Citation Nr: 1751216 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 08-30 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial disability rating higher than 70 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to July 1969. He earned a Combat Action Ribbon during service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that reopened the Veteran's previously denied claim of entitlement to service connection for an acquired psychiatric disorder, granted service connection for PTSD, and granted a 50 percent disability rating, effective September 19, 2007. In July 2008, the Veteran disagreed with the disability rating and effective date assigned for the grant of PTSD. In response, the RO issued a Statement of the Case (SOC) in September 2008. The Veteran then filed an October 2008 substantive appeal. In October 2009, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO in Oakland, California. A transcript of the hearing has been included in the record. In December 2009, March 2012, and July 2016 the Board remanded the claims for additional development. In an August 2012 rating decision, the RO increased the disability rating for PTSD to 70 percent, effective September 19, 2007. In that decision, the RO also granted a claim for a total disability rating based on individual unemployability (TDIU), effective June 27, 2008. The case is again before the Board for appellate consideration. FINDING OF FACT The Veteran's PTSD is not manifested by total occupational and social impairment, nor have other symptoms on par with the level of this severity been shown. CONCLUSION OF LAW Entitlement to disability rating in excess of 70 percent for PTSD is denied. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to an increased disability rating for his service-connected PTSD. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in December 2009, March 2012, and July 2016, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to provide the Veteran with a hearing before RO personnel and associate Social Security Administration (SSA) records with the claims folder. Also, the July 2016 Board remand directed the AOJ to clarify with the Veteran whether he wished to withdraw the increased rating claim on appeal. Pursuant to the Board's remand instructions, the Veteran was afforded an informal hearing before RO personnel in August 2012 and his SSA medical records have been associated with the claims folder. Further, in a letter dated December 2016, VA informed the Veteran that if he wished to withdraw his appeal, he was to inform VA of such within 30 days of the date that the letter was issued; if he did not respond, his claim would be continued. A review of the claims folder reveals that the Veteran did not respond to the December 2016 letter. As such, the Veteran's PTSD claim was readjudicated most recently via a February 2017 supplemental statement of the case (SSOC). Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Duties to Notify and Assist 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 Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in October 2009. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. Higher evaluation for PTSD Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2017); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." PTSD is rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows: 100 percent: 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 and place; memory loss for names of close relatives, own occupation or name. 70 percent: 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); inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." A Global Assessment of Functioning (GAF) score is a quantifiable assessment of overall functioning used by mental health clinicians that reflects an individual's "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (both citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32 (1994)). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in January 2009; therefore the claim is governed by DSM-IV. The Board notes that the use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). In this case, however, the Veteran's claim is governed by DSM-IV and DSM-IV was in use at the time most of the medical entries of record were made. Thus, the GAF scores assigned remain relevant for consideration in this appeal. A GAF score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A GAF score 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; child frequently beats up other children, is defiant at home, and is failing at school). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideations, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). A GAF of 61 to 70 is defined as some mild symptoms OR some difficulty in social, occupational, or school functioning. A GAF of 71 to 80 is defined as, if symptoms are present, they are transient and expectable reactions to psychosocial stressors. A GAF of 81 to 90 would indicate absent or minimal symptoms and a GAF of 91 to 100 would indicate superior functioning in a wide range of activities; no symptoms. While the rating schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. The Board has reviewed all of the evidence in the Veteran's claims folder, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 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 favorable to the claimant. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran was provided a VA examination in January 2008. He reported that since his discharge from service in 1969, he had at least 50 jobs due to having "internal conflicts." He was afraid of getting too close to anyone and did not make many friends over the years. He was divorced 5 times and had 3 children. He lived in a house with his girlfriend. He also reported poor sleep, nightmares about his service in Vietnam, hypervigilance, and being easily startled and jumpy. He also reported severe episodes of depression over the years and passive suicidal thoughts but no plan or intent. He used medication for treatment. Upon examination, the VA examiner reported that the Veteran was dressed casually and was pleasant and cooperative during the interview. His mood was anxious and depressed, and his affect was restricted. His speech, thought process, and thought content were normal. He was not delusional or suicidal, and he denied hallucinations. Although his insight was impaired, his judgment, orientation, and memory were normal. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 50. The examiner further noted that the Veteran's PTSD interfered with the Veteran's work and social functioning. The Veteran was afforded another VA examination in March 2011. He continued to report difficulty sleeping, nightmares, hypervigilance, depression, difficulty making friends, and strong startle reaction. He also continued to live in a house with his girlfriend. Upon examination, the VA examiner noted essentially similar findings to those from the January 2008 VA examination. The examiner continued the diagnosis of PTSD and assigned a GAF score of 55. The examiner further reported that the Veteran is able to maintain basic activities of daily living such as dressing, feeding, and managing money. VA treatment records also document treatment for the Veteran's PTSD. The treatment records continued to document the Veteran's multiple divorces and that his PTSD symptoms such as his anger impair his functioning in his relationship with his girlfriend. A November 2007 evaluation noted the Veteran's persistent symptoms of irritability and anger outburst, hypervigilance, insomnia, and exaggerated startle response and a GAF score of 38. A March 2008 evaluation noted the Veteran's noted a conflict between the Veteran and his eldest son regarding the son asking the Veteran for a loan. Another March 2008 evaluation indicated the Veteran planned to shoot himself, but his girlfriend kept their gun locked away. A February 2010 record noted his participation in PTSD group therapy. An April 2011 mental health evaluation noted the Veteran's report of short term memory loss. A July 2012 mental health evaluation documented a GAF score of 44. Upon examination, the Veteran's appearance, behavior, speech, thought content, thought process, insight, judgment, and cognition were intact. However, his affect was anxious and mood was okay but the Veteran was stressed out. Additionally, a SSA mental health evaluation dated September 2008 indicated the Veteran had difficulty understanding instructions and concentrating as well as poor ability to interact with others. However, an October 2008 evaluation noted the Veteran spent time with others, although he was unable to go out alone, had panic attacks, and did not handle stress well. Based on the evidence of record, the Board finds that a 100 percent disability rating is not warranted for the Veteran's PTSD at any time during the period under consideration. While the Board accepts that the Veteran's PTSD traits significantly affect his functioning, the lay and medical evidence of record does not demonstrate both total occupational and social impairment. The Board notes that the Veteran has evidenced memory impairment as well as suicidal ideation at times during the period under consideration. However, the evidence does not demonstrate gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or memory loss for names of close relatives or own name, or other symptoms on a par with the level of severity exemplified in these manifestations. On the contrary, the Veteran has been found to have appropriate thought process and communication, the ability to maintain hygiene and daily activities, and has been oriented to time and place. The Board acknowledges that the Veteran is in receipt of TDIU due to his PTSD which indicates total occupational impairment. However, while the Board acknowledges that he has been divorced five times and does not have close friends, he has lived with his girlfriend for multiple years and further appears to have a relationship with his son. Also, as discussed above, he has participated in PTSD group therapy. As such, the Board finds that the record as a whole does not support the existence of symptoms such that there is both total occupational and social impairment. The Board further notes that as indicated above, the evidence of record reflects that the Veteran has symptomatology including nightmares, hyperarousal, intrusive thoughts, feelings of isolation, and hypervigilance. See Mauerhan, supra. These symptoms are fully contemplated in the assigned evaluation. However, the Board finds that such symptoms do not more nearly approximate a 100 percent rating as they are not of such a severity or frequency to result in total occupational and social impairment. The Board also observes that the Veteran has been assigned GAF scores between 38 and 55, which indicate some impairment in reality testing or communication to moderate symptoms. There is no question that the GAF score and 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, supra. However, the GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. 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). Given the actual psychiatric symptoms shown in this case, the Board finds that level of overall psychiatric impairment is shown to be consistent with a 70 percent rating. Based on all of the above, the Board finds that a disability rating greater than 70 percent is not warranted during any period under consideration. The Veteran's application for a higher schedular rating for his service-connected PTSD is denied. 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, 369-70 (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 an initial disability rating higher than 70 percent for service-connected PTSD is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs