Citation Nr: 1754614 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-33 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether a rating reduction from 50 percent to 30 percent effective February 1, 2015 for residuals of a hysterectomy was proper. 2. Entitlement to an increased rating in excess of 20 percent for degenerative disc disease of the lumbar spine. 3. Entitlement to a higher initial rating in excess of 50 percent for depressive disorder with posttraumatic stress disorder. (The issue of entitlement to service connection for a cervical spine disability has been addressed in a separate Board decision). REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to July 1998. This matter comes on appeal before the Board of Veterans' Appeals (Board) from October 2009, August 2013, and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona (RO). The Board remanded the appeal in September 2015 to schedule the Veteran for a Board hearing. The Veteran provided testimony before the undersigned Veterans Law Judge at a January 2017 videoconference hearing and the hearing transcript is of record. The Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The 50 percent rating for residuals of a hysterectomy was reduced to 30 percent effective February 1, 2015, based on a finding of clear and unmistakable error. 2. The evidence of record did not show, clearly and unmistakably, that the Veteran did not have complete removal of the uterus and both ovaries at the time of the rating reduction. 3. The reduction of a 50 percent disability rating for residuals of a hysterectomy was improper. 4. For the entire rating period, with consideration of functional loss due to pain, flare-ups of pain, weakness, and lack of endurance, limitation of motion of the lumbar spine approximated a rating based on forward flexion of the thoracolumbar spine at 30 degrees or less, or favorable ankylosis of the thoracolumbar spine. 5. For the entire rating period, the Veteran's lumbar spine disability did not approximate unfavorable ankylosis of the entire thoracolumbar spine. 6. For the entire rating period, psychiatric symptoms and impairment due to a service-connected acquired psychiatric disorder approximate a rating based on occupational and social impairment with reduced reliability and productivity due to symptoms such as depression, anxiety, sleep impairment, difficulty with concentration and memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective social relationships. CONCLUSIONS OF LAW 1. The criteria for restoration of a 50 percent disability rating for residuals of a hysterectomy have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.105 (e), 3.343, 3.344, 4.1, 4.7, 4.116, Diagnostic Code 7617 (2016). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an increased 40 percent rating for degenerative joint disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Plate V, 4.71, Diagnostic Code 5242 (2016). 3. For the entire rating period, the criteria for a higher initial rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties 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.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The provisions of 38 C.F.R. § 3.105 (e) define procedural guidelines for the reduction in evaluation of a service-connected disability. The regulations provide where the reduction in evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and request a predetermination hearing. The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2) (2016). The Board finds that the procedural guidelines outlined above were followed in effectuating the November 2014 rating reduction, with a proposed reduction issued in August 2013. Because the Board is granting the full benefit sought on appeal with respect to the rating reduction in the restoring a 50 percent rating for residuals of a hysterectomy, additional discussion regarding VA notice or assistance duties is not required to address the issue. The Board finds that the Veteran was provided adequate preadjudicatory notice addressing the initial claim for service connection for an acquired psychiatric disorder, and she was provided adequate notice addressing her increased rating claim. The Board finds that VA examinations are sufficient for rating purposes. The Veteran has not 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 a duty to assist argument). Restoration of a 50 Percent Rating In a May 2006 decision, the RO assigned an initial 50 percent rating for residuals of a hysterectomy based on evidence showing that the Veteran had complete removal of the uterus and both ovaries in June 1999. In August 2013, the RO proposed to reduce the Veteran's rating based on clear and unmistakable error, citing to findings from an August 2009 VA examination. A November 2014 rating decision reduced the 50 percent rating to 30 percent effective February 1, 2015. Under 38 C.F.R. § 4.116, Diagnostic Code 7617, a 50 percent rating is assigned for complete removal of the uterus and both ovaries. Under Diagnostic Code 7618, a 30 percent rating is assigned for removal of the uterus. The Veteran contends that reduction of a 50 percent rating for service-connected residuals of a hysterectomy was not proper and has submitted lay testimony and radiographic evidence showing that her ovaries were removed in 1999. The Board finds that the rating reduction was not proper, and restoration of a 50 percent for residuals of a hysterectomy rating is warranted. The 50 percent disability rating assigned for residuals of a hysterectomy was in effect more than five years at the time of the rating reduction; therefore, the provisions of 38 C.F.R. § 3.344 (a), are applicable. Where a veteran's schedular rating has been both stable and continuous for five years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344 (a). Ratings on account of a disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. In this case, the RO did not find material improvement in the Veteran's disability, but instead, determined that there was clear and unmistakable error in the assignment of the initial 50 percent rating for residuals of a hysterectomy, stating that there was no evidence showing that the ovaries had been removed. Thus, the Board will analyze the merits of the appeal under the applicable laws and regulations pertaining to clear and unmistakable error. Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105 (a). To determine whether CUE is present in a prior determination, a claimant must show that: (1) "[e]ither the correct facts, as they were known at that time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see also Bustos v. West, 179 F.3d 1378, 1381 (1999). It is important to understand that clear and unmistakable error is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155 (2014). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Id. at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability had actually occurred, but also that the improvement reflects an improvement under the ordinary conditions of life and work. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). Where VA has reduced a veteran's rating without observing applicable laws and regulation, such a rating is void ab initio and it will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. The record shows that the Veteran had a total abdominal hysterectomy in June 1999 due to an enlarged symptomatic fibroid uterus. A September 1999 ultrasound shows that the uterus and both ovaries were surgically absent. An August 2009 VA gynecological examination noted that the Veteran had an abdominal hysterectomy in 1999, and the examiner stated with regard to the Veteran's history, that "her doctor told her that her ovaries were left in place." The Veteran later corrected this statement in January 2017 Board hearing testimony, emphasizing that this was an error, that she did not say that, and she indicated that it was her understanding that her ovaries had been removed. During the August 2009 VA examination, the Veteran reported that she had the onset of hot flashes in 2008 and started estrogen replacement therapy in 2009. The examiner found that this would be consistent with her ovaries remaining in place with onset of menopausal symptoms as ovarian function waned. The RO reduced the Veteran's rating largely based on findings from the August 2009 VA examination, noting in the proposed reduction that the June 1999 operative report and discharge summary did not show that the ovaries were removed and that September 1999 imaging studies showed that the ovaries were present. Contrary to the RO's findings, however, the cited September 1999 imaging studies from Cigna Health Care of Arizona showed that "[t]he uterus and both ovaries are surgically absent," and a copy of this treatment report was submitted to by the Veteran just after she received notice of the proposed reduction. The Board finds that the August 2009 VA examination was inadequate to rely upon for the purposes of reducing the disability rating for residuals of a hysterectomy as it was based on a reported medical history inconsistent with objective findings in the record showing the surgical absence of both ovaries following a June 1999 total hysterectomy. The evidence of record did not show, clearly and unmistakably, that the Veteran did not have complete removal of the uterus and both ovaries at the time of the rating reduction. Moreover, the Veteran has since provided an updated August 2015 transabdominal and endovaginal sonogram of the pelvis showing that neither the uterus nor the ovaries are present. For these reasons, the Board finds that the reduction of a 50 percent disability rating for residuals of a hysterectomy was improper, and restoration of the 50 percent rating from February 1, 2015 is warranted. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial rating assigned for an acquired psychiatric disorder by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating); see also Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992) (discussing aspects of a claim for increased disability rating). She is seeking an increased rating for her service-connected lumbar spine disability. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson, 12 Vet. App. at 126. Based on the evidence of record, a staged rating is not warranted for either disability. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Lumbar Spine Under Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned with x-ray evidence of involvement of two or more major joints; a 20 percent rating is assigned with x- ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2016). The schedular criteria for the rating of spine disabilities evaluates degenerative arthritis of the spine either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5242 and 5243. Under the General Formula, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The General Rating Formula for Diseases and Injuries of the Spine allows for separate evaluations for chronic orthopedic and neurologic manifestations. See 38 C.F.R. § 4.71a Note (1). Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, a 40 percent evaluation is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides the following Notes: Note (1): An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2016). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Board finds that for the entire appeal period, with consideration of functional loss due to pain, pain, stiffness, and flare-ups of pain, the Veteran had limitation of motion approximating forward flexion of the thoracolumbar spine at 30 degrees or less or favorable ankylosis of the thoracolumbar spine to warrant an increased 40 percent rating. During an August 2009 VA examination, the Veteran described having daily back pain treated with prescribed morphine and Percocet. During flare-ups, which occurred daily, she was often impaired to the point where she needed to lie down. The examiner reported, however, that there had not been incapacitating episodes of back pain over the last 12 months that required bed rest prescribed by a physician. The Veteran had between 50 and 60 degrees forward flexion in the thoracolumbar spine with range of motion reported to be limited by pain. The Veteran did not report numbness, tingling, or paresthesia in the lower extremities. A sensory examination was normal to pin prick and light touch and reflexes were normal. There was no evidence of functional loss with use, and no loss of range of motion after repetitive use. During an October 2012 VA examination, the Veteran also identified daily flare-ups of back pain. She took oxycodone for pain with poor relief and had lumbar facet injections. While the Veteran reported occasional sciatica in the right leg, the examiner noted that there were no objective findings related to sciatica on examination. The Veteran had 55 degrees forward flexion in the thoracolumbar spine with pain at 55 degrees, and had 50 degrees flexion after three repetitions of range of motion. Functional loss after repetitive use included less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The Veteran had normal reflex and sensory examinations, and the VA examiner stated that the Veteran did not have radiculopathy. While the presence of mild stress incontinence was noted, in an addendum opinion, the VA examiner clarified that stress incontinence was not related to the Veteran's lumbar spine disability. The record also includes range of motion findings provided during a June 2014 orthopedic evaluation completed by Dignity Health Medical Group. At that time, the Veteran had lumbar flexion between 30 and 60 degrees, noted to be painful. Light touch and pinprick sensation was normal. Paresthesia, numbness, and tingling were not present. A 40 percent rating is assigned with forward flexion of the thoracolumbar spine at 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar. While VA examinations identified at least 50 degrees flexion in the thoracolumbar spine, the record indicates that the Veteran had pain throughout range of motion during a June 2014 private orthopedic examination, and painful motion with repetitive testing during an October 2012 VA examination. Additionally, the Veteran has credibly identified having daily flare-ups of pain resulting in the need for rest, and daily use of pain medication in order to manage pain. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that with consideration of the additional functional loss due to pain present with range of motion or range of motion on repetitive use, flare-ups of pain, weakness, and lack of endurance, range of motion in the spine more nearly approximates the criteria for an increased 40 percent rating under Diagnostic Code 5242. See 38 U.S.C. § 5107(b) (2014); 38 C.F.R. §§ 4.3, 4.7 (2016). For the entire rating period, the Veteran's lumbar spine disability did not approximate a rating based on unfavorable ankylosis of the entire thoracolumbar spine to warrant the next higher 50 percent rating under Diagnostic Code 5242, even with consideration of limitations to range of motion due to pain and during flare-ups. During VA examinations and during the June 2014 private treatment evaluation, the Veteran had active range of motion in the lumbar spine with no ankylosis. Even though range of motion was painful, with additional pain identified during flare-ups, the Board finds that this is adequately contemplated by the assigned 40 percent rating which considers favorable ankylosis of the thoracolumbar spine. VA examinations show that the Veteran does not have incapacitating episodes requiring bed rest prescribed by a physician to warrant a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes. The Board has considered whether an increased rating is warranted based on neurologic manifestations the Veteran's lumbar spine disability. The General Rating Formula of Diseases and Injuries of the Spine allows for separate evaluation of any associated objective neurologic abnormalities. 38 C.F.R. § 4.71a, Note (1). While the Veteran indicated that she had occasional sciatic symptoms in the right lower extremity during an October 2012 VA examination, VA examinations did not identify sciatica or radiculopathy in either the right or left lower extremity on examination. A June 2014 private orthopedic examination also shows that sensory examinations were normal, and the Veteran denied having symptoms of numbness, tingling, and parasthesias at that time. While the Board finds that the Veteran is credible in identifying occasional symptoms present in the right lower extremity, absent any findings on sensory examinations, the weight of the evidence does not reflect mild neuritis, neuralgia, or incomplete paralysis of the sciatic nerve in either the right or left lower extremity to warrant a separate rating under Diagnostic Code 8520. See 38 C.F.R. § 4.124a. Acquired Psychiatric Disorder The Veteran is in receipt of a 50 rating under Diagnostic Code 9434 for an acquired psychiatric disorder, to include depressive disorder and PTSD. A 50 percent rating is assigned 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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 that is 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); and inability to establish and maintain effective relationships. A 100 percent disability rating is assigned 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. In evaluating psychiatric disorders, the Board is mindful that 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 only 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). VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). "A veteran may only qualify for a given rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Further, "§ 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." VA examinations and clinical evaluations reflect assignment of various Global Assessment of Functioning (GAF) scores. The GAF is a scale reflecting the subject's psychological, social, and occupational functioning. Richard v. Brown, 9 Vet. App. 266, 267 (1997). GAF scores from 61 to 70 reflect some 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, with some meaningful interpersonal relationships. A GAF 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 (few friends, conflicts with peers or co-workers). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (4th Ed.). The Veteran contends that a higher initial rating is warranted for her psychiatric disorder. After a review of all the evidence, lay and medical, the Board finds that a higher rating is not warranted for a service-connected psychiatric disorder. VA treatment records dated from 2007 to 2014 show that the Veteran received regular mental health treatment at VA, including medication management. Mental health treatment records identify symptoms related to depression, anxiety, poor concentration, fatigue, poor sleep, and low energy. Mental status examinations show that the Veteran was alert and oriented in all three spheres, grooming was appropriate, speech was normal, thought process was normal, and insight and judgement were described as fair or good. She denied suicidal and homicidal ideation and psychosis. VA treatment records show that the Veteran was consistently assessed with a GAF score of 55, except in April 2014 where a psychiatric treatment report identified a GAF score of 65. In 2014, the Veteran also attended PTSD group therapy sessions. An August 2013 VA examination identified diagnoses of depressive disorder NOS and PTSD and the Veteran was assessed with a GAF score of 53. Her psychiatric diagnoses were stated to result in occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. During the examination, the Veteran indicated that she separated from her husband in 2011 and had no children. She reported having one friend and a couple of other relatives who she saw occasionally. She attended church periodically. The Veteran was retired, but had recently volunteered for a veteran's task force that met once a month. She noted current struggles with relationships and with communicating her feelings toward others. She described having symptoms of anxiety, depression, and chronic sleep impairment. The examiner also identified symptoms of irritability, difficulty with concentration, suspiciousness, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The evidence of record shows that the Veteran has consistently identified psychiatric symptoms related to depression, anxiety, chronic sleep impairment, difficulty with concentration and memory, disturbances of motivation and mood; and difficulty in establishing and maintaining effective social relationships. The Veteran's GAF scores are predominantly at 55, and she had a GAF score of 53 during her VA examination, consistent with a finding of moderate symptoms or moderate difficulty in social and occupational functioning. While the August 2016 VA examiner identified occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, consistent with a 30 percent rating, the Board finds that the Veteran's psychiatric symptoms and the severity of such approximate a rating based on occupational and social impairment with reduced reliability and productivity due to symptoms such as depression, anxiety, chronic sleep impairment, difficulty with concentration and memory, disturbances of motivation and mood; and difficulty in establishing and maintaining effective social relationships. Based on consideration of the Veteran's symptoms, GAF scores identifying moderate disability, the Board finds that occupational and social impairment due to depression and PTSD approximate the criteria for a 50 percent rating under Diagnostic Code 9434. The Board finds that the severity of the Veteran's psychiatric symptoms and impairment does not more nearly approximated the criteria for a higher 70 percent rating. While the Veteran is unemployable due to a combination of her psychiatric and physical disabilities, she is not shown to have deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to her acquired psychiatric disorder as indicated for a higher 70 percent rating, and her symptoms and overall disability picture more closely approximates the criteria as described for a 50 percent rating. Evidence of record shows that the Veteran has identified having some relationships and participation in volunteer work, her vocational impairment is shown to be due in large part to her physical disabilities, and she does not have evidence of impaired judgement or thinking in her VA examination or in VA treatment records. For these reasons, an acquired psychiatric disorder does not more nearly approximate the rating criteria for a 70 percent evaluation under Diagnostic Code 9434. For these reasons, the Board finds that for the entire rating period, the criteria for a higher initial 70 percent rating have not been met or more nearly approximated. Because the preponderance of the evidence is against the appeal for an initial rating in excess of 50 percent for an acquired psychiatric disorder, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. (CONTINUED ON NEXT PAGE) ORDER From February 1, 2015, restoration of a 50 percent rating for residuals of a hysterectomy is granted. For the entire rating period, an increased 40 percent rating is granted for degenerative disc disease of the lumbar spine. A higher initial rating in excess of 50 percent for depressive disorder with PTSD is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs