Citation Nr: 1753250 Decision Date: 11/20/17 Archive Date: 12/01/17 DOCKET NO. 14-04 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating in excess of 50 percent from May 28, 2009 to February 7, 2017, excluding the period from April 6, 2015, to June 1, 2015, and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) The Board remanded the issues on appeal for additional development in May 2016. In a July 2015 rating decision, the Veteran was granted a temporary evaluation of 100 percent effective April 6, 2015, through June 1, 2015 due a hospitalization related to the symptoms of his service-connected PTSD pursuant to 38 C.F.R. 4.29 (2017). Additionally, an April 2017 rating decision granted the Veteran an increased rating of 70 percent disabling for PTSD effective February 7, 2017. As such, the issue on appeal has been recharacterized. The Veteran and his spouse testified at a March 2016 video conference hearing before the undersigned Veterans Law Judge (VLJ) FINDINGS OF FACT 1. From May 28, 2009, to June 1, 2015, excluding the period from April 6, 2015, to June 1, 2015, the Veteran's PTSD symptomatology more nearly approximated occupational and social impairment with reduced reliability and productivity. 2. Since June 1, 2015, the Veteran's PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, but less than total social and occupational impairment. CONCLUSIONS OF LAW 1. From May 28, 2009, to June 1, 2015, excluding the period from April 6, 2015, to June 1, 2015, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code 9411 (2017). 2. From June 1, 2015, to February 7, 2017, the criteria for a disability rating of 70 percent, but no greater, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). 3. Since February 7, 2017, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in June 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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 duty to assist argument). As the Veteran has been afforded a VA examination, the Board finds there has been substantial compliance with its May 2016 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.) Accordingly, the Board will address the merits of the claim. II. Increased Rating for PTSD Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for 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. Id. 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 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A GAF (Global Assessment of Functioning) score is a scale reflecting the 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 Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). This is more commonly referred to as DSM-IV. A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). A GAF of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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 of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) 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 indicative of 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. A GAF of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. For the Period From May 28, 2009, to June 1, 2015 In a November 2008 VA psychological consultation, the Veteran reported having thoughts about death or suicidal ideation, but denied any current suicidal ideation, plan, or intent. The practitioner found the Veteran to be a low risk for self-harm. The Veteran was assessed with a GAF of 60. In his May 2009 claim, the Veteran stated he had experienced severe coping issues since November 2008 that had resulted in an adverse impact on his work, family, and personal life. He reported that he was able to work at home, but had increasing difficulty with concentration and asserted that he was experiencing frequent daytime panic attacks. He also reported night terrors and sleep disturbances every night. The Veteran underwent VA examination in July 2009. During the examination, the Veteran reported a great relationship with his wife, but denied any other social relationships. He stated that his activities were limited to church attendance. He reported getting easily distracted. The Veteran reported that he experienced irritability or outbursts of anger, but did not report any periods of violence. The examiner opined that the Veteran's PTSD symptoms, including hypervigilance, avoidance behaviors, and an exaggerated startle response, resulted in reduced reliability and productivity. The examiner assessed a GAF of 55. In a December 2009 letter, the Veteran's wife reported that the Veteran slept on the edge of the bed, and if he heard noises in the night had to get up to "check the perimeter." She stated that his anxiety had increased and his ability to concentrate had gotten worse. The Veteran, according to his wife, reacted strongly to helicopter and airplane engines, stopping to "check it out" anytime he heard them. In VA treatment records dated in February 2011, March 2011, and April 2011, a VA psychologist reported that the Veteran's PTSD was likely impairing his ability to function effectively in his job. In a March 2012 VA examination reported, a VA examiner opined that the Veteran's level of impairment was best described as occupation and social impairment with reduced reliability and productivity the Veteran. The Veteran reported that he had been married for over 40 years. He stated that is "had been a struggle." The Veteran reported that he had a "pretty good" relationship with his three children, and had some contact with his siblings. He also reported having friends at church. At the time the Veteran was working full-time at a company, which he had been with for about eight years. The Veteran denied significant occupational functioning problems. At the time of the examination, the Veteran did not endorse any symptoms described in the 70 percent rating criteria. He was given a GAF of 52. The Veteran was afforded a VA examination in October 2013. In pertinent part, the examiner reported that the Veteran experienced suicidal ideation, with a past attempted suicide in 1994. The examiner opined that the Veteran's level of impairment was best described as occupation and social impairment with reduced reliability and productivity, noting that the Veteran could easily decompensate to total occupational impairment, but stating that the Veteran was resilient. The Veteran testified at a hearing before a VA Decision Review Officer (DRO) in November 2013. The Veteran reports his symptoms as nightmares, sleep disturbance, an exaggerated startle response, and flashbacks. He stated that his productivity at work had suffered due to his symptoms. He testified that he was experiencing frequent suicidal ideation and had days during which he neglected his personal appearance. Otherwise, in VA treatment record dated from February 2010 to March 2015, the Veteran was consistently observed to be neatly groomed and cooperative. His speech typically had a normal rate, tone, and volume. His mood was often depressed. His affect ranged from appropriate to dysphoric. His thought process was linear and his thought content showed no overt psychosis. He consistently denied any perceptual disturbances. His motor functions were within normal limits. He was alert and attentive, generally oriented in all measures. His judgment was intact and his insight was present. The Veteran expressed feelings of hopelessness about the future but, except as noted above, reported he had not had suicidal thoughts and denied any plan to commit suicide. Upon careful review of the evidence of record the Board finds that from May 28, 2009, to June 1, 2015, excluding the period from April 6, 2015, to June 1, 2015, the preponderance of the evidence is against a rating in excess of 50 percent, as the weight of the evidence is against a finding that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The evidence of record does not show that the Veteran's psychiatric disability was manifested by symptoms such as 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); neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. Id. During the period on appeal the Veteran occasionally reported having suicidal ideation. See November 2008 VA treatment records, October 2013 VA examination report, and November 2013 DRO hearing transcript. However, VA treatment records show that while he generally expressed feelings of hopelessness about the future, he consistently denied having any suicidal ideation. The Veteran has also asserted that his symptoms have affected his ability to work, reporting that he experienced daytime panic attacks. Indeed, in VA treatment records from February to April 2011, a VA psychologist noted that the Veteran's PTSD had a likely impact on his job effectiveness. The October 2013 VA examiner noted that the Veteran "could easily decompensate to total occupational impairment;" however, there is no evidence that this was the case during the period on appeal. As noted above, the Veteran also reported that he was working full time, and denied any significant occupational functioning problems. Therefore, while the Veteran's symptoms certainly had an effect on his work performance, there is no evidence that he experienced "near continuous" panic attacks that affected his ability to function independently, appropriately, and effectively. During the November 2013 DRO hearing, the Veteran indicated that he neglected his appearance on some days. However, his report is contradicted by numerous VA treatment records in which the Veteran is described as neatly groomed. Additionally, the Veteran described a great relationship with his wife, though he reported that it had been a struggle. He likewise reported a good relationship with his three children, and having friends at church. Thus, there is no evidence that the Veteran's disability resulted in an inability to establish and maintain effective relationships during the relevant period on appeal. Further, the Board finds persuasive that the July 2009, March 2012, and October 2013 VA examiners each found that the Veteran's symptoms resulted in occupation and social impairment with reduced reliability and productivity, in line with a 50 percent disability rating. Finally, while not dispositive, the Veteran was generally assessed with a GAF score of 50, indicative of serious symptoms. However, the symptoms otherwise described in the evidence of record do not meet the criteria for a 70 percent rating. In summary, the evidence of record shows that a disability rating of 50 percent, but no higher, is warranted for the Veteran's PTSD. A 50 percent disability rating during this period contemplates the severity, frequency, and duration of the Veteran's PTSD symptoms and is based on all of the evidence of record. See 38 C.F.R. § 4.126(a). However, while the Board acknowledges that the Veteran has exhibited factors such as suicidal ideation and anxiety, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran's symptoms appear consistent with no more than occupational and social impairment with reduced reliability and productivity. Thus, the criteria for a finding of a 70 percent evaluation or higher are not met during this period, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). For the Period Since June 1, 2015 An April 2015 VA treatment record, although created during the period for which a temporary total rating has been assigned, is pertinent for context. In April 2015, while being treated in a VA inpatient facility, the Veteran reported that he had engaged in self-harm. He stated that he cut himself on his arms, legs, or hands one to two times per week until he bled. The Veteran stated that doing so reduced his anxiety and gave him a great sense of relief. Since that time the Veteran has regularly reported episodes of suicidal ideation, thoughts of cutting himself, or actually cutting himself. See, e.g.¸VA treatment records dated in June 2015, July 2015, September 2015, November 2015, January 2016, February 2016, March 2016; April 2016, July 2016, October 2016, November 2016, and January 2017, February 2017, March 2017, April 2017. Importantly, while the Veteran has engaged in self-harm behaviors, there is no indication in the record that the Veteran's actions during the period on appeal have been attempts to commit suicide. As evidenced in the records referenced above, despite endorsing suicidal ideation, the Veteran has consistently denied any plan or intent to do so. Moreover, during a February 2017 examination the Veteran reported a history of intermittent suicidal ideation without intent or plan, and specifically denied any suicide attempts since his last VA examination. During a March 2016 video conference hearing the Veteran testified that he was being treated in weekly one-on-one therapy sessions. He reported daily flashbacks, stating that he would "just go blank" and not know where he was or where he was going. He indicated that he had significant memory loss. He testified that he went to church and was fine so long as he sat on the side where there were fewer people. The Veteran reported an increase in his symptoms around the anniversary of the Tet Offensive, experiencing especially sleepless nights, nightmares, hypervigilance, and constant bad memories. The Veteran's wife testified that the Veteran had abnormal sleeping patterns, waking throughout the night and experiencing nightmares. She reported that the Veteran showed anger toward her if she confronted him about things. The Veteran's wife stated that the Veteran's memory had worsened and he needed to write things down or he would forget. She also stated that if the Veteran heard a helicopter he would stop and listen to them In an April 2016 VA mental health psychological assessment, the Veteran described himself as generally "happy-go-lucky" and easy going, but occasionally getting into "dark places." The Veteran reported making one suicide attempt 20 years prior. He also described three prior instances in which he almost made attempts, but chose not to because of how upsetting it would be to his wife. He reported a history of cutting on a regular basis, but that he had not cut in three to four months. He further reported a recent incident in which a man had grabbed his shoulder and the Veteran impulsively "chopped" the man in the throat. The Veteran reported experiencing a number of dissociative experiences and felt that at times he was not in touch with reality. He reported that sometimes he will "blank out or black out" while driving down a road and he will forget where he is and where he is going. The Veteran was afforded a VA examination in February 2017. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran experienced mild memory loss, such as forgetting names, directions or recent events. The Veteran reported a history of intermittent suicidal ideation, but no intent or plan and no suicide attempts since his last VA examination. Regarding hallucinations, the Veteran reported that he occasionally thought he heard his wife calling when she had not. The examiner opined that the Veteran's social and occupational functioning were considered at least as likely as not to be moderately to severely impaired. She noted that the Veteran may experience interpersonal difficulties due to irritability and tendency to isolate, his reliability, productivity, and efficiency may be reduced, and he may have difficulty tolerating stress. Finally, the examiner reported that the Veteran may have problems with anxiety in workplaces involving loud noises or a lot of people. In a May 2017 statement, the Veteran reported that he rarely slept through the night due to nightmares related to his service. He also reported feelings of guilt and, on hearing helicopters or smelling diesel fuel, experiencing a pounding heart and loosing contact with where he was. Upon careful review of the evidence of record the Board finds that for the period from June 1, 2015, to February 7, 2017, the Veteran's symptomatology more nearly approximated a 70 percent disability rating. When affording the benefit of the doubt to the Veteran, the medical evidence of record suggests that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to symptoms such as recurrent suicidal ideations, thoughts of self-harm, cutting behavior, difficulty controlling anger, anxiety, spatial disorientation, and hypervigilance. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that the evidence of record supports a 70 percent rating for the period June 1, 2015, to February 7, 2017. See 38 U.S.C.A. § 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990); See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, the preponderance of the evidence is against a rating in excess of 70 percent since June 1, 2015, as the weight of the evidence is against a finding that the Veteran's PTSD resulted in a total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411. While the Veteran has a severe disability, there is no evidence in the record establishing that the Veteran has gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); or memory loss for names of close relatives, own occupation, or own name. Id. As noted above, the Veteran has displayed some symptoms consistent with a 100 percent rating, such as a persistent danger of hurting himself, and has described some episodes of disorientation to time and place; however, the evidence of record does not establish that the Veteran experienced a total occupational or social impairment due to his PTSD at any point during the period on appeal. The Veteran has reported a close and supportive relationship with his wife and children. See February 2016 VA treatment record. During the March 2016 hearing he reported getting along with his children. The Veteran's wife testified that the Veteran had worked alone for the prior 15 years, but could now work with some people and have no confrontations. She also testified that the Veteran did not like large groups, but would tolerate them for a family event. In October 2016 VA treatment records, the Veteran reported that his relationship with his son had improved and that he and his wife began volunteering with at-risk children. In January 2017 VA treatment records, the Veteran reported having visited with his grandchildren over Christmas. During the February 2017 VA examination, the Veteran described his relationship with his wife as good and relationship with his children as pretty good. He reported that he was working full time for a company that did fund-raising for schools and had worked for the same company for approximately 11 years. In an April 2017 VA treatment record, the Veteran reported that he had spent the previous weekend helping at a Christian retreat with family friends. Furthermore, the February 2017 VA examiner found that the Veteran's symptoms did not cause a total occupational and social impairment, and instead found that his symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Board finds the examiner's opinion persuasive. Thus, the Board finds the evidence of record shows that a disability rating of 70 percent, but no higher, is warranted for the Veteran's PTSD since June 1, 2015. A 70 percent disability rating during this period contemplates the severity, frequency, and duration of the Veteran's PTSD symptoms and is based on all of the evidence of record. See 38 C.F.R. § 4.126(a). See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran's symptoms appear consistent with no more than occupational and social impairment with reduced reliability and productivity. Thus, the criteria for a finding of a 70 percent evaluation or higher are not met during this period, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). In summary, the Board concludes that from May 28, 2009, to June 1, 2015, excluding the period from April 6, 2015, to June 1, 2015, the criteria for a disability rating in excess of 50 percent have not been met; effective June 1, 2015, to February 7, 2017, the criteria for a 70 percent disability rating, but no higher, have been met; and since February 7, 2017, the criteria for a disability rating in excess of 70 percent have not been met. ORDER For the period from May 28, 2009, to June 1, 2015, excluding the period from April 6, 2015, to June 1, 2015, entitlement to a rating in excess of 50 percent for PTSD is denied. For the period from June 1, 2015, to February 7, 2017, entitlement to a 70 percent rating for PTSD is granted. Since February 7, 2017, entitlement to a rating in excess of 70 percent for PTSD is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs