Citation Nr: 1752363 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 09-11 247A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1967 to December 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2011 a Decision Review Officer (DRO) hearing was held at the RO, and in October 2011 a Travel Board hearing was held before the undersigned. Transcripts of both hearings are in the record. In September 2012 and March 2013, the Board remanded the matter for additional development. FINDING OF FACT It is reasonably shown that, throughout, the Veteran's PTSD has been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; at no time is it shown to have been manifested by symptoms productive of total occupational and social impairment. CONCLUSION OF LAW A 70 percent (but no higher) schedular rating is warranted for the Veteran's PTSD throughout. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321(b)(1), 4.130, Diagnostic Code (Code) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in March 2009. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ( "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 duty to assist argument). A deficiency under Bryant v. Shinseki, 23 Vet. App. 488 (2010), is also not alleged (see Dickens and Scott). The Board finds there has been substantial compliance with its March 2013 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence that is 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. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. PTSD is rated under the General Rating Formula for Mental Disorders. A 50 percent rating is warranted when there is 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. A 70 percent rating is warranted when there is 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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. 38 C.F.R. § 4.130, Code 9411. Regarding the rating criteria, the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of this 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 under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). "[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Although a veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas'." Id. at 118. The Board has considered the Veteran's assigned Global Assessment of Functioning (GAF) scores, as documented in the record. The scores reflect the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (DSM). 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). 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). Lesser scores reflect increasingly severe levels of mental impairment. See 38 C.F.R. § 4.130 (2013). [Per revised 38 C.F.R. § 4.130, the rating criteria are now based upon the American Psychiatric Association's DSM-5. While the DSM-5 did not incorporate use of GAF scores to identify levels of disability, discussion of such scores is appropriate for evaluations/treatment provided prior to VA's adoption of DSM-5.] When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). 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 the examination. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). On December 2009 VA examination, the Veteran reported that he took Ativan for anxiety but he was not receiving psychotherapy. He reported that he had quit drinking 3 years prior, and that PTSD symptoms had worsened since. He reported he had no legal history. He reported a strained relationship with his wife; they were planning to divorce but could not afford it; so they lived together but their relationship was emotionally distant. He reported that the past 4 to 5 years had been rocky, and that drinking was the problem that started their issues. He saw his 2 daughters from a previous marriage once in a while, and was not close to them. He had no relationship with most of his family of origin; he had seen his mother a few months earlier for the first time in years. The examiner noted that the family of origin issues seemed to stem from before service. The Veteran reported that most of his friends drank, so now that he had stopped, he had only 2 friends, with whom he rode motorcycles. He avoided activities involving groups of people, and enjoyed motorcycles, fishing and hunting. There was no history of suicide attempts, violence or assaultiveness. The examiner opined that the Veteran clearly had some deficits in functioning, however, not all were related to Vietnam. The examiner opined that it appears the family of origin issues were all pre-existing, and it is unlikely the alcoholism helped but it did not seem to be the sustaining factor in those difficulties. The Veteran reported that he no longer used alcohol daily, but used cannabis daily, which improved his mood, his ability to sleep, and his appetite. He reported that after he discontinued alcohol his symptoms had worsened. The examiner opined that it seemed that his symptoms had been stable since the last examination and they did not appear to have increased. The Veteran reported that his health, work issues, home life, social activities, and substance use habits were the same as on previous examination. The examiner noted that the Veteran's PTSD symptoms caused a disturbance in functioning in that he chose activities that avoid crowds and he maintained his work by keeping to himself and choosing jobs with minimal interaction. The examiner opined that the Veteran's ability to advance in his occupation had likely been limited over the years by his PTSD symptoms. On mental status examination, the Veteran was neatly groomed and clean. His psychomotor activity and speech were unremarkable, and his attitude was cooperative, friendly, relaxed, and attentive. His affect was flat and his mood was described as "not too bad". His attention was intact, and he was fully oriented. His thought process and thought content were unremarkable, and no delusions or hallucinations were reported. His judgment and insight were intact. He reported sleep impairment with frequent awakening at night, waking up too early, feeling tired during the day, and bad dreams about Vietnam 3 to 4 times per week. He did not have inappropriate or obsessive/ritualistic behavior. He denied panic attacks, homicidal thoughts or suicidal thoughts. He had good impulse control and no episodes of violence. He was able to maintain minimum personal hygiene and had no problem with activities of daily living. His immediate memory was mildly impaired but remote and recent memory were normal; the examiner noted that it was unclear if the reported memory impairment was from distraction, long term alcohol abuse, and/or PTSD. He awoke in a worse mood on some days than others and on those days took Ativan upon waking. He reported having had suicidal thoughts through the years but no attempts and/or plans. He avoided people, was short tempered and easily frustrated at work, and was irritable at home. He lost no time from work during the previous year. The examiner opined that things seemed to have been the same since the previous examination; the Veteran's description did not suggest worsening ( noting that he did not receive treatment other than medication like Ativan, prescribed by his family physician). The diagnoses included chronic PTSD, cannabis abuse, and alcohol dependence in sustained full remission (3 years). The examiner opined that it is more likely than not that the cannabis use was both related to self-medication of anxiety and in part just for recreation, and it would be impossible to ascertain how much is related to symptoms of PTSD versus just for fun. The Veteran denied any psychosocial issues related to his cannabis use. The examiner opined that the alcohol addiction was likely partially responsible for his issues with his current marriage and difficulty with social support, as without substances he had been unable to rebuild a social structure likely due to PTSD symptoms, and it seemed his drinking helped him to socialize. The examiner was unable to determine if the drinking was due to PTSD without resort to speculation. The examiner opined that it appears reasonable based on the history and self-report that the Veteran had some issues prior to Vietnam as he had difficulty in school and family issues, although he denied drinking heavily prior to returning from Vietnam; this provided some evidence that made it difficult to rule out a connection between his drinking and self-medication from PTSD symptoms. The examiner found it notable that the Veteran had never attended any evidence based therapies for PTSD. A GAF of 55 was assigned. The examiner opined that it appeared the Veteran had experienced a worsening of symptoms when he discontinued alcohol use, however that was prior to the previous examination, and it appeared he had not worsened since then. The examiner opined that the Veteran's PTSD symptoms resulted in deficiencies in most areas including judgment (resorting to substance use rather than trying other means such as psychotherapy suggested some issues with judgment), family issues (noting that it was unclear how much family issues are related to his long history of substance use versus PTSD), work (his reported issues with getting along with people likely affected his ability to advance), and mood (he reported becoming easily irritated). At the March 2011 DRO hearing, the Veteran testified that he saw his daughters about once a year, and did not see any other family. He testified that he has one friend who comes over, and he enjoys riding his motorcycle. He testified that he does not like people, and has sleep difficulties, waking up in a cold sweat several times a week. He reported nearly daily flashbacks; but had not sought treatment for PTSD. At the October 2011 Board hearing, the Veteran testified that he hunted and fished with a friend after work. He testified that he woke up 3 to 4 times per night, sometimes with nightmares and sometimes in a cold sweat. He testified that he had road rage and irritability and kept to himself. His wife testified that he has no feelings, and does not discuss Vietnam because it worsens his symptoms. She testified that he does not see his mother or brother, who live nearby, and does not see his daughters or grandchildren unless they come to the house. She testified that he does not get along with his co-workers and is mostly isolated at work. She testified that they have no social activities. On October 2011 private psychological evaluation, the Veteran reported recurrent distressing memories of being in combat, frequent nightmares of combat, and night sweats. He reported having dissociative experiences triggered by smells, trash, and Asian people; cognitive disengagement with spacing out and being easily distracted; avoiding thoughts, people, or conversations that remind him of his combat stressors; hyperarousal, with frequent waking to check the windows and doors; irritability and frequent outbursts of anger; difficulty concentrating, increased hypervigilance, and exaggerated startle response; anxiety with episodes of panic disorder including intense fear, palpitations, chest pain, sweating, shortness of breath, and lightheadedness, with attacks occurring 8 to 10 times per week; and depressive symptoms including frequent sadness, depressed mood, and anhedonia. He preferred social isolation, and avoided social and family situations. He reported experiencing psychomotor retardation, sluggishness, and feelings of worthlessness, and difficulty concentrating or making decisions. He reported current thoughts of death but no suicidal ideation. He kept weapons close to his work station for quick defense. He reported a limited support system consisting of his wife of 30 years and a few friends. On mental status examination, the Veteran was fully oriented, alert, and generally cooperative, with appropriate expressions and mannerisms. His psychomotor activity was within normal limits but he appeared suspicious and slightly paranoid. His mood was "numb" and his affect appeared flat. His speech was relevant and appropriate in rate and volume. His thought processes were logical and coherent, with no evidence of any disturbance in form or content; hallucinations and delusions were not observed or reported. He appeared to have the ability to make reasonable decisions but may struggle with appropriate reactions under stress. He reported suicidal ideation on a weekly basis but denied any past attempts. His insight and judgment were considered impaired. His memory was unimpaired but his concentration was significantly impaired. The evaluating psychologist Dr. Crum opined that the Veteran's level of impairment in functioning was severe, with reports that his symptoms had interfered with his work, household chores and duties, relationships with friends and family, fun and leisure activities, sex life, general satisfaction with life, and overall level of functioning in all areas of his life. The diagnoses included chronic PTSD, severe recurrent major depressive disorder without psychotic features, generalized anxiety disorder, panic disorder without agoraphobia, secondary cannabis abuse, and alcohol dependence in sustained full remission. A GAF score of 45 was assigned. On May 2012 private evaluation, Dr. Crum opined that since being laid-off, the Veteran had become more reclusive and developed agoraphobic symptoms, and his use of cannabis had increased. He also increased his use of Ativan for anxiety to twice a day. He reported avoiding contact with his family, including not attending or acknowledging his daughter's nursing school graduation. Dr. Crum opined that the Veteran's ability to respond appropriately to supervision and coworkers in a work setting, and to pressure in a work setting, was markedly limited by his emotional issues, and he would have difficulty sustaining an ordinary routine without supervision. A March 2013 Social Security Administration (SSA) decision determined that the Veteran was not disabled due to pain in both knees, hearing loss, left wrist pain, PTSD, anxiety, and depression. On June 2016 VA examination, the Veteran reported generally good interpersonal functioning consisting of a positive relationship with his wife, and two good friends with whom he visited twice monthly. He visited with his daughters irregularly, which represented no significant change from the previous examination. He enjoying a relationship with one of his grandchildren, and took him fishing occasionally. He reported that he worked full time until 2013 when the plant was shut down, and he had not worked since then due to inability to find a job or work around many people. He reported difficulty with intrusion symptoms, recurrent traumatic nightmares, and occasional suicidal ideation. He reported an incident two years prior when he drank for the first time in 5 years and had to be airlifted to a trauma center; since that time, he had apathy, anhedonia, and loss of motivation, and he had an antidepressant prescribed. He reported episodes of psychosis, primarily auditory hallucinations. He denied symptoms consistent with mania/hypomania, obsessions/compulsions, and dissociation. His reported PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names/directions/recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, and suicidal ideation. On mental status examination, the Veteran had difficulty engaging with the examiner. He was well-groomed, cooperative, and attentive. His mood was "all right" and his affect was generally restricted. He was alert and fully oriented. His speech was normal in tone and rate, spontaneous and articulate. His thought process/content was coherent and relevant and without flights of ideas or disorganization. He showed no active delusional content and denied auditory or visual hallucinations. He denied suicidal and homicidal ideations. His working and remote memory appeared intact, and his insight and judgment were adequate. The diagnoses included PTSD and mild recurrent major depressive disorder. The examiner opined that the PTSD accounted for the Veteran's intrusion symptoms, avoidance behaviors, irritability, difficulty with feeling detached from others, restricted range of affect, decreased participation in significant activities, hypervigilance, exaggerated startle response, and sleep problems; and the major depressive disorder accounted for suicidal ideation, low mood, anhedonia, apathy, low motivation, anergia, auditory hallucinations, and feelings of hopelessness. The examiner opined that the Veteran's mental diagnoses cause occupational and social impairment with reduced reliability and productivity. The examiner opined that the Veteran's psychosocial functioning appeared to have declined significantly after the onset of major depressive disorder, noting that whereas he generally exhibited moderate impairment in functioning prior to 2014, after the incident precipitating major depressive disorder he has evidenced moderate-severe deficits in psychosocial functioning (particularly within the social domain). The examiner opined that the major depressive disorder is not caused by military-related stressors and is instead etiologically related to cardiovascular concerns. The current estimate of impairment in psychosocial functioning was that it was moderate. Additional VA treatment records throughout the appeal period reflect symptomatology largely similar to that described on the examinations above. The Board finds that throughout the appeal period, the Veteran's PTSD is reasonably shown to have resulted occupational and social impairment with deficiencies most areas, consistent with a 70 percent rating (rather than the 50 percent rating which has been assigned). Although the 2009 VA examiner assigned a GAF score of 55 (consistent with moderate symptoms and a 50 percent rating), that examiner also opined that the Veteran's PTSD symptoms resulted in deficiencies in most areas including judgment, family issues, work, and mood, (which is most consistent with a 70 percent rating). The Board has no reason to question the VA examiner's competence in opining that the Veteran's symptoms cause impairment with deficiencies in most areas. At both hearings, the Veteran and his wife testified that he has limited contact with family and one close friend, and avoids people in general. The October 2011 evaluating psychologist, Dr. Crum, opined that the Veteran's level of functional impairment was severe, with reports that his symptoms interfered with work, relationships with friends and family, general satisfaction with life, and overall level of functioning in all areas of his life; the psychologist assigned a GAF score of 45, which is consistent with serious symptoms. In May 2012, Dr. Crum, further opined that the Veteran avoided contact with his family, and his abilities to perform in a work setting would be is markedly limited due to his emotional issues. The Board has no reason to question the private examiner's competence in finding that the Veteran's PTSD is severe in intensity (and by inference causes substantial functional impairment). While the 2016 VA examiner identified the level of functioning found as one of reduced reliability and productivity (consistent with a 50 percent rating), the Board finds that symptoms and the degree of functioning described have remained essentially consistent throughout. The disability picture presented throughout is one of flat affect, depressed mood, and general isolation/withdrawal from society. The Board finds no reason to question the credibility of the Veteran's own accounts; his reports of functional impairment are consistent with the disability picture presented by findings and opinions of VA and private examiners. As the functional impairment due to PTSD described/shown throughout meets (or at least approximates) the schedular criteria for a 70 percent rating), the Board finds that (with resolution of reasonable doubt in his favor, as mandated) such rating is warranted throughout. See 38 C.F.R. §§ 4.3, 4.7. The evidence of record does not show that symptoms of the Veteran's PTSD have been productive of total occupational and social impairment. Despite his consistent reports of isolation and withdrawal, he continues to tend to activities of daily living and financial matters on his own, and he has not shown gross impairment in thought processes, communication, or behavior. Furthermore, he has maintained good relations with his wife and a close friend, and he has enjoyed riding motorcycles and fishing with his grandchild. On the most recent examination it was noted that his memory was intact, and his insight and judgment were adequate. The symptoms and level of impairment represented by the GAF scores assigned likewise do not reflect total occupational and social impairment. Consequently, the Board finds that a schedular 100 percent rating is not warranted for any period of time under consideration. 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, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). An unappealed August 2017 rating decision denied a TDIU rating. ORDER A 70 percent rating is granted for the Veteran's PTSD for throughout the period under consideration, subject to the regulations governing payment of monetary awards. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs