Citation Nr: 1756525 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-04 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD B. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded this case to the RO in December 2013. The case has returned to the Board for adjudication. The Board notes that the issue of entitlement to a total rating based on individual unemployability (TDIU) was granted by the RO in June 2015. That award constitutes a full grant and, because the Veteran did not appeal the effective date assigned, that matter has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). FINDINGS OF FACT 1. Prior to November 18, 2010, the Veteran's PTSD was manifested, at worst, by occupational and social impairment with reduced reliability and productivity. 2. From November 18, 2010, the Veteran's PTSD was manifested, at worst, by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior November 18, 2010, the criteria for a rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. From November 18, 2010, the criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initial rating claims arise from granted claims of service connection and do not require unique 38 U.S.C. § 5103 notice because the purpose that the notice was intended to serve is fulfilled when service connection has been granted and an initial rating has been assigned. Once the Veteran's claim of service connection was substantiated, his filing of a notice of disagreement with the RO's initial rating decision did not trigger entitlement to additional notice under 38 U.S.C. § 5103. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). The Veteran was not entitled to additional notice for his claim of entitlement to an increased initial rating for his PTSD. As to the duty to assist, VA has made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. See 38 U.S.C. § 5103A(a), (b) and (c). The Board remanded the Veteran's case in December 2013 in order for the RO to obtain additional VA treatment records, private treatment records, and VA examinations. The RO has obtained the Veteran's service treatment records, his VA medical records, and private treatment records. The Veteran has not identified any additionally available evidence for consideration, and the record indicates that the Veteran did not provide a signed release in order for the RO to obtain additional private treatment records. VA afforded the Veteran VA examinations and opinions in January 2010 and September 2014, to evaluate the severity of his PTSD. The Board finds these reports adequate to decide the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board also finds that the RO has substantially complied with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The Board concludes that no further assistance to the Veteran in developing the facts pertinent to this claim is required. II. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings that are based on average impairment of earning capacity. See 38 U.S.C. § 1155; Part 4. Separate diagnostic codes identify the various disabilities, and disabilities must be reviewed in relation to their history. See 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, resolving any reasonable doubt regarding the degree of disability in favor of the claimant, evaluating functional impairment on the basis of lack of usefulness, and evaluating the effects of the disability upon the veteran's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). This analysis is undertaken with consideration of the possibility that different ratings may be warranted for different periods. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the issue is the initial disability evaluation assigned, VA must consider the medical evidence since the effective date of service connection, as well as whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Further, "[w]here 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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. The Board has the authority to consider the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The probative value of a medical opinion is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Acquired psychiatric disabilities are evaluated under 38 C.F.R. § 4.130, with PTSD evaluated under Diagnostic Code 9411. Under that diagnostic code, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity. This may be due to such symptoms such as, for example: 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 effective work and social relationships. See id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, and mood). This may be due to such symptoms such as, for example: suicidal ideations; 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 the inability to establish and maintain effective relationships. See id. A 100 percent rating is warranted if there is total occupational and social impairment. This may be due to such symptoms such as, for example: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. See id. The above-cited criteria 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, 442 (2002). "[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. See 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. See Mauerhan, 16 Vet. App. at 436. Further, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of an examination. See id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale which reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The Board notes that the GAF scale was removed from the more recent DSM-5 for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-5, Introduction, The Multiaxial System (2013). Still, the GAF score and interpretations of the score are important considerations in the rating of a psychiatric disability, though the GAF score assigned to a veteran is not dispositive of the severity of the veteran's mental health disability. See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF score must be considered in light of the actual symptoms manifested by the veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). According to the pertinent sections of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), a GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors, and that the examinee suffers no more than slight impairment in social, occupational, or school functioning. A GAF score of 61 to 70 indicates some mild symptoms, or that the examinee suffers from some difficulty with social, occupational, or school functioning, but that the examinee generally functions well and has some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). III. Facts An August 2007 VA treatment record indicates that the Veteran denied hallucinations, delusions, suicidal or homicidal ideations, or memory problems. The Veteran displayed good hygiene and grooming, coherent and goal directed speech, and a mildly anxious mood. He was assigned a GAF score of 62. An April 2008 VA treatment record indicates that the Veteran experienced increased irritability, transient thoughts of suicide, with no plan or intent ("adamant that he would not consider suicide himself"), pressured speech, nightmares, and insomnia. It appears that the Veteran's VA physician also prescribed medication to treat the Veteran's PTSD. An April 2009 VA treatment record indicates that the Veteran reported depression rated as a three out of ten and anxiety rated as a six out of ten. The Veteran did not report thoughts of suicide, or a plan or intent to harm himself or others. The record also states that the Veteran began work at "a tackle shop and enjoy[ed] the work." He was assigned a GAF score of 60. An October 2009 private medical opinion letter indicates that the Veteran suffered from symptoms including issues controlling his anger, hyperarousal, avoidance, strained emotional ties with others, anxiety, and depression. He was assigned a GAF score of 51. A December 2009 VA treatment record indicates that the Veteran displayed good hygiene and grooming, coherent and goal directed speech, and a mildly depressed mood. The Veteran denied suicidal or homicidal ideations, and displayed intact memory. He was assigned a GAF score of 60. During January 2010 VA examination to assess the severity of the Veteran's PTSD, the Veteran reported suicidal thoughts during the three years preceding the examination, though with no plan or intent. Testing performed as part of the examination reveals that the Veteran "scored high on the depression and anxiety scales, but only mild on the PTSD scale." The examiner opined that the Veteran's symptoms: (1) did not result in total occupational and social impairment; (2) did not result in deficiencies in work, mood, family relations, judgment, or thinking; and (3) did result in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD, with generally satisfactory functioning. He was assigned a GAF score of 60. A November 2010 private medical opinion letter indicates that the Veteran reported "an escalation of his post-traumatic anxiety and mood instability." The report also notes that the Veteran suffered from compromised reasoning and judgment, that a lack of motivation caused him to neglect household chores and other daily responsibilities, and that the Veteran experienced discomfort with establishing and maintaining close relationships. The private physician noted a history of poor vocational adjustment, and opined that the Veteran's vocational productivity appeared "totally impaired" related to disturbances in motivation and mood. The Veteran was assigned a GAF score of 48. A December 2013 VA treatment record indicates that the Veteran did not experience suicidal or homicidal ideations, but did report a history of compulsive hoarding. He was assigned a GAF score of 55. A March 2014 VA treatment record notes a history of depression and anxiety. The Veteran reported that his hobbies included fishing and outdoor activities, and that he enjoyed spending time with his sisters. The Veteran displayed grooming and hygiene within normal limits. The Veteran also reported confusion and memory issues. The report notes that "[h]is score on a self-report measure of anxiety fell in the mild-to-moderate range. His score on a self-report measure of depression fell in the moderate range." The author of the record noted that the Veteran's "depression and anxiety may be exacerbating his cognitive complaints, although I do not believe they are the cause of same." The author of a September 2014 VA examination report opined that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, with generally satisfactory functioning. The report indicates that the Veteran reported depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, though the report also notes that the Veteran did volunteer with a local veteran's organization. According to the report, the Veteran continued to engage in hoarding behavior as a result of his PTSD. The examiner opined that the Veteran experienced moderate symptoms and moderate impairments related to his PTSD. A February 2015 VA treatment record notes that the Veteran denied suicidal or homicidal ideations, was well groomed, but reported increased anxiety and depression. An April 2015 VA treatment record notes that the Veteran reported anxiety attacks, and continued hoarding behavior. IV. Analysis The Veteran's GAF scores indicate that the Veteran suffered from mild to severe symptoms of PTSD during the period on appeal. While the Veteran's GAF scores are not dispositive of the Veteran's level of disability, they are probative of the severity of the Veteran's PTSD during that period. See Richard, 9 Vet. App. at 267. The record indicates that the Veteran's GAF scores during this period, which ranged from 62 to 48, corresponded to symptoms of PTSD that reflected or more closely approximated a disability rating of no more than 70 percent, i.e., occupational and social impairment with deficiencies in most areas due to symptoms akin to those reported by the Veteran. Records dated prior to the November 18, 2010, private medical opinion letter indicate that the Veteran suffered from symptoms that more nearly approximated a rating of 50 percent. This rating is supported by the Veteran's GAF scores, the symptoms described in his VA treatment records, a general lack of suicidal or homicidal ideations (though there are notes of suicidal thoughts), and the opinion expressed in the January 2010 VA examination report. Although there are a few notations in the record about suicidal thoughts, the Board finds that they are outweighed by the fact that the Veteran often reported a lack of suicidal ideation. In addition, the fact that the author of the April 2008 treatment record assessed these thoughts as "transient" indicates a lesser degree of severity and the Board has weighed this evidence accordingly. See Madden, 125 F.3d at 1481. The ultimate question before the Board is to weigh the Veteran's level of overall impairment and not to simply check whether specifically listed symptoms were or were not present. See id.; Mauerhan, 16 Vet. App. at 442 (explaining that the listed rating criteria are examples and not a checklist). The evidence of record prior to November 18, 2010, does not suggest that the Veteran experienced symptoms which produced impairment akin to those required for a 70 percent rating. See 38 C.F.R. § 4.7. The evidence suggest that a 70 percent rating is supported from November 18, 2010, the date of the private medical opinion in which the Veteran recorded a GAF score of 48, and was described as displaying totally impaired vocational productivity and trouble establishing and maintaining close relationships. This medical opinion letter, supported by the findings contained in the September 2014 VA examination, indicates that the Veteran's symptoms more nearly approximated a rating of 70 percent from November 18, 2010. See Id. A rating of 100 percent, the next level at which the Veteran could receive benefits, required a showing that the Veteran suffered from total occupational and social impairment. In this case, the symptoms described during this time period did not rise to a level that would warrant a rating of 100 percent. The Veteran did report increased anger, depression, and anxiety, among other symptoms, but these symptoms did not manifest to a degree of severity comparable to symptoms that would necessitate a rating of 100 percent. The Veteran did not display symptoms akin to gross impairment in thought processes or communication, persistent delusions or hallucinations, gross inappropriate behavior, persistent danger of hurting oneself or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, occupation, or his own name. See Mauerhan, 16 Vet. App. at 436. Moreover, the record indicates that the Veteran enjoyed hobbies, such as fishing and outdoor activities, and spending time with his sisters. As such, the Board finds that the evidence of record supports a disability rating of no more than 70 percent during the period on appeal, from November 18, 2010. ORDER Prior to November 18, 2010, a rating of 50 percent for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. From November 18, 2010, a rating of 70 percent rating for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs