Citation Nr: 1754699 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 15-25 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial rating in excess of 30 percent for other specified trauma and stress-related disorder prior to June 9, 2016, and in excess of 50 percent from that date. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran had honorable active service in the United States Army from August 1943 to May 1946. The Veteran received multiple awards and medals including the Good Conduct Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in October 2015. A transcript of that hearing has been associated with the claims file. In October 2017, the Board notified the Veteran that the VLJ who conducted the Board hearing was no longer employed at the Board. The Veteran was provided the opportunity to request another hearing on the appeal issue and was advised that if the Veteran did not respond within 30 days, the Board would assume that he did not want another hearing and would proceed accordingly. In November 2017, the Veteran responded that he did not wish to appear for another Board hearing. The case was previously before the Board in February 2016 and December 2016. In February 2016, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development, including, a VA examination to determine the current severity of the Veteran's psychiatric disability and to obtain relevant VA treatment records and private treatment records. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2016, the Board remanded the matter to the AOJ for additional development, including the acquisition and consideration of relevant VA treatment records. There has been substantial compliance with the remand directives. See Stegall, supra. In September 2016, the Appeals Management Center (AMC) increased the Veteran's rating to 50 percent for the disability at issue effective June 9, 2016. Because the increase in evaluation does not represent the maximum evaluation available for the condition, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT For the entire period on appeal, the Veteran's service-connected psychiatric disorder symptoms have more nearly approximated occupational and social impairment, with deficiencies in most areas. Symptoms of total occupational and social impairment have not been demonstrated. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial rating of 70 percent, and not higher, for other specified trauma and stress-related disorder, from the January 31, 2012 effective date of service connection, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.326(a). In light of the favorable disposition of the claim for an initial increased rating for the Veteran's service-connected psychiatric disorder, the Board finds that any deficiencies with regard to the duty to notify or assist is non prejudicial, and thus, no further discussion of VA's duties to notify and assist is necessary. II. Increased Rating, Other Specified Trauma and Stress-related Disorder The Veteran seeks an initial rating in excess of 30 percent prior to June 9, 2016, and in excess of 50 percent from June 9, 2016 for his service-connected psychiatric disorder. At an October 2015 Board hearing, the Veteran testified that the symptoms of his service-connected psychiatric disorder had increased in severity, including being less social, losing interest in his hobbies, having a decreased memory, having trouble sleeping, having suicidal ideation, and being nervous and having panic attacks. The Veteran testified that he felt that it would be better if he were to pass on. The Veteran's spouse testified that the Veteran was less social and had nightmares. She testified that the Veteran no longer enjoyed having people around the house, including herself, and he would isolate himself when family came to visit. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Service connection for other specified trauma and stress-related disorder with an evaluation of 30 percent effective January 31, 2012 was granted in a November 2014 rating decision. The Veteran filed a claim for increased rating in February 2015. A rating decision issued in September 2016 increased the disability rating to 50 percent effective June 9, 2016. The Veteran is currently assigned a 30 percent disability rating for his service-connected psychiatric disorder, prior to June 9, 2016, and a 50 percent rating from June 9, 2016 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9400 and the General Rating Formula for Mental Disorders. Pursuant to the General Rating Formula, a 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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, own occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a Veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009); see also 38 C.F.R. § 4.126(a); compare Massey v. Brown, 7 Vet. App. 204, 208 (1994). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the Veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the Veteran's symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). For instance, the scores assigned under the Global Assessment of Functioning (GAF) scale may be a relevant consideration. See e.g., Bowling v. Principi, 15 Vet. App. 1, 14 (2001). However, the American Psychiatric Association has since determined that the GAF score has limited usefulness in the assessment of the level of disability. Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice. 79 Fed. Reg. 45093 (Aug. 4, 2014). The Board notes that effective August 4, 2014, the regulations governing the rating of mental disorders were updated to replace all references to the DSM-IV with references to the DSM-V, which no longer utilizes the GAF score system. 80 Fed. Reg. 14308 (Mar. 19, 2015). However, this change does not apply to claims that were certified for appeal to the Board, even if such claims were subsequently remanded. Id. As the Veteran's claim had been certified to the Board in July 2015, the DSM-IV is no longer applicable to his claim. A Global Assessment of Functioning (GAF) rating 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 DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. The evidence reflects that the Veteran has been diagnosed with other nonservice-connected psychiatric disorders. The use of manifestations not resulting from service-connected disease or injury is to be avoided when establishing the service-connected disability evaluation. 38 C.F.R. § 4.14. However, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Post service treatment records reflect a diagnosis of depression and posttraumatic stress disorder (PTSD) from November 2013. The Veteran was afforded a VA examination in February 2012. The examiner opined that the Veteran did not meet the criteria for PTSD or any other mental health diagnosis. VA treatment records in November 2013 reflect a diagnosis of depression and PTSD. The Veteran reported that he had nightmares, had trouble sleeping, and did not want to be around others. The Veteran admitted to some passive suicidal ideation at times due to bothersome trauma memories. The Veteran was afforded a VA examination in November 2014, which reflected a diagnosis of other specific trauma and stress-related disorder. The examiner noted that the Veteran did not meet the DSM-V criteria for PTSD in the areas of negative mood/thoughts or hyperarousal. The Veteran reported that he had been married for 65 years with two adult children, and five grandchildren, and saw them on a frequent basis. He reported that he and his spouse would go out to eat every once and a while, and they attended church every Sunday, where the Veteran would see some friends. The Veteran enjoyed gardening and fishing, and in the winter, he stayed home and watched television. The Veteran took early retirement in his fifties, after 30 years of working in union construction work, due to heavy drinking. He reported that he began drinking in the military, and would drink during combat when he could find it. Eventually, due to his heavy drinking, job offers dropped off. He reported that he would have preferred to work longer. The examiner noted that the Veteran's symptoms included anxiety. The examiner opined that the Veteran had occupational and social 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. VA treatment records in November 2015 reflect a diagnosis of chronic PTSD and depression. The Veteran reported that he would get irritable and would isolate himself about once a week. The Veteran also admitted to some passive suicidal ideation. The Veteran was afforded a VA examination in June 2016, which reflected a diagnosis of other specified trauma and stress-related disorder, other specified depressive disorder, and a mild cognitive disorder, by history. The examiner noted that a September 2012 neuropsychological evaluation indicated functional impairment congruent with mild cognitive disorder. The Veteran reported that he was not comfortable even with his family or his spouse, and that it had been going on since 2012. He reported that he did not seem to have friends anymore. In regards to suicidal ideation, the Veteran also reported that sometimes he would think that with what he was going through, it would be better for him to just get it over with; he did not have a plan or attempt. The Veteran also reported having nightmares and fighting in his sleep. The examiner opined that it was possible to differentiate which symptoms were attributable to each diagnosis. The examiner opined that the Veteran had occupational and social impairment with reduced reliability, and that all of his mental disorders contributed to his occupational and social impairment. VA treatment records in February 2017 reflect a diagnosis of chronic PTSD and depression. The examiner noted that the Veteran still had symptoms of depression; and he reported that he did not enjoy things. The Veteran also admitted to some passive suicidal ideation. The Veteran continued to have nightmares multiple times per week, was hypervigilant and had intrusive thoughts. The Veteran was afforded a VA examination in March 2017, which reflected a diagnosis of other specified trauma and stress-related disorder, other specified depressive disorder, and mild neurocognitive disorder, by history. The Veteran reported that he could not be around a bunch of people anymore. He worried about someone doing him harm, and he discussed a church shooting in 2016. He had frequent nightmares. He preferred to be by himself, and was less interested in mingling with other people, including his family. The examiner noted that the Veteran had a low tolerance for frustration, and that the Veteran reported that he would sometimes snap at others. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted that it was not possible without considerable speculation to differentiate what portion of the indicated level of occupational and social impairment was attributable to each diagnosis because there was some symptom overlap, and because of the interaction between the disorders. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of OSTSRD have more nearly approximated the criteria for a 70 percent rating, but not higher, throughout the period on appeal. As the June 2016 and March 2017, examiners have stated it is not possible to differentiate what portion of the Veteran's level of occupational and social impairment was attributable to OSTSRD versus his other diagnosed psychiatric disorders; VA has resolved any doubt in his favor and attributed the impairments from these disorders to his service-connected OSTSRD. See Mittleider, supra. Throughout the period on appeal, the Veteran's symptoms were manifested primarily by ongoing symptoms of irritability, anxiety, depressed mood, hypervigilance, passive suicidal ideation, social isolation, and sleep disturbance. The Board finds that the Veteran's symptomatology throughout the period on appeal has been consistent with and more nearly approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, the criteria for a 70 percent rating. Although the medical evidence does not show symptomatology 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, the symptoms noted in the rating schedule 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 disability rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002). Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 70 percent rating appear to be demonstrated throughout the period on appeal. However, the Board finds that the symptoms associated with the Veteran's se service-connected psychiatric disorder do not meet the criteria for a 100 percent rating at any period of this appeal. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's service-connected psychiatric disorder. The evidence of record does not indicate that the Veteran has exhibited persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Throughout the record, the Veteran was consistently found to be oriented. He was able to maintain a relationship with his spouse. He socialized with his family and friends to some extent, though, the Board acknowledges, that the Veteran reported that he had become increasingly withdrawn. He has never displayed grossly inappropriate behavior, any sort of delusions, or had the intermittent inability to perform activities of daily living. Therefore, the Board finds that total social and occupational impairment has not been shown. In sum, the Board finds psychiatric symptoms shown do not support the assignment of the maximum 100 percent schedular rating. ORDER Entitlement to a 70 percent rating for other specified trauma and stress-related disorder for the entire period on appeal is granted, subject to the laws and regulations governing the payment of monetary benefits. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs