Citation Nr: 1752529	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  13-26 582	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to a higher evaluation in excess of 30 percent for service connected posttraumatic stress disorder (PTSD) with depression, effective October 24, 2008.  

2. Entitlement to a higher evaluation in excess of 20 percent for service connected diabetes mellitus, type II, effective December 24, 2008.  


REPRESENTATION

Appellant represented by:	Michael J. Brown, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Y. Taylor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1993 to April 1998 and from January 2002 to October 2008.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  Subsequently, the jurisdiction of this appeal has been transferred to the RO in St. Petersburg, Florida.  

The Veteran testified before the undersigned Veterans Law Judge during an August 2016 videoconference hearing; a transcript is of record. 

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.  Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record.  

At the hearing before the undersigned, along with the dismissal set forth below, the Veteran indicated that he was satisfied with the total disability rating that had been assigned effective January 2011.  As such, no issue of a total rating is before the Board as part of this appeal.


FINDINGS OF FACT

1. At the August 2016 videoconference hearing, the Veteran's representative withdrew the Veteran's appeal pertaining to the claim of entitlement to a higher evaluation in excess of 20 percent for service connected diabetes mellitus, type II, effective December 24, 2008.

2. It is as likely as not that the Veteran has experienced suicidal ideation; near-continuous depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances (including work setting); inability to establish and maintain effective relationships, resulting in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood.  The Veteran reported to have no hallucinations, gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting self or others.  Further, the Veteran does not suffer from disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  


CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to a higher evaluation in excess of 20 percent for service connected diabetes mellitus, type II, effective December 24, 2008 have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 

2. With resolution of reasonable doubt in the Veteran's favor, the criteria for a disability rating of 70 percent rating, but no higher, for PTSD have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Withdrawal

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the Veteran or by his or her authorized representative.  38 C.F.R. § 20.204.  At the August 2016 videoconference hearing, the Veteran's representative withdrew the Veteran's appeal pertaining to the claim of entitlement to a higher evaluation in excess of 20 percent for service connected diabetes mellitus, type II, effective December 24, 2008.  Hence, there remain no allegations of errors of fact or law for appellate consideration on this issue.  Accordingly, since the Board does not have jurisdiction to review the issue, it is dismissed.

II. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).  If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied.

Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C. § 5103 (a), have been met.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claim is not necessary.  

VA has made reasonable efforts to assist the appellant by obtaining relevant records which he has adequately identified.  This includes securing service, VA, and private treatment records and providing adequate VA examinations.  The Veteran was notified and is aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness in adjudicating his increased rating claim.  38 C.F.R. § 3.159 (c) (2017). 

II. Increased Rating for PTSD

Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities in 38 C.F.R. Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 

The veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2017).

PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, and is subject to the criteria of the General Rating Formula for Mental Disorders that provide for the following: 

A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  

To demonstrate entitlement to a 70 percent evaluation, the evidence must show
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 worker a work like setting); inability to establish and maintain effective relationships.

Entitlement to a 100 percent scheduler evaluation is warranted where there are such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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, Diagnostic Code 9411 (2017).

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 the examination.  See 38 C.F.R. § 4.126 (a) (2017).  Furthermore, 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) (2017).  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 (2017).

The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002).  Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned."  Id.  The Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level.").

For ongoing claims prior to August 4, 2014, one factor in evaluating psychiatric disorders was the global assessment of functioning score scale (GAF).  The scale was meant to represent psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV)).  Because this case was pending before the effective date of the regulatory change, the Board may consider the several global assessment of functioning scores assigned by VA examiners and other mental health personnel.  See 79 Fed. Reg. 45,093-02, 45,094 (August 4, 2014).

Under DMS-IV, the GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  Carpenter v. Brown, 8 Vet. App. 240 (1995).  Pertinent to this case, GAF scores ranging from 61 to 70 indicate that a veteran has some mild psychiatric symptoms (e.g., depressed mood and mild insomnia) or experiences some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household); however, the veteran is found to generally be functioning pretty well and has some meaningful interpersonal relationships.  GAF scores ranging from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co-workers).  GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job).  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.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1) (2017).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2) (2017).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (2012) ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran has been afforded VA examinations in September 2009 and September 2010.  

In September 2009, the Veteran underwent an initial evaluation for PTSD.  It has been noted that the Veteran was treated for a mental disorder between March 2008 and May 2008 and then February 2009 to May 2009, specifically for adjustment disorder with depressed mood, mood disorder, depressive disorder, and PTSD.  He reported that he had been prescribed medications in service and continued with that medication to the present.  He had been married for 17 years with 3 sons and 2 step-daughters.  At the time, he had been employed as a retail specialist at an auto parts store for less than one year.  Reported symptoms are:  recurrent distressing dreams of the event; efforts to avoid thoughts, feelings, or conversations associated with the trauma, efforts to avoid activities, places, or people that arouse recollections of the trauma, feeling of detachment or estrangement from others; difficulty falling or staying asleep; and hypervigilance.  A GAF score of 65 was assigned.  

An April 2010 VA psychiatric note shows that the Veteran indicated continued desire to avoid people and felt ambivalent about going to motorcycle mechanics school because he would have to be around unfamiliar people.  

A May 2010 VA psychiatric note indicates that the Veteran reported symptoms of depression as a result of a recent increase in stress related to family arguments.  The Veteran reported that he had been short-tempered with his wife and he was verbally abusive about one month ago.  His son witnessed the altercation.  His wife left the Veteran then.  A GAF score of 50 was assigned.  

In September 2010, the Veteran underwent a VA examination to evaluate his claim of entitlement to an increased rating for his PTSD.  The examiner noted that the Veteran described significant functional impairment associated with his PTSD.  The examiner reported that the Veteran did little to assist in the household in which he resided and sat home all day watching television.  The Veteran reported that he had conflicts with co-workers in his work situation approximately twice per week.  He would exchange angry words including profanity with co-workers and sometimes with superiors.  He also reported that he would make mistakes and forget to do things because of his impaired concentration associated with PTSD.  

Specifically, he stated that he sometimes forgot to put things back together and actually had axel come out of a truck in a motor pool because of his impaired concentration.  He also described that his PTSD affected his relationship with his wife.  He did not express love towards her, but instead snapped and yelled at her.  He was easily irritated by his wife.  He reported that his PTSD affected his relationship with his children, resulting in an incident of physical aggression towards his child, which was prevented by his wife and other kids and did not result in injury to the child.  He did not have any friends because he did not trust anyone.  He experienced road rage; he screamed and cursed out the window at other drivers approximately twice per week because close encounter by a car reminded him of convoy situations in Iraq.  

The examiner assigned a GAF score of 50.  The Veteran denied alcohol or drug use.  The Veteran further reported that he had verbal conflicts once or twice per week with his coworkers and sometimes with superiors.  Although these conflicts did not escalate to physical fighting, they lasted until he left service and happened once or twice per week.  He reported that he made mistakes and forgot tings associated with his impaired concentration from PTSD.  The Veteran reported that he did not feel like talking with people.  He felt worthless because he was not working.  He reported having suicidal thoughts approximately twice per week.  He thought that he might want to have a car hit him while he was driving, but he did not have any thoughts or impulses to cause an accident.  He also reported having on one or two occasions thoughts of shooting himself in the head - these thoughts occurred most recently one and a half weeks ago.  Although the Veteran admitted having angry thoughts, he did not have homicidal ideation.  

In a November 2010 VA mental health outpatient note, it is reported that the Veteran felt "kind of down" and continued to isolate himself in order to decrease anxiety and irritability.  He had problem with his wife because she was tired of dealing with the Veteran's irritability, anger, and social isolation.  Noted symptoms are: intrusive recollection of Iraq, nightmares, flashbacks, anger/irritability, depressed mood, avoidance, difficulty initiating and sustaining sleep, hypervigilance, exaggerated startle response, low energy, anhedonia, concentration difficulties and social withdrawal.  A GAF score of 51 was assigned.  

The Veteran's symptomatology more nearly approximates the 70 percent criteria because the record summarized above indicates that he suffered from suicidal ideation; near-continuous depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances (including work setting); inability to establish and maintain effective relationships, resulting in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood.  While he was employed during part of the time, he apparently had conflicts with co workers.

Here, the evidence demonstrates that the Veteran had suicidal ideation.  His marital and family problems caused him depression affecting his ability to function appropriately and effectively.  His problems with coworkers and superiors, which started while he was in service, indicate that he had difficulty in adapting to stressful circumstances at work.  He seems unable to establish and maintain effective relationships with his wife and his children.  All those difficulties and problems that the Veteran experiences due to his PTSD have resulted in his lack of motivation to work and form effective social relationships.  Lastly, the Veteran was consistently assigned GAF score of 50.  As noted above, GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job).

Therefore, after carefully reviewing the extensive VA clinical data pertaining to the Veteran's service-connected PTSD and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for the 70 percent evaluation for PTSD have been met.  38 C.F.R. § 4.130, Diagnostic Code 9411 (2017); 38 U.S.C. § 5107 (2014) ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

However, the Veteran's symptomatology does not meet the criteria for the 100 percent disabling.  The evidence shows that the Veteran has no hallucinations, gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting self or others.  Further, the medical records on file demonstrate that the Veteran does not suffer from disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  

In conclusion, the evidence demonstrates that it is as likely as not that the Veteran's PTSD symptoms are fully and appropriately addressed by the criteria for a 70 percent rating, but there is no suggestion that the Veteran suffered from any of the symptoms listed in the 100 percent criterion.  Therefore, a 100 percent rating for PTSD is not warranted.  38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 



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ORDER

The claim of entitlement to a higher evaluation in excess of 20 percent for service connected diabetes mellitus, type II, effective December 24, 2008 is dismissed. 

Entitlement to an evaluation of 70 percent, but no higher, for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs