Citation Nr: 1756560 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-11 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a disability rating higher than 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from June 1999 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2013 and May 2016, the Board remanded the matter for additional development. In March 2017 the Board referred the case for a Veterans Health Administration (VHA) expert, which was obtained in August 2017. The Veteran was sent a copy and her representative submitted an October 2017 brief in response. FINDING OF FACT The Veteran's PTSD has been productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks, nightmares/sleep impairment, memory loss, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships throughout the appeal period. CONCLUSION OF LAW The criteria for a disability rating of 50 percent, but not higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has had a 30 percent rating for her service-connected PTSD since July 2003. In April 2009, she filed a claim for an increased rating, which was denied in an August 2009 rating decision. The Veteran has appealed. The Board has limited its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD has been evaluated under the provisions of DC 9411 throughout the appeal period. This DC provides for a 30 percent rating 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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 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. Id. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. Id. The highest rating of 100 percent is warranted where there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings for mental disorders are assigned according to the manifestations of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. Global assessment of functioning (GAF) scores were historically used to reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, and were also useful indicators of the severity of a mental disorder. See DSM-IV. GAF scores between 51 to 60 were indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores between 41 to 50 reflected serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores between 31 to 40 indicated impairment in reality testing or communication (e.g., speech 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., depressed man avoids friends, neglects family, and is unable to work). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Facts In a report dated in March 2009, a private psychologist, who says that the Veteran first consulted her in February 2009, reported that the Veteran had displayed little affect during their consultations. She summarized the Veteran's pre-service and military history, and stated that the residuals of the in-service stressor event appeared to be "persistently re-experienced with recurrent and distressing recollections such as in cues that resemble or symbolize an aspect of the traumatic event." She added as follows: Where possible she seeks to avoid such cues and recollections. Where they cannot be anticipated and actively avoided as in dreams or nightmares she may become terrified exhibiting a number of symptoms of intense anxiety. Other signs of distress might include difficulty falling asleep, outbursts of anger, panic attacks, hypervigilance, exaggerated startle response, or a subjective sense of numbing and detachment. The diagnosis was chronic PTSD; depression, and anxiety, with a GAF of 35, which the psychologist said was down from a prior year high of 40. In May 2009 the Veteran was accorded a VA PTSD examination, which was done by a private psychiatrist. During that examination the Veteran complained of nightmares, flashbacks, and intrusive thoughts. She reported that she had a good relationship with her mother and a typical relationship with her brother, but was currently single with no significant other. She further reported that after service she had first attended a university, and had since become employed at an oil company, where she had a fair relationship with her supervisor and co-workers. She said that she had trouble trusting people. Mental status examination found orientation within normal limits, as well as appearance, behavior, eye contact, and concentration. The examiner surmised that the Veteran was having weekly panic attacks characterized by heart racing, dizziness, and "not having enough air"; but no hallucinations, or suicidal or homicidal ideation. Axis I diagnosis was PTSD, major depressive disorder, and anxiety disorder, with a GAF score of 54. The examiner added that the Veteran might occasionally have some interference in her activities of daily living because she sometimes found it difficult to work, as well as some difficulty establishing and maintaining effective work/school and social relationships because she often preferred to be alone, and some "occasional interference with recreation or leisurely pursuits" because she was no longer interested in her leisurely pursuits. In August 2009, the RO denied the Veteran's claim, and in her ensuing notice of disagreement (NOD), the Veteran stated that she had told the May 2009 VA examiner that she was having suicidal ideation and would submit "another medical assessment" from the March 2009 private psychologist. In March 2010, the she submitted the report. In this report (dated in March 2010), the psychologist stated that the Veteran had not been able to work with others since the helicopter crash and was currently able to work "only because she works alone - and even that presents her with difficulties." The psychologist also stated that the Veteran thought about the crash on a daily basis which "causes her considerable physical, emotional, and mental distress." The psychologist added that the Veteran "has frequent suicidal ideation and suffers from almost continuous anxiety and depression," and stated that the Veteran's social and family relations were severely affected. She then provided an opinion that the Veteran "meets the criteria for a 70% disability rating for PTSD unless there is reduced reliability and productivity due to such symptoms as flattened affect, panic attacks more than once a week, impairment of short-and long term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective and social relationships." In May 2010, the Veteran was afforded another VA PTSD examination. During the examination the Veteran reported that she had been in a long-term relationship and living with her boyfriend since July 2009 and had a close relationship with her mother, but felt that her irritability/angry outbursts were harming her relationships. She also reported that she was working full time at an oil company with no lost time from work, but felt that she did not fit in and preferred to isolate herself. On mental status examination she denied any suicidal or homicidal ideation or intent, but did admit to recurrent thoughts about wishing that she had died in the helicopter crash during service. She also complained of nightmares, and said that she got about 5 to 6 hours restless sleep per night. The diagnosis was PTSD with depression, with GAF of 59. The examiner, a psychologist, added that the Veteran had "moderate impairment with respect to social functioning." In January 2014, the Veteran was afforded another VA PTSD examination, which was done by the May 2010 examiner. During the examination the Veteran reported that she continued to keep herself detached from friends and struggled with unprovoked irritability. She described having panic attacks with varying frequency and of a growing conflict with her mother; but said she was in a long term relationship with another veteran. She explained that since the accident, she had grown less tolerant of other people in general. She added that she was still working at the oil company and liked the job because she worked alone most of the time. The examiner observed that the Veteran was oriented times three, well groomed, and appropriately dressed. Throughout the interview, she appeared both anxious and sad, and had only fair eye contact with the examiner. There was no evidence of a thought disorder or psychosis, or suicidal or homicidal ideation; and she denied hallucinations or delusions. The examiner concluded that the Veteran was having moderate symptoms of PTSD, including persistent depressed mood and anxiety; detachment from friends, and occasional feelings of anxiety at work. GAF score was 59. According to the examiner, the Veteran's social functioning had not changed significantly since the last examination. In August 2017, a VHA psychiatrist at a VA Medical Center reviewed the entire file. The psychiatrist concluded that there was no evidence of impairment in reality testing or communication in any of the examinations, and "that the Veteran's occupational and social impairment with regards to PTSD since April 2009 can be best summarized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability perform occupational tasks only during periods of significant stress." Analysis According to the evidence of record, the Veteran has suffered from depressed mood, anxiety, suspiciousness, nightmares/sleep impairment, flattened affect, irritability, weekly panic attacks, and disturbances of motivation and mood throughout the appeal period. Even so, she has been fully alert and oriented with no delusional thought processes. In fact, despite the Veteran's PTSD symptoms, she is gainfully employed; socially involved with family and in a monogamous personal relationship; and independent in her activities of daily living. See VA medical records, and VA examination reports dated in May 2010 and June 2016. That being said, the Board is mindful that the Veteran is prone to outbursts of anger and has had trouble trusting people/a subjective sense of numbing and detachment, which causes conflicts in her social and job interactions. See, e.g., May 2009 VA examination report, in which the examiner concluded that the Veteran might occasionally have some interference in her activities of daily living because she sometimes found it difficult to work, as well as some difficulty establishing and maintaining effective work/school and social relationships because she often preferred to be alone. See also March 2010 private psychologist's assertion that the Veteran had not been able to work with others since the helicopter crash and was currently able to work "only because she works alone - and even that presents her with difficulties." The majority of the Veteran's symptoms (depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and memory loss) are reflected in the 30 percent rating criteria and the August 2017's VHA expert's impression was that the Veteran's PTSD causes no more than mild occupational impairment (see August 2017 VHA opinion, p. 5), which is the impairment level equating to a 10 percent rating. Notwithstanding this evidence weighing against the claim, based on a holistic perspective, the whole recorded history, and reconciling the various reports into a consistent picture (38 C.F.R. § 4.2), the Board is persuaded that the Veteran's PTSD has approximated moderate impairment on her social and occupational functioning throughout the appeal period, and thus finds that a disability rating of 50 percent is warranted. See 38 C.F.R. § 4.7 (providing for assignment of a higher rating where the disability picture more nearly approximates the criteria required for that rating). This is so particularly when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The evidence does not, however, support a rating higher than 50 percent, as the Veteran's PTSD has not been productive of the preponderance of symptoms contemplated by the next higher rating of 70 percent, such as obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently; spatial disorientation; neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships. In this regard, the Board notes that while the Veteran reported, after notice of the August 2009 rating decision, that she was experiencing "serious suicidal ideation" (see Veteran's October 2009 NOD), the Board finds the entirety of the evidence to be inadequate for a rating higher than 50 percent. As stated before, the Veteran is fully alert and oriented with no disordered thought processes; is engaged in substantially gainful employment; is socially involved with family (see, e.g., March 2010 statement from Veteran's cousin that he sees the Veteran "on a regular basis"); is involved in a monogamous dating relationship(s); and is completely independent in her activities of daily living without PTSD care or crisis intervention. This level of functioning does not comport with the private psychologist's declaration of severe symptomatology or her assignment of a GAF of 35 (which denotes altered reality or major impairment in several areas). It also does not support a rating of 70 percent. See, e.g., Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (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). Moreover, while the Veteran maintains that she is suicidal and should be granted a 100 percent rating, the Veteran has not suffered from total occupational and social impairment at any time during the appeal period. Thus, the criteria for the highest rating of 100 percent are also not met. Most of the very severe symptoms listed at that level, such as obsessional rituals that interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; persistent delusions or hallucinations; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name are not shown by the evidence. Although a family member said that he was worried about the Veteran's "suicidal ideation" (see March 2010 statement from Veteran's "100 percent PTSD service-connected" cousin), the Board does not find this conclusory statement from an admitted layperson, without discussion of the statements/behaviors driving such an assertion, to be at all probative. Indeed, there is no record of any suicidal ideation prior to the Veteran's October 2010 NOD (including from the Veteran's own privately consulted psychologist), and the Veteran is not on a PTSD treatment regimen and there is no record of any crisis intervention. A holistic analysis of the Veteran's disability picture does not approximate the level of impairment reflected by a rating of 70 or 100 percent. The Board accordingly finds that the criteria for a rating higher than 50 percent are not met and the benefit-of-the-doubt doctrine does not further apply. Finally, the Board notes that pursuant to its May 2016 remand, in June 2016, the RO sent the Veteran a letter a letter requesting the Veteran's authorization for records from the Veteran's privately consulted psychologist, but the Veteran never responded, so no additional private medical records could be obtained and this decision is based on the evidence of record. Additionally, in October 2017, the Veteran's representative's contends that "a psychiatrist or psychologist, for ethical reasons, is unable to provide a thorough review of a subject's psychiatric state which results in a report competent to satisfy the Board's medical questions." The Board notes that a psychiatrist or psychologist is precisely the specialty of physician uniquely qualified to comment on this (and any other veteran's) mental health. See, e.g., 38 C.F.R. § 3.304(f)(3). The August 2017 VHA expert provided no indication that a face-to-face interview was necessary to comment on the severity of the Veteran's mental health as opposed to reviewing the evidence of record. Thus, the Board finds that report to be competent and probative evidence. ORDER A disability rating of 50 percent, but no higher, for PTSD is granted; subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs