Citation Nr: 1751006 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-10 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to June 24, 2015, and a rating in excess of 70 percent thereafter. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran had active service from September 1967 to November 1970. This case comes before the Board of Veteran's Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for PTSD with alcohol abuse and assigned an initial 30 percent evaluation. In a January 2013 rating decision, the RO increased the initial assigned rating to 50 percent. In May 2015, the Board remanded the claim to the Agency of Original Jurisdiction. In a June 2015 rating decision, the RO increased the assigned rating to 70 percent, effective June 24, 2015. In a July 2015 statement, the Veteran disagreed with this decision. FINDINGS OF FACT 1. Prior to June 24, 2015, the Veteran's acquired psychiatric disorder has been characterized by occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas has not been shown. 2. After June 24, 2015, the Veteran's acquired psychiatric disorder has been characterized by occupational and social impairment with deficiencies in most areas, impaired impulse control, and difficulty in adapting to stressful circumstances; however, total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent, for PTSD prior to June 24, 2015, have not been met. 38 U.S.C.A. §§ 1110, 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2016). 2. The criteria for a rating in excess of 70 percent, for PTSD from June 24, 2015, onwards, have not been met. 38 U.S.C.A. §§ 1110, 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA examinations are associated with the claims file, where the examiners reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that this appeal was remanded in March 2015 in order to obtain relevant private treatment. However, the Veteran provided no authorization forms, and despite a follow-up letter in which the Veteran indicated that he had more evidence to submit in support of his appeal, no evidence was submitted. Additionally, VA has acquired the most recent VA treatment records and incorporated them into the claims file. Therefore, VA has met its duty to assist in this respect. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings The Veteran is presently service connected for post-traumatic stress disorder (PTSD) with alcohol abuse. His disorder is rated as 50 percent disabling for the period prior to June 24, 2015, and 70 percent for the period after that date. He is claiming entitlement to a higher rating for each period for that disability. 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 (2016). 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 (2016). Where 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 (2016). The Veteran's psychiatric disorder is rated under 38 C.F.R. 4.130, Diagnostic Code 9411. Under the applicable diagnostic criteria, 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. 4.130, DC 9411 (2016). 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 ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows 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/or 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) (2016). 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) (2016). 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 (2016). 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 ranging from 31-40 reflects 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.) A GAF score of 51-60 indicates "moderate 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 is described as "[s]ome 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. Prior to June 24, 2015 Based on the evidence of record, the Board determines that a rating in excess of 50 percent prior to June 24, 2015 is not warranted. Specifically, the record indicates that the Veteran's symptoms do not rise to the level of occupational and social impairment with deficiencies in most areas. Throughout the appellate period, the Veteran appeared well, or at least adequately, groomed, made good eye contact and showed normal speech and linear, goal-directed thought process. He was oriented in all spheres and his speech was clear and coherent. A March 2014 mental status exam showed that while unshaven and easily distracted, the Veteran was generally alert and verbally informative, and according to an October 2012 VA treatment record, he was generally conversational in demeanor. Thus, the Veteran was not in a state of near-continuous panic. The Veteran has a history of using alcohol to cope with his feelings of anxiety and depression and to assist him in sleeping. In his September 2011 VA examination, the Veteran indicated using alcohol to self-medicate, and that his sleep quality depends on how much alcohol he has had to drink. He also said that while he does drink in excess, he does so "to forget" and it does not cause impaired judgment. The Veteran describes an increase in alcohol use in an April 2012 mental health note. This increase is continued in treatment record from May 2013, in which the Veteran acknowledges that his drinking is a problem and requests that it be the focus of his treatment. While a March 2014 progress note mentioned the Veteran's ambivalence regarding his alcohol use, a note from the following October indicates that the Veteran had not recently been drinking. The above evidence indicates an improvement in the Veteran's alcohol-related symptoms. There is no indication of record that the Veteran's drinking has led to symptoms such as near-continuous panic, impaired impulse control, or any of the other markers of occupational and social impairment with deficiencies in most areas. While the Veteran suffers from disturbances of motivation and mood, these disturbances are adequately reflected in his current 50 percent rating. In his 2011 and 2012 VA examinations, the Veteran endorsed a depressed mood, anxiety, and suspiciousness, and endorsed "difficulty in adapting to stressful circumstances." In a July 2011 note, the Veteran discussed an incident that occurred in his motorcycle group, but declined to offer details. However, the Veteran stated that his mood was "pretty good" and that his antidepressant was beneficial. He also mentioned working with his high school reunion committee for an upcoming event. Further, April 2012 treatment notes from his therapist portray the Veteran as dealing with his increase in symptoms and well-motivated to make changes in his life. Finally, in a March 2014 progress note, the Veteran mentioned his improvement in anger management, stating that his decrease in irritability could be correlated to decreased intake of alcohol. Further, the Veteran has never had trouble with law enforcement. The above behavior shows that the Veteran is capable of impulse control, indicating that his symptomatology does not warrant a 70 percent rating. Despite his struggles with self-regulation, the Veteran is able to function independently. He has lived alone on income from disability since 2008. He is able to provide appropriate care for himself and meet his needs. As noted in several treatment records throughout the period on appeal, including a September 2012 VA examination, the Veteran is competent to handle his financial affairs. While the Veteran experienced recurrent distressing dreams and nightmares throughout the period on appeal, these symptoms are contemplated by DC 9411. In a March 2014 mental health note, the Veteran mentioned nightmares that "come and go." In a May 2012 mental health note, the Veteran reported nightmares one to three nights per week, though he went some weeks without any. In March 2014, the Veteran recalled nightmares that "come and go." In VA exams from 2011 and 2012, the Veteran noted that he used alcohol to help himself sleep. Sleep disturbances such as those described above are not uncommon with PTSD and do not warrant a 70 percent rating. Similarly, while the Veteran occasionally displayed impaired memory, these symptoms are already accounted for in his current disability evaluation. Specifically, in May and July 2011, his memory for recent and remote events was deemed to be intact. During this period, the Veteran did not endorse homicidal or suicidal ideations or symptoms of delusions or hallucinations. For example, in his 2011 and 2012 C&P examinations, as well as several treatment notes, the Veteran denied having ever wanted or tried to kill himself, despite a report of a 2006 overdose. There is a question as to whether this event, which is prior to the appeal period, was a suicide attempt, given that the Veteran since insists that it was a "medication mix-up" and denied intent to harm himself in an April 2012 VA examination addendum. Even if this was a suicide attempt, a single attempt prior to the appellate period does not rise to the level of a total impairment. While the Veteran has, at some times, driven while intoxicated and even struck a tree in March 2014 due to an unexplained and isolated blackout, he has generally not shown a pattern of impaired memory or judgment. Based on the symptoms clinically observed, the Veteran has experienced some of the relevant symptoms that might support a rating in excess of 50 percent. For example, he has exhibited difficulty in adapting to stressful situations. However, these symptoms do not reach the degree required to demonstrate occupational and social impairment with deficiencies in most areas. The criteria for the next-higher 70 percent rating depict a level of impairment, when viewed as a whole, that is more severe than the symptoms displayed by the Veteran. Indeed, many of these objective symptoms, such as obsessional rituals which interfere with routine activities and illogical, obscure, or irrelevant speech, have not been demonstrated Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as grossly inappropriate behavior and memory loss, to include social and occupational inadaptability. In this regard, it is clear that the Veteran's disorder impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 50 percent is warranted. Specifically, the Veteran has been divorced twice from the same spouse. However, a March 2014 report states that the Veteran's ex-spouse and his two sons have remained supportive. Notably, according to a 2014 note, the Veteran stepped up his care for his mother after a fall, and was instrumental in convincing her to receive medical attention. While the Veteran has significant social impairment due to his PTSD, it does not rise to the level of impairment with deficiencies in most areas, warranting a rating in excess of 50 percent. Given that the Veteran went on disability in July 2008, prior to the period on appeal, his occupational impairment due to PTSD is not analyzed here. Finally, the Board has also considered the Veteran's 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). The Veteran's GAF score was measured on multiple occasions. The Veteran's GAF score was 60 in May 2012, 55 in September 2012, and 55 in April 2012. A GAF score of 41-50 indicates 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 score of 51-60 indicates 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 peer or coworkers); and 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, and has some meaningful interpersonal relationships.). Here, the Board finds that a GAF score in the range of 51-60 is consistent with the symptoms the Veteran displayed during the period on appeal. Nevertheless, this level of impairment does not constitute total occupational and social impairment. Even accounting for his intermittent alcoholism, the Veteran's symptoms, including his anger and his relative social isolation, are best described as moderate, and adequately covered by the 50 percent rating. Given this evidence, the Board determines that the Veteran's psychiatric symptoms most nearly approximate the symptoms listed for a 50 percent rating. Specifically, his psychiatric disability was primarily manifested by memory impairment, and disturbances of motivation and mood. As the frequency, duration and severity of the Veteran's psychiatric symptoms demonstrate occupational and social impairment with reduced reliability and productivity for the period prior to June 24, 2015, a 50 percent evaluation is warranted for the Veteran's acquired psychiatric disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). After June 24, 2015 In the period after June 24, 2015, the Veteran's social and occupational functioning was clearly affected. However, it was not affected enough to merit a rating in excess of 70 percent. Specifically, the Veteran did not demonstrate total occupational and social impairment. For example, during this period, the Veteran demonstrated depressed mood, anxiety, suspiciousness, and difficulty adapting to stressful circumstances. These symptoms are adequately addressed in his current 70 percent rating for this time period. The Veteran's June 2015 examiner noted the Veteran is not socially adroit, but that therapy has helped him develop some behavioral restraints on his verbal and physical impulsivity. The examiner also noted that the Veteran's alcohol use disorder is in partial remission and is not a major contributor to the occupational and social impairments exhibited and experienced by the Veteran. Further, according to this exam and a subsequent urgent care note, the Veteran has a history of alcohol dependence, but has not recently been drinking. In his July 2015 Statement, the Veteran stated that he consumes alcohol on a daily basis as a form of self-medication as it assists with sleep and smooths him out. While this may be seen as a recent increase in his alcoholism, there is no evidence of record that the Veteran's drinking has led to symptoms such as gross impairment in thought process, persistent danger of hurting himself and others, or memory loss of close relatives or his own name. In his June 2015 exam, the Veteran exhibited persistent distorted cognitions about the cause or consequences of the stressor that led to his PTSD; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; and irritability, due to PTSD. Further, the Veteran does not trust anyone, and is induced to anger with little to no provocation. However, over the past several years he has learned to control the anger and not let others know what he is thinking or feeling. In fact, the Veteran recently had an incident at his grandson's little league game in which he displayed the ability to "self-talk" himself out of a potentially embarrassing or dangerous incident. During this period, the Veteran was able to function independently and was capable of managing his financial affairs. The examiner reported that the Veteran has recurrent distressing dreams. However, these sleep disturbances do not appear to represent a departure from his symptoms prior to June 24, 2015. In the period after June 24, 2015 the Veteran reported no hallucinations, delusions, or homicidal ideations. While the examiner did note suicidal ideations as part of the Veteran's current PTSD symptomatology, the 70 percent rating adequately addresses this symptom. The Veteran's social and occupational functioning during this period does not represent a departure from that of the previous period. The Veteran has pronounced difficulty with enjoying people or expressing positive emotions, further exacerbated by ennui, difficulty in establishing social or work related relationships, and feelings of detachment from people. However, according to his 2015 C&P examination, the Veteran receives regular visits from his mother, his sister, and his sons, and exchanges daily text messages with the latter. Socially, the Veteran has not exhibited total impairment for this period. As such, his symptoms do not merit a rating in excess of 70 percent. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his PTSD is worse than the rating he currently receives. In rendering a decision on appeal, the Board must 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. See 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. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate diagnostic codes. 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"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a rating in excess of 70 percent rating is warranted for this period. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board's analysis. As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Based on evidence of record, the Board determines that an increased rating for the Veteran's PTSD is not warranted for any period on appeal. As such, the appeal is denied. Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran does not contend, and the evidence does not show, that his service-connected disabilities render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER For the period prior to June 24, 2015, an initial disability rating in excess of 50 percent for an acquired psychiatric disorder is denied. For the period after June 24, 2015, a disability rating in excess of 70 percent for an acquired psychiatric disorder is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs