Citation Nr: 1756823 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-06 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel INTRODUCTION The Veteran had active service from January 1993 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In December 2015, the Veteran submitted a supplemental private medical opinion, which was received after the February 2014 statement of the case. The Veteran's substantive appeal was received after February 2, 2013; therefore, this evidence is subject to initial review by the Board unless the Veteran explicitly requests consideration by the Agency of Original Jurisdiction (AOJ), which has not been requested in this case. 38 U.S.C. § 7105 (e). Accordingly, the Board may consider this evidence in the first instance. The Veteran and his wife testified before the undersigned at a Board videoconference hearing in November 2016. A transcript is associated with the claims file. FINDING OF FACT For the entire period under review, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, but not by total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties VA has duties to notify and assist claimants in substantiating a claim for VA benefits. Neither the Veteran nor his representative has 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). II. Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Historically, service connection for PTSD was established in July 2010, at which time the RO assigned an initial 10 percent disability rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective April 29, 2010. In a February 2011 rating decision, the RO increased the Veteran's rating to 30 percent, effective November 12, 2010. That decision became final after one year from the date of the decision, and the Veteran filed a claim for an increased rating in June 2012. The September 2012 rating decision currently on appeal continued the 30 percent rating. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 30 percent is warranted for PTSD if 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, or mild memory loss (such as forgetting names, directions, recent events). 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 rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. A 100 percent rating 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. Evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating;" and the Board would not need to find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand without the examples listed in the rating criteria it would be difficult to determine the difference between a 30 and 50 percent rating. If the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. A veteran may only qualify for a given rating based on mental disorder by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency. Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation 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). According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), global assessment of function (GAF) was a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). While not determinative, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The revised DSM-5, which among other things, eliminates GAF scores, applies to cases certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093 (Aug. 4, 2014). This case was certified in March 2014; thus, the DSM-IV applies. According to the GAF scale, a score within the range of 61 to 70 represents mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or coworkers). A score within the range of 51 to 60 represents 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). A score of 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score between 31 to 40 indicates some 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). The Board notes that the GAF scale has been abandoned in the updated fifth edition of the DSM. In this case, however, the DSM-IV was in use at the time the medical entries of record were made. Thus, the GAF scores assigned remain relevant for consideration in this appeal. III. Factual Background In connection with his claim for an increased rating, the Veteran underwent a VA examination in July 2012. The Veteran reported that he was irritable, depressed, anxious, nervous, and that those symptoms were causing problems in his marriage. He reported struggling with his work and marital life. He said he felt depressed with decreased energy and interest in activities. He also reported becoming easily angry and irritable. He said he became anxious and nervous around crowds, and had panic attacks more than once per week. He reported that loud sounds made him jumpy, that he had intrusive thoughts of service, guilt, intermittent sleep, and avoidance behaviors, to include avoiding war-related coverage on television. He said he drank beers to calm him down and aid with sleep. With regard to his occupational and social history, he reported that he had worked in his current position for sixteen years, and may have missed approximately a month of work over the prior year due to his anxiety. He said his anxiety affected his job performance and caused him not to be promoted. He said he had been married since July 2001, and reported some marital problems stemming from his anger and irritability. He said he liked hunting and fishing, but had not engaged in those activities for the past few years. He did not go to church. On mental status examination, the Veteran was alert and oriented. His mood was irritable and his thought processes were coherent without delusions. He denied audio and visual hallucinations as well as suicidal or homicidal ideation, though he reported that when he became angry he felt like hurting others. He reported some memory problems to include names, numbers, words, forgetting to turn off the coffee pot and lights. He showed fairly intact insight and judgment. The examiner assigned a GAF score of 50 and noted that his symptoms had increased from the time of his last examination, affecting his marital relationship as well as his employment. Accordingly, the examiner opined that the Veteran showed a level of occupational and social impairment equivalent to 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. An August 2012 VA mental health treatment note noted that the Veteran was alert, oriented, groomed, cooperative, and open, with good eye contact, normal speech rate, no thought disorder, and no evidence of cognitive dysfunction. The Veteran denied suicidal or homicidal ideation, as well as feelings of hopelessness and helplessness. An October 2012 VA mental health treatment note observed that the Veteran was struggling with anger and frustration. In December 2012, a VA treatment note showed that the Veteran reported stress about killing someone during service, and that it affected his sleep and he thought about it often. He denied suicidal or homicidal ideation. A January 2013 VA mental health treatment note showed that the Veteran stated he had nightmares seven days a week and had low energy. He denied suicidal or homicidal ideation. A September 2013 VA mental health treatment note reflected the Veteran's anxious and irritable mood. He reported that he had recently been arrested for arguing with his neighbor. He reported difficulty sleeping and waking frequently through the night. He said he became anxious in large crowds of inmates at the prison where he worked and was easily startled by unexpected noises. He denied suicidal or homicidal ideation. On physical examination, he had an anxious/angry mood, normal speech, good eye contact, and intact memory. There was no evidence of delusions or hallucinations. In October 2013, he told his VA mental health treatment provider that "maybe others would be better off without him," though he said he was not actively considering suicide because of his child. He said he had nightmares about his time in service and often woke up in a sweat. He had good eye contact, with normal speech and normal thought process. There was no evidence of cognitive dysfunction. A November 2013 VA treatment note shows that the Veteran had symptoms to include intrusive thoughts, extreme irritability, angry outbursts, and difficulty getting along with people. He said he had difficulty getting along with his bosses and coworkers. He said he drank four to five beers a night to help fall asleep. He said he occasionally became paranoid. The Veteran obtained a private medical opinion in November 2015. He reported being married for fifteen years, and said that his prior relationships had been marked by fighting, arguing, and infidelity. He said he lived with his wife and son and had worked at a federal correctional officer for fifteen years. He said for the past year he worked as a counselor at the prison. He said he had emotional problems on the job, and often left work due to feeling "pissed off." He said his PTSD began interfering with his job in 2010, when he felt anxiety and panic. He reported current symptoms to include involuntary and distressing memories of his time in service, to include disturbing and distressing dreams that he wakes up from "anxious, scared and sweaty." He denied dissociative flashbacks. He described becoming emotionally upset when reminded of his time in service, to include television reports, hearing gunfire or fireworks, the sound of helicopters, the smell of cordite, and protests. When he was triggered, he noted his heart raced, his breathing changed, and he broke out in sweats. He said he avoided thoughts and feelings about his in-service experiences. He avoided crowded areas, sporting events, and nightclubs. The examiner opined that the Veteran had difficulties with trust and a feeling like the world is a dangerous place. The Veteran said he had guilt or shame about 40 to 50 percent of the time. He reported diminished interest or pleasure in usual activities, including hunting and fishing and sports. He reported feelings of alienation and detachment, a persistent inability to experience positive emotions such as happiness, satisfaction, love and caring. He said he had extreme hypervigilance, exaggerated startled response, problems with concentration and focus, sleep disturbance, and occupational impairment. On mental status examination, the Veteran was edgy, hesitant, cooperative, and uneasy, with fair concentration, normal attention span, normal psychomotor activity, coherent but hesitant and uncertain speech patterns, and normal affect. He denied suicidal ideation but said he "could care less" about his life. He had a low energy level and fatigue. He denied mania or hypomania. He reported daily feelings of agitation and anxiety. He reported feelings of harm towards others. At his September 2016 Board hearing, the Veteran reported that his PTSD was a daily struggle for him. Specifically, he stated that he could not eat in a restaurant unless he could see the door, could not tolerate being in crowded areas, had panic attacks four to five times per week, conducted numerous "ritualistic security checks" prior to going to sleep, suffered from nightmares and an ability to sleep, had trouble dealing with others, suffered from trust issues, had very few friends, reacted impulsively and angrily in almost all situations, and was hypervigilant. See September 2016 Board Hearing Transcript at p. 6. His wife reported that he had "terrible anger management problems" and it was like "walking on pins and needles daily" around him, as he could "go off quickly ... quite often." Id. at p. 21. IV. Analysis After a careful review of all lay and medical evidence of record pertinent to the applicable time period at issue, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that the most persuasive evidence regarding the overall severity of his social and occupational impairment due to his service-connected PTSD supports the award of a 70 percent rating. While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected PTSD, the evidence shows no distinct periods of time during the appeal period when the Veteran's disorder varied to such an extent that a rating greater or less than 70 percent would be warranted. See Fenderson, 12 Vet. App. at 126. Overall, the Board finds that throughout the appeal period, the Veteran's PTSD was manifested by: depressed mood and anxiety; frequent panic attacks occurring more than once a week; chronic sleep impairment; recurrent and intrusive distressing recollections related to his military experiences; hypervigilance; angry outbursts and irritability; avoidance behaviors, including avoiding the news and withdrawal from work and family; guilt; alienation and detachment; and mild impairment in memory. Collectively, these symptoms are of the type, extent, severity, and/or frequency that more nearly approximate occupational and social impairment with deficiencies in most areas of the Veteran's life, including work, family relations, judgment, thinking, and mood. However, the Board finds that the preponderance of the evidence is against a finding that his PTSD resulted in total occupational and social impairment to warrant a 100 percent disability rating. In this regard, there is no evidence in the record showing that his PTSD was manifested by such symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Indeed, his VA treatment records indicate that the Veteran has consistently been noted to be oriented to person, time, and place. There is nothing in the record which suggests that he has ever suffered from hallucinations or delusions. There is also nothing in the record suggesting that he has been unable to perform activities of daily living, that he requires personal monitoring for safety, or that he is incapable of maintaining personal hygiene. To the contrary, his VA treatment records and VA examination reports note that the Veteran's functioning can be described as satisfactory as he has routine behaviors, is capable of not only self-care, but also the care of his family, is able to handle his financial affairs, and is able to engage in generally normal conversation. In addition, total social and/or occupational impairment has not been demonstrated as he has been able to maintain a 15-year marriage to his wife and a full time job. Instead, the Board finds that the Veteran's PTSD has been manifested by symptoms that are of the type, extent, frequency, and/or severity that is indicative of occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. In this regard, throughout the appeal period, the Veteran has endorsed thoughts of extreme anger, irritability, and hypervigilance, and has notably reported that he has experienced panic attacks anywhere from one to five times per week. In addition, though the Veteran has mostly denied suicidal and homicidal ideation, he has made comments suggesting that the world would be "better off without him," and has endorsed feelings of harm toward others. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.) Moreover, the record contains evidence that the Veteran has suffered in maintaining effective work and social relationships and has tended to isolate himself in both personal and professional settings. The Veteran has reported on multiple occasions that though he has maintained his employment, he has used much of his sick leave to stay home. Moreover, he has reported that his marriage has suffered as a result of his PTSD symptoms. Indeed, at the Veteran's Board hearing, his wife reported that he had "terrible anger management problems" and it was like "walking on pins and needles daily" around him, as he could "go off quickly ... quite often." See Board Hearing Transcript at p. 21. The Board also notes that throughout the appeal period, the Veteran has been assigned a GAF score of 50. As noted above, a GAF score of 41 to 50 is defined as denoting 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). A GAF score, while not dispositive, is nevertheless probative insofar as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The Board finds that the rating assigned herein is consistent with the Veteran's assigned GAF score of 50 during the relevant period. The Board notes that, in analyzing this claim, the symptoms identified in the General Rating Formula for Mental Disorders have been considered not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms to warrant a higher rating for PTSD. See Mauerhan, supra. While the Veteran has not demonstrated each and every symptom associated with the 70 percent rating criteria since the beginning of the appeal period, the Board emphasizes that not all of the symptoms must be shown to warrant a higher rating. In assessing the severity of his PTSD, the Board has considered the competent lay assertions regarding the symptoms the Veteran has experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the criteria needed to support a higher rating require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support the assignment of a higher rating at any point during this appeal than 70 percent. The Board has further considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's PTSD; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning any staged rating for this disability is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the United States Court of Appeals for Veterans Claims (Court) has held that entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Veteran has not reported, and the evidence does not otherwise reflect, that he has been unemployed during the claim period due solely to service-connected disability or that he has been prevented from securing and following gainful employment due to any such disability. As there is no evidence of unemployability due to service-connected disability, the question of entitlement to a TDIU is not raised under Roberson and Rice in this instance. In sum, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD symptoms more nearly approximate the criteria under Diagnostic Code 9411 for a rating of 70 percent, but no higher, for the entire period on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130. ORDER A 70 percent rating for PTSD for the entire appeal period is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs