria. Neither the Veteran nor his representative has raised any other issues with respect to the increased ratings claims, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). ORDER Entitlement to a disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs