Citation Nr: 1753054 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-34 104A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to a higher initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from March 28, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran (Appellant); the Veteran's spouse ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from February 1967 to September 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from October 2012, June 2014, and July 2017 rating decisions of the RO in Detroit, Michigan. In November 2015, the Veteran provided testimony from Detroit, Michigan, before the undersigned Veterans Law Judge, who was seated in Washington, DC, during a Board videoconference hearing. The hearing transcript has been associated with the record. This case was previously before the Board in February 2016, where the Board, in pertinent part, denied an initial rating in excess of 50 percent for PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently the Veteran's representative and the Secretary of Veterans Affairs agreed to a Joint Motion for Remand in September 2016 that vacated the Board's February 2016 decision. In compliance with the Court's order, a January 2017 Board decision, in pertinent part, remanded the initial rating for PTSD issue to request private treatment records identified during the November 2015 Board hearing. See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that forms the basis of the Joint Motion for Remand). Pursuant to the January 2017 remand instructions, correspondence was sent to the Veteran in February 2017 asking him to submit any outstanding private treatment records with respect to treatment for PTSD or the appropriate authorizations for VA to obtain the records on his behalf. No response to the February 2017 correspondence or additional private treatment records has been received. As such, the Board finds there has been substantial compliance with the January 2017 Board remand orders. See Stegall v. West, 11 Vet. App. 268, 271(1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). FINDING OF FACT For the entire initial rating period on appeal from March 28, 2012, the service-connected PTSD has not been manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for the service-connected PTSD have not been met or more nearly approximated for any part of the initial rating period from March 28, 2012. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims and Assistance Act of 2002 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the PTSD rating question arises from disagreement with the initial rating following the grant of service connection, no additional notice is required regarding this downstream rating element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have similarly held regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3159(b)(2) (no VCAA notice required because of filing of notice of disagreement). VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, VA treatment records, VA examination reports, and lay statements. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C. § 5103A ; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran received VA examinations in September 2012 and April 2017. The VA examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The September 2012 and April 2017 VA examination reports reflect that the VA examiner reviewed the record, conducted an in-person examination, and rendered the requested opinions and rationale. Further, and as discussed above, pursuant to the January 2017 remand instructions, correspondence was sent to the Veteran in February 2017 asking him to submit any outstanding private treatment records with respect to treatment for PTSD or the appropriate authorizations for VA to obtain the records on his behalf. No response to the February 2017 correspondence or additional private treatment records has been received. As the Board has taken appropriate steps to obtain any potentially outstanding private treatment records, the Board does not find remand to once again ask the Veteran to provide the appropriate releases and/or to submit the relevant records is warranted. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street). All relevant documentation, including VA treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Higher Initial Rating for PTSD Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The General Rating Formula provides that a 70 percent rating will be assigned for 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. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular rating contemplates 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. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the 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 his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appels for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." 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." It was further noted that "§ 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." In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). A GAF score of 21 - 30 indicates "Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends)." A GAF score of 31 - 40 indicates "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 younger children, is defiant at home, and is failing at school)." A GAF score of 41-50 indicates "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)." A GAF score of 51-60 indicates "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 score of 61-70 indicates "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." The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See Richard, 9 Vet. App at 267; Carpenter v. Brown 8 Vet. App. 240, 243 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue. The GAF score must be considered in light of the actual symptoms of a veteran's disorder as they reflect on the degree of occupational and social impairment, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2017). The Veteran contends generally that the service-connected PTSD has been manifested by more severe symptoms and impairment than contemplated by the 70 percent disability rating assigned from March 28, 2012. See October 2013 notice of disagreement. Specifically, at the November 2015 Board videoconference hearing, the Veteran testified that he was easily angered, vulnerable to mood swings and panic attacks, and only trusted his wife. After a review of the lay and medical evidence, the Board finds that, for the rating period on appeal from March 28, 2012, the severity of psychiatric symptoms do not cause total occupational and social impairment as described for a higher 100 percent rating under Diagnostic Code 9411. See 38 C.F.R. § 4.130. A review of the relevant lay and medical evidence, including the VA treatment records, the September 2012 and April 2017 VA examination reports, as well as the Veteran's lay statements, does not reveal that the Veteran has experienced total occupational and social impairment for the rating period from March 28, 2012. Specifically, the September 2012 VA examination report reflects that the Veteran reported being married, staying in touch with family, recent participation in a golf league, work at the post office for approximately 30 years until retiring in 2004, and, thereafter, working as a bus driver and supervisor for the city bus system until "fully retiring" in March 2012. See September 2012 VA examination report. On examination, the September 2012 VA examiner assessed depression, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. The September 2012 examination report also reflects that the VA examiner did not discern any suicidal ideation, persistent delusions or hallucinations, persistent danger of hurting self or others, disorientation to time or space, the inability to establish and maintain effective relationships, impaired judgment and/or abstract thinking, obsessive rituals that interfere with routine activities, and/or near continuous panic or depression affecting the ability to function independently, appropriately, and effectively. The April 2017 VA exanimation report reflects that the VA examiner assessed chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships. The April 2017 VA examiner also opined that the PTSD manifested as occupational and social impairment with reduced reliability and productivity. At the November 2015 Board hearing, the Veteran testified to only trusting his wife, that he was susceptible to mood swings, and that did not like to "go out" or socialize. See November 2015 hearing transcript p. 20. The Veteran also testified that he retired from the post office after approximately 30 years of employment, was currently receiving retirement benefits, and accepted post-retirement employment as a city bus driver in a "supervisory capacity" for approximately six or seven years. See November 2015 hearing transcript. The Veteran denied experiencing recurrent suicidal and/or homicidal thoughts. Based on the above, the Board finds that, for the entire rating period on appeal from March 28, 2012, the level of occupational and social impairment due to PTSD symptoms have not met or more nearly approximated the criteria for a higher 100 percent disability rating. See 38 C.F.R. § 4.130. For the rating period on appeal from March 28, 2012, the record does not indicate total occupational and social impairment. The evidence does not show symptoms suggestive of total occupational and social impairment, such as gross impairment in thought processes or communication, persistent delusions, 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, as required for a 100 percent disability rating under Diagnostic Code 9411. See September 2012, April 2017 VA examination reports; see also November 2015 Board hearing transcript. For these reasons, the weight of the competent and probative lay and medical evidence of record is against a rating in excess of 70 for service-connected PTSD from March 28, 2012. Because the preponderance of the evidence is against a higher rating, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Referral Consideration The Board has considered whether the Veteran or the record has raised the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) for the PTSD issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); Thun v. Peake, 22 Vet. App. 111 (2008). After review of the lay and medical evidence of record, the Board finds that the question extraschedular rating has not been made by the Veteran or raised by the record for any period on appeal. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Cf. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) (holding that the Board must address whether referral for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) "only when that issue is argued by the claimant or reasonably raised by the record"). Finally, in adjudicating the current appeal for a higher rating, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), which held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) may be part of a rating issue when the TDIU claim is either expressly raised by a veteran or reasonably suggested by the record. In this case, as distinguished from the facts in Rice, a July 2017 rating decision granted TDIU effective March 28, 2012. Should the Veteran disagree with the effective date assigned for the TDIU, he should file a notice of disagreement within one year of the July 2017 rating decision. ORDER A higher initial disability rating in excess of 70 percent for PTSD is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs