Citation Nr: 1754314 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 14-09 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from August 1967 to April 1969. This matter comes to the Board of Veterans Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in July 2014. A transcript is of record. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) Accordingly any future consideration of this case should take into consideration the existence of these records. FINDING OF FACT At no time during the current appeal period has the Veteran's PTSD been productive of occupational and social impairment with deficiencies in most areas, or of total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vasquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has sent letters to the Veteran throughout the appeal process which set out the type of evidence needed to substantiate the claim. The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran underwent VA examinations in October 2012 and April 2017. The Board finds the examinations adequate, because they include a review of the medical file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to an initial disability rating in excess of 50 percent for PTSD The Veteran's service connected PTSD has been evaluated under 38 C.F.R. § 4.130, DC 9411. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. A 50 percent rating is assigned 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 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); inability to establish and maintain effective relationships. A 100 percent rating is assigned 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (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 evaluation issue; rather the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Having reviewed all the evidence of record, the Board finds that it does not support a finding of occupational and social impairment with deficiencies in most areas such as family relations, work, school, mood, judgment and thinking, as contemplated by the criteria for a 70 percent rating. VA treatment notes reveal a longstanding history of alcohol and substance abuse, and the Veteran has received sporadic treatment for psychiatric issues for many years. He was afforded a VA psychiatric examination in October 2012, during which it was revealed that he experiences intrusive memories of traumatic military experiences, as well as sleep problems, hyperarousal, hypervigilance, irritability and anger. The Veteran endorsed good family relationships, but noted a history of periodic problems with workplace supervisors and contact with law enforcement. The examiner opined that, overall, the Veteran was beset by occupational and social impairment with reduced reliability and productivity, adding he was unable to parse out the relative degrees to which symptoms owed to PTSD as opposed to alcohol and substance abuse. VA treatment records from 2013 show the Veteran consistently attended group therapy sessions. This treatment continued into 2014; in these records, the Veteran is consistently noted as "talkative," "appropriate," and "polite." Providers add he "appear[s] to comprehend the verbal and written material," and note he consistently shows no suicidality. April 2014 VA treatment notes confirm this trend, but cite ongoing complaints of depression, low motivation, hypervigilance, exaggerated startle response, and sleep problems. However, the Veteran continues to deny suicidality or self-harm during this period, and treatment notes indicate no history of violence. The Veteran was afforded a second VA examination in April 2017. That examiner noted marked improvement in virtually all of the Veteran's psychiatric symptoms, concluding that at the time of examination, the Veteran's symptoms did not meet the diagnostic criteria for a PTSD diagnosis, or any other psychiatric diagnosis, under either the DSM-IV or DSM-V standards. The examiner noted the Veteran had stopped taking any psychotropic medications, and had discontinued group therapy, but that he nevertheless exhibited very few symptoms of PTSD. Examination notes indicate the following: "[The] Veteran presented...as alert and oriented with no overt signs of psychosis. His affect was bright, and no behavioral abnormalities were noted. His mood was described as 'pretty good.' Veteran's thoughts were logical and goal directed, while his speech was clear and intelligible. His overall presentation was devoid of any delusional content, and reality testing was intact. Veteran informed this writer he currently sleeps 6-8 hours per night on average. He denied experiencing any combat-related nightmares. He did not appear to be in any acute psychological distress at the time of this contact. Although veteran appears to have previously met diagnostic criteria for PTSD, he does not meet criteria at the present time. The only symptom veteran endorsed during today's evaluation that could be associated with PTSD is the mild hypervigilance he endorsed experiencing at times. Veteran appears to have good social relationships and noted he is not working currently due to health-related problems. He is not taking psychotropic medication and only appears to have received mental health treatment consistently for substance abuse problems. It should be noted that records indicate Veteran has a long history of substance abuse problems. However, during today's evaluation, he indicated his ongoing use of cocaine and marijuana are not negatively impacting his life in any way." The Board considers the examiner's assessment to be the most probative evidence of record with regard to the current manifestation of the Veteran's PTSD. It is clearly expressed, reasoned, and based on a thorough in-person examination and interview of the Veteran. Moreover, by his own statements at the examination, the Veteran tends to corroborate the examiner's assessment that his PTSD symptoms are not debilitating. Accordingly, the Board does not find it warranted to assign an increased disability rating for PTSD. The record does not indicate occupational and social impairment with deficiencies in most areas. For instance, the Veteran has never been noted to experience suicidal ideation, obsessional rituals, illogical speech or thought, panic attacks or debilitating depressive episodes, spatial disorientation, or neglect of personal appearance or hygiene. He has, by his own acknowledgement, maintained effective relationships with family members. The record reveals no violent outbursts. His symptoms are adequately represented by the 50 percent rating that he currently receives. They do not equate in severity, frequency, or duration to a 70 percent rating. As such, the Board finds the Veteran's symptoms do not rise to the level contemplated in the criteria for a 70 percent disability rating. Further, there is no indication of total occupational and social impairment as contemplated by the criteria for a 100 percent rating. The Veteran is not beset by gross impairment in thought processes, nor by delusions or hallucinations. There is no indication he has engaged in grossly inappropriate behavior, there is no objective evidence of memory loss or cognitive defects. Accordingly, the Board does not find that the criteria for a 100 percent rating are satisfied in this case. In sum, the Veteran's symptomatology, as captured by the medical record covering the period at issue, does not approximate that contemplated in the criteria for a 70 or 100 percent disability rating. Rather, the record demonstrates a trend of improvement over the course at the period at issue, and at no point has the Veteran been beset by the occupational and social impairment contemplated by higher ratings. Accordingly, a rating in excess of 50 percent for PTSD is not warranted for any portion of the appeal period. ORDER Entitlement to an initial disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs