Citation Nr: 1751171 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-46 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), from April 28, 2010, forward. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2003 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that awarded service connection for PTSD and assigned an initial 30 percent rating, effective from December 21, 2008. In an October 2010 rating decision, the RO assigned an increased 50 percent rating for the Veteran's PTSD, effective from April 28, 2010. In September 2016, the Board granted a 50 percent rating, but not higher, for the Veteran's PTSD prior to April 28, 2010. The Board then remanded the issue of entitlement to an initial rating in excess of 50 percent for PTSD, from April 28, 2010, forward, for further development. That development having been addressed, the case has since returned to the Board. FINDING OF FACT Resolving reasonable doubt in his favor, as of April 28, 2010, the Veteran's PTSD more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW From April 28, 2010, forward, the criteria for a rating of 70 percent, but not higher, for PTSD are met. 38 U.S.C.A. §§ 1110, 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION For the reasons that follow, the Board concludes that an initial rating of 70 percent, but no higher, is warranted for the Veteran's PTSD, from April 28, 2010, forward. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2016). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2016). Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2016). However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. In initial rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected PTSD is currently evaluated as 50 percent disabling from April 28, 2010, forward, under 38 C.F.R. § 4.130, Diagnostic Code 9411, according to VA's General Rating Formula for Mental Disorders. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1. Under the General Rating Formula, as pertinent to the present appeal, a 50 percent rating is warranted where the disorder is manifested by 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating requires 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. The maximum 100 percent rating requires 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 memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed. 1994) (DSM-IV). Id. at 443. (The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 79 Fed. Reg. 45093. The amendments apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014. Id.). The Federal Circuit recently clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2016); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the "frequency, severity, and duration" of a veteran's symptoms "play an important role" in determining the disability level). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In evaluating psychiatric disorders, VA also considers a claimant's Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the DSM-IV 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); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. According to DSM-IV, a score of 61-70 indicates "[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." A score of 51-60 indicates "[m]oderate 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)." Id. A score of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 31-40 indicates "[s]ome 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)." Id. A GAF score thus may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 (observing that a GAF score of 50 indicates serious impairment). While an examiner's classification of the level of psychiatric impairment reflected in the GAF score assigned can be probative evidence, such a score is by no means determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2015); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the Veteran's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the time of examination. See 38 C.F.R. § 4.126. Evaluating all the evidence of record, the Board finds that the frequency, severity, and duration of the Veteran's reported PTSD symptomatology more closely approximates the criteria for a 70 percent rating from April 28, 2010, forward. In this regard, the evidence reflects that the Veteran's PTSD is productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. § 4.130, DC 9411. Specifically, VA psychiatric and mental health treatment records, as well as the April 2012 and January 2017 VA psychiatric examination reports, indicate, in particular, anxiety; depression; chronic insomnia; isolating behaviors; flashbacks and reexperiencing traumatic events; avoidance behaviors; mildly dysthymic restricted affect; hypervigilance; exaggerated startle response; fatigue; decreased concentration; impaired short-term memory; and diminished social and occupational functioning. See, e.g., April 2010 Progress Note (noting the Veteran's consistent reports of experiencing nightmares, flashback, recurrent intrusive thoughts, social isolation, avoidance, hypervigilence, exaggerated startles response, insomnia, depressed / anxious, irritable mood, panic attacks more than 3 times a week, difficulty understanding complex commands, short and long term memory impairment; impaired judgement and abstract thinking, flattened affect, relationship difficulties with others, and he began sucking his thumb); January 2011 VA examination report (reflecting that the Veteran was significantly socially withdrawn and had difficulty establishing and maintaining relationships); February 2012 Mental Health Medication Management Note (reporting the Veteran's symptoms as nightmares, flashbacks, recurrent intrusive thoughts, social isolation, avoidance, hypervigilance, exaggerated startled response, insomnia, depressed/anxious/irritable mood, angry mood, road rage, relationship difficulties with others); April 2012 VA C&P Examination Report (reflecting symptoms including anxiety, irritability and outbursts of anger, flashbacks, hypervigilance, nightmares, insomnia, social impairment, emotional detachment, disturbed motivation); January 2017 VA C&P Examination Report reporting (anxiety, sleep impairment, nightmares, hypervigilance, exaggerated startle response, and significant interpersonal problems "with supervisors in past work positions.") The Veteran has also submitted statements establishing he has had problems being in public and handling stressful situations. See May 2010 Appeal 9 Form; May 2010 Veteran Statement (stating the Veteran prefers isolation and carries his gun everywhere); January 2017 (reporting his wife left him due to increased isolation and after an incident where he woke and shot his gun in the house). The Veteran's mother also submitted a statement establishing that the Veteran was a kind outgoing kid but when he came back from the military he was guarded, isolated, and emotionless. See May 2010 Buddy Statement. The Board finds the statements from the Veteran and his mother to be competent and credible. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that a layperson is competent to report a contemporaneous medical diagnosis); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (lay testimony is competent as to matters capable of lay observation). Furthermore, the VA examination reports explicitly found that the Veteran's psychiatric disability resulted in occupational and social impairment. In a January 2011 VA C&P Examination Report the examiner noted the Veteran slashed the tires of an individual's car that had been tailgaiting him as well sent a letter threatening to "crush somebody's skull" if the VA lost his information again. The April 2012 VA C&P Examination Report found that the Veteran was fired from his employment due to an outburst of anger. The January 2017 VA C&P Examination Report found that the Veteran has remained distanced from his mother and aunt. The Veteran has had significant interpersonal problems with supervisors in past work positions as well as interpersonal conflicts with service providers at the Hampton VAMC prior to ending behavioral health services there. See January 2017 VA C&P Examination Report. The Veteran currently works in a position where he is primarily by himself. For the relevant period of appeal, the Veteran's GAF score was repeatedly found to be in the 41-50 range, which 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). See DSM-IV. See, e.g., January 2011 VA C&P Examination Report (noting a GAF of 50); April 2012 VA C&P Examination Report (reflecting a GAF of 50). As previously mentioned, a GAF score generally reflects an examiner's finding as to the Veteran's functioning score on that day. However, an examiner's assessment of the severity of a condition, is not dispositive. 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). Here, though, the assigned GAF scores reflect serious symptomatology and further support the finding that the Veteran's PTSD resulted in significant occupational and social impairment, thus entitling him to an evaluation of 70 percent from April 28, 2010, forward. See 38 C.F.R. § 4.130, DC 9411. Accordingly, given the evidence of severe PTSD symptomatology productive of symptoms including anxiety; depression; chronic insomnia; isolating behaviors; flashbacks; avoidance behaviors; restricted affect; hypervigilance; exaggerated startle response; and diminished social and occupational functioning, the Board finds that, the Veteran's PTSD at least as likely as not meets the criteria for a higher 70 percent rating from April 28, 2010, forward. 38 C.F.R. §§ 4.7, 4.130, DC 9411. See also 38 U.S.C.A. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, at no time during the pendency of this claim have the criteria for a 100 percent rating for PTSD been satisfied or approximated. See 38 C.F.R. § 4.130, DC 9411. As the Federal Circuit held in Vazquez-Claudio, a claimant may only qualify for a given disability rating under the General Rating Formula by demonstrating the particular symptoms corresponding to that rating, or others of similar severity, frequency, and duration. 713 F.3d at 117. The Federal Circuit made clear in this regard that in order to show that a symptom is equivalent in severity, frequency, and duration to a symptom listed in the General Rating Formula for a given rating, it is not sufficient that the symptom produce the level of occupational and social impairment associated with that rating. See id. at 116-17. Otherwise, a claimant "whose symptoms correspond[ed] exactly to a 30 percent rating" could be granted a 70-percent rating if it were shown that they affected most areas. Id. The Federal Circuit rejected this interpretation, holding that there must be an initial finding that the Veteran has one or more symptoms of similar severity, frequency, and duration to the symptoms specifically listed in the General Rating Formula for a given rating, and then, if that is established, an assessment of whether one or more of such symptoms produces the level of occupational and social impairment contemplated by that rating. See id. at 117-118. Here, the Veteran has not manifested any of the symptoms listed in the criteria for a 100 percent rating, and the symptoms he does have are not equivalent in severity, frequency, and duration so as to preclude social and occupational functioning. See id. See also 38 C.F.R. § 4.130, DC 9411 (listing symptoms for the maximum 100 percent rating including 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 memory loss for names of close relatives, own occupation, or own name). Not only is there an absence of any of the symptoms associated with a 100 percent rating, but the clinical findings consistently show that the Veteran's thought processes and communication were normal, that he did not have persistent delusions or hallucinations, that he has been able to maintain normal personal hygiene, is oriented, and that his memory is no more than moderately diminished. See 38 C.F.R. § 4.130, DC 9411. In order to warrant a 100-percent rating, the Veteran's PTSD symptoms must not only produce total occupational and social impairment, but must also be equivalent in severity, frequency, and duration to the symptoms corresponding to a 100 percent rating. See Vazquez-Claudio, 713 F.3d at 116-17. In other words, the Veteran's symptoms in and of themselves must be equivalent in severity, frequency, and duration to the symptoms listed for a 100 percent rating in order for this evaluation to apply; they cannot be bootstrapped into such equivalency by means of the functional impairment they allegedly cause. See id. (rejecting the interpretation that symptoms corresponding to a 30 percent rating would warrant a 70 percent rating merely because it was found that they cause deficiencies in most areas). Alternatively, the evidence reflects that the Veteran's PTSD has not caused either total occupational or total social impairment, as he has maintained some social relationships. See, e.g., January 2017 VA C&P Examination Report (acknowledging interpersonal relationships with his wife and son); and he has been noted to be generally self-sufficient, independently functioning, cooperative, and exhibiting normal communication by VA examiners and health care providers. See 38 C.F.R. § 4.130. Accordingly, the criteria for a 100 percent rating have not been satisfied or approximated during the pendency of this claim. See id. ORDER From April 28, 2010, forward, entitlement to an initial rating of 70 percent, and no higher, for PTSD is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs