Citation Nr: 1752941 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-04 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Ryan C. Farrell, Agent ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had honorable active duty service from August 1966 to February 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned an initial 50 percent rating effective November 16, 2010. The initial rating was subsequently increased to 70 percent, also effective November 16, 2010, in a December 2013 rating decision. This appeal ensued. The February 2013 rating decision also denied claims for service connection for coronary artery disease, hypertension, type II diabetes mellitus, and peripheral neuropathy of the bilateral upper and bilateral lower extremity. The Veteran appealed the denial of these claims, which were subsequently granted in a November 2016 rating decision. As such, they are no longer before the Board for appellate review. FINDING OF FACT The Veteran's PTSD has not been manifested by total social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent have not been met for PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection was established for PTSD in the February 2013 rating decision that is the subject of this appeal. An initial rating of 50 percent was assigned effective November 16, 2010, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating was increased to 70 percent, also effective November 16, 2010, in a December 2013 rating decision. The Board notes that the Veteran has been in receipt of a 100 percent combined rating and special monthly compensation (SMC) based on schedular housebound benefits throughout the entire appellate period. See March 2015 and November 2016 rating decisions. Pursuant to the General Rating Formula for Mental Disorders, a 70 percent evaluation contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 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. 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). The record also contains Global Assessment of Functioning (GAF) scores assigned by clinicians, which reflect the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240 (1995). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV) with the fifth edition of the DSM (DSM-5). See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45099 (effective Aug. 4, 2014). Although DSM-5 does not use GAF scores to assess functioning, the DSM-IV was in effect at the time the GAF scores were assigned. Thus, the Board will consider the GAF scores of record in evaluating the Veteran's occupational and social functioning. However, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is not determinative of the VA disability rating to be assigned. See Carpenter v. Brown, 8 Vet. App. 240 (1995). The percentage evaluation is based on all of the evidence that bears on occupational and social impairment. Id; see also 38 C.F.R. § 4.126. The Veteran initially asserted that he was entitled to an initial rating in excess of 50 percent because he met the criteria for a 70 percent evaluation, and specifically cited the criteria to support a 70 percent rating without elaborating on symptoms specific to him. See March 2013 notice of disagreement. He later asserted he was entitled to an initial rating in excess of 70 percent because VA medical records dated April 18, 2013 support a finding that his treating psychologist assessed the severity of the Veteran's PTSD with a GAF score of 35, which correlates with a 100 percent disability rating. The medical evidence in this case consists of VA treatment records and several VA examination reports. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Upon review of the record, the Board finds that the preponderance of the evidence does not support the assignment of an initial rating in excess of 70 percent for PTSD at any time during the period of the appeal. The Board acknowledges the fact that the Veteran's VA psychologist consistently assigned a GAF score of 35 throughout the appeal period, and that the October 2012 VA examiner assigned a GAF score of 56. In pertinent part, a GAF score of 31 to 40 indicates 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) while scores ranging from 51 to 60 represent 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). The Board notes that GAF scores consistent with the 100 percent rating criteria would be below 31. In this regard, a GAF score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). The Board has considered the assignment of the GAF scores in conjunction with the subjective symptoms reported by the Veteran and with the objective evidence of record as reflected in VA treatment records and the VA examination reports. The evidence of record, however, does not reveal that the Veteran had gross impairment in thought processes or communication; or persistent delusions or hallucinations. Rather, his treating psychologist consistently reported that thoughts were within normal limits. Although the Board acknowledges that the December 2013 VA examiner reported that thought processes were notable for themes of frustration and depression, the examiner also stated that they were logical and goal-directed for the most part and thought processes were logical and goal directed during the October 2012 and June 2016 VA examinations. The Veteran also routinely denied psychotic symptoms during VA examination and his treating psychologist consistently reported the absence of evidence of hallucinations, delusions, or paranoid ideation. In addition, the Veteran's speech was consistently fluent, with rate, volume and intonation consistent with affect during the three VA examinations of record; it was also reported to be clear when seeking non-mental health VA treatment. The evidence of record also does not reveal that the Veteran had disorientation to time or place; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); memory loss for names of close relatives, own occupation, or own name; or that he exhibited grossly inappropriate behavior or was in persistent danger of hurting others. Rather, the Veteran was noted to be cooperative and not unpleasant to interact with during the October 2012 VA examination, was reportedly generally cooperative during the December 2013 VA examination, and appeared to cooperate to the best of his ability during the June 2016 VA examination. The Veteran was well oriented during the December 2013 and June 2016 VA examinations, his treating psychiatrist consistently noted that he was oriented as to person, place and time, and the Veteran was also reported to be oriented when seeking non-mental health VA treatment. In addition, the Veteran has also been able to perform activities of daily living, such as preparing his own meals, cleaning, and shopping, doing all three for a neighbor he helped out, although he indicated he often neglected to clean his apartment at the time of the June 2016 VA examination. He was also able to take care of a pet parrot. The Veteran was also described as casually dressed and groomed during VA examination, although he was noted to be overweight during the December 2013 and June 2016 VA examinations, he smelled slightly at the time of the December 2013 VA examination, and his beard was untrimmed in December 2013 and June 2016. In addition, only mild memory loss was noted during the June 2016 VA examination, the Veteran's treating psychologist consistently reported that memory was within normal limits, and memory was reportedly good when the Veteran sought non-mental health VA treatment. Finally, although the Veteran reported during the December 2013 VA examination that he feared an argument might escalate to violence, he denied any violent thoughts directed at specific individuals and indicated that he wanted to avoid any potential for fighting or other violent behavior. While the Board acknowledges the Veteran's report during the June 2016 VA examination that he had been involved in many confrontations, including a confrontation the year prior that resulted in the Veteran being assaulted and suffering a broken wrist, he did not report having been arrested for any violent behavior. Moreover, the Veteran's treating psychologist consistently reported that there was no evidence of homicidal ideation or plan. The Board acknowledges that the Veteran's VA treating psychologist repetitively included an opinion in the treatment notes that the Veteran could no longer sustain effective social relationships as a result of his PTSD. This determination appears to be based on the Veteran's report when seeking treatment that he had no social life due to all of his PTSD symptoms; however, the Veteran described various social interactions during VA examination, to include regular visits from another Veteran who lived in the same apartment complex; watching football or other sporting events with friends from his apartment complex, who were all Vietnam Veterans; having a female friend next door; helping out a female neighbor, who also gave him rides; and assisting an elderly female friend with her meal preparation, cleaning and shopping. Review of non-mental health VA treatment records also reveal that the Veteran reported having a girlfriend in September 2011, reported the recent death of a close friend in October 2014, and listed a female friend as his emergency contact and was discharged to home with a friend during a July 2015 VA admission. In addition, while the Board acknowledges that the Veteran had been separated from his wife for a lengthy period of time, the separation was reportedly based on her change in sexual preference and he had also reportedly partially reconciled with her in the months prior to the June 2016 VA examination, to include supporting her financially and through illness. While the Board also acknowledges that the Veteran had no contact with his only daughter, and that he denied having any children at the time of the June 2016 VA examination, he reportedly had occasional contact with a sister and had recently reestablished contact with her after a period of estrangement. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 70 percent for the Veteran's PTSD. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial rating in excess of 70 percent for PTSD is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs