Citation Nr: 1756859 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 16-37 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from February 1944 through September 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A timely appeal was initiated by the Veteran and perfected thereafter by the appellant. The Veteran died in February 2015, during the pendency of the appeal in this matter. A timely request for substitution as the appellant was received from the Veteran's surviving spouse. She is recognized as the appellant. 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 all periods relevant to this appeal, the Veteran's PTSD was manifested by symptomatology more nearly approximating occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 50 percent initial disability rating, but no higher, for PTSD are met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, VA's duty to notify was satisfied by a January 2013 letter to the Veteran. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also met its duty to assist the appellant by obtaining all available treatment records and evidence identified by the Veteran and the appellant. Those records are associated with the claims file. VA examinations of the Veteran's PTSD were conducted in February 2013 and September 2014. Notably, in a September 2015 letter to the Veteran's former treating VA physician, the appellant raises concerns as to the thoroughness of the VA examinations that were afforded to the Veteran. Specifically, she expresses her belief that the line of questioning from the mental status interviews during the examinations was more suited for "boots on the ground" service personnel rather than the Veteran's specific case. To that end, she appears to be concerned that the examinations did not adequately flesh out the degree of trauma that the Veteran experienced during service. Although the Board takes the appellant's concerns seriously, it emphasizes that in evaluating the Veteran's PTSD, the Board is concerned primarily with the degree of social and occupational impairment that was caused by the symptoms and manifestations that were associated with the Veteran's PTSD. In that regard, there is no indication of any irregularity in the conduct of the February 2013 and September 2014 VA examinations, and indeed, the expressed findings, conclusions, and rationale from those examinations are adequate for purposes of evaluating the extent of the disability that the Veteran experienced because of his PTSD. Given the same, the Board concludes that the Veteran's VA examinations were adequate and sees no need in this case to seek out further psychiatric opinion. II. Analysis Service connection for the Veteran's PTSD was granted, effective from August 9, 2012, with a 30 percent initial disability rating. The Veteran and the appellant have asserted that a higher initial disability rating is warranted for the Veteran's disability. For all periods relevant to this appeal, the Veteran's PTSD was rated in accordance with the criteria under 38 C.F.R. § 4.130, DC 9411. That section provides the rating criteria used specifically for evaluating PTSD and instructs that PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 30 percent disability rating is assigned where the evidence shows that PTSD is productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (i.e., forgetting names, directions, and recent events). A 50 percent disability rating is assigned for PTSD that is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is appropriate for PTSD that is manifested by occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or the inability to establish and maintain effective relationships. A 100 percent disability rating is contemplated for PTSD that is productive of 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 himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; or memory loss for the names of close relatives, own occupation, or own name. Here, the evidence shows that the Veteran did not receive private or VA mental health treatment. During a February 2013 VA examination, the Veteran reported that he had been retired from his family's electronics business (the Board notes here that the Veteran elaborated during his September 2014 examination that he had been retired for the past 30 years). Socially, he described that he had good relationships with his parents and that he had been married previously to his first spouse for 35 years. He stated that he subsequently remarried and that he had been married to the appellant for 32 years. He did not report any marital problems or difficulties in his relationship with the appellant and denied having any history of legal problems or problems with alcohol or drugs. Regarding his symptoms, he reported chronic sleep disturbances, irritability, outbursts of anger, difficulty concentrating, hypervigilance, and anxiety. A mental status examination conducted by the VA examiner apparently confirmed the reported symptoms. The examiner concluded that the Veteran's PTSD was causing occupational and social impairment due to mild or transient symptoms that were decreasing the Veteran's work efficiency and ability to perform occupational tasks only during periods of significant stress. A Global Assessment of Functioning (GAF) scale score of 60 was assigned. During re-examination of the Veteran in September 2014, the Veteran reported that he had a "fantastic" relationship with the appellant. In terms of leisure activities, he stated that he rode horses in the Tournament of Roses Parade for 37 years until he was 80 years old. He stated that he lived on a ranch with the appellant and that they continued to keep and care for horses, although he qualified that statement to some degree by indicating that he "provides as much care of them as he is able to do." He reported that he and the appellant also belonged to an amateur radio club that met weekly for lunch, but again, appeared to indicate some decrease in his participation by stating that the appellant handled lunch planning and preparation. Concerning his symptoms, the Veteran and the appellant reported that the Veteran moved and made distressed sounds during his sleep. The Veteran reported his participation in atomic bomb tests during service and described current guilt and horror at thoughts of the aftermath of such testing. During the examination, the examiner noted that the Veteran had a flat affect and became agitated with mildly pressured speech while discussing details of the bomb tests. The Veteran described that generally, after being troubled by such memories for a few days or longer, he was able to rationalize that he was not responsible for the order for the bomb tests, and thereafter, was able to return to the things that bring him happiness. Indeed, the Veteran expressed happiness at planning to go shopping with the appellant to buy her a birthday present after the examination. Overall, the examiner noted symptoms that included recurrent, involuntary, and intrusive distressing memories; distressing dreams and nightmares; avoidance of distressing thoughts, memories, or feelings related to the distressing events; avoidance of external reminders that arouse distressing memories, thoughts, or feelings about the distressful events; persistent distorted cognitions about the cause or consequences of the traumatic events that caused the Veteran to blame himself or others; detachment or estrangement from others; irritability; anxiety; anger outbursts; sleep disturbance; and, mild memory loss such as forgetting names, directions, or recent events. The examiner opined that the Veteran posed no threat or danger of injury to himself or others. VAMC treatment records dated in October 2014 show that the Veteran and the appellant reported that his tempter was short, but no other description was given. A November 2014 VA treatment entry shows that neither the Veteran nor the appellant wanted a follow-up with mental health treatment. In January 2015, a treatment entry noted dementia and that a possible referral to neuropsychology was discussed, but that the appellant wanted to hold off. Another note from January 2015 noted difficulty with sleep due to PTSD. A January 2015 entry noted PTSD, anger issues and dementia, but it was noted that the Veteran may not be able to tolerate a full neuropsychological evaluation. Personal statements received from the Veteran from August through September of 2014 essentially echo the symptoms reported and noted during the September 2014 VA examination. Those statements appear to indicate that those symptoms had been chronic and recurring for some length of time. In a September 2015 statement, the appellant added that the Veteran seemed to lose interest in leisure activities such as photography, amateur radio, computers, and working in his workshop. She stated that at the end of his life, the Veteran began having hallucinations wherein he relived his traumatic experiences during service and was shouting orders to his service buddies. In a September 2016 statement, she added that the Veteran demonstrated new symptoms that included impairment in his judgment and abstract thinking and inability to maintain minimal personal hygiene. Overall, the evidence shows that the Veteran demonstrated chronic symptomatology that is essentially consistent with that listed under the criteria for a 50 percent disability rating under the General Formula. In that regard the evidence shows that, throughout the appeal period, the Veteran's PTSD was manifested by such symptoms as intermittent periods of depression; intermittent anxiety; flattened affect and pressured speech while discussing traumatic events from service; chronic sleep disturbance marked by thrashing and nightmares; anger; irritability; difficulty concentrating; recurrent, involuntary, and intrusive thoughts and memories of traumatic events during service; intermittent cognitive distortion and self-blame for traumatic events that occurred during service; some degree of estrangement and detachment from others; and, mild memory loss marked by forgetting names, directions, or recent events. Although the Veteran described during his VA examinations that he enjoyed a "fantastic" relationship with the appellant marked by genuine affection and enjoyment of her companionship and maintained various interests, other evidence in the record indicates that the Veteran's PTSD was causing some degree of isolative behavior and social impairment. Such impairment was noted during the Veteran's VA examinations. Moreover, both the Veteran and the appellant reported credibly that there had been some degree of decreased participation on the part of the Veteran in such activities as their weekly amateur radio meetings and riding and caring for horses. Still, given the Veteran's ongoing interest in activities and his ability to maintain a loving relationship with the appellant, the evidence is not consistent with a finding that the Veteran experienced deficiencies in most areas of his occupational and social functioning, amounting to inability to establish and maintain effective relationships much less, total occupational and social impairment. Moreover, the symptoms shown by the Veteran and the extent of those symptoms does not equate to the more severe symptomatology or loss of function that is contemplated by the General Formula for disability ratings of 70 percent or 100 percent under the General Formula. The Board notes that statements received from the appellant suggest that the Veteran experienced certain symptoms that are consistent with the assignment of a disability rating higher than 50 percent. In that regard, she reports that the Veteran demonstrated the inability to perform minimal personal hygiene. She reported also that toward the end of his life, the Veteran began experiencing hallucinations and would often shout orders to his service buddies. Although the Board is sensitive to those reported symptoms, the Board emphasizes that such symptoms were not noted during the September 2014 VA examination, which was conducted only five months before the Veteran's death. Moreover, there is no psychiatric opinion in the record that associates those symptoms with the Veteran's PTSD. Finally, even if such symptoms were associated with the Veteran's PTSD, the other symptoms associated with his PTSD, the severity thereof, and the degree of social and functional impairment shown by the Veteran throughout the appeal period are still not consistent with the criteria for disability ratings higher than 50 percent. Subject to the above, the Board notes that the Veteran was assigned a GAF score of 60 during the February 2013 VA examination. Under the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, GAF scores were used to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). Under the DSM-IV, GAF scores falling in the range of 51 to 60 denoted moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., having few friends, conflicts with peers or co-workers). GAF scores are not conclusively dispositive as to a veteran's level of psychiatric impairment. Rather, they are merely parts of a whole body of evidence that must be and has been considered in arriving at a decision. Here, the assigned GAF score of 60 during the February 2013 VA examination appears to be essentially consistent with the symptoms and degree of impairment shown throughout the appeal period, and moreover, is essentially consistent with the degree of impairment contemplated by the General Formula for a 50 percent disability rating. Based on the foregoing evidence and analysis, the Board concludes that the appellant is entitled to a higher 50 percent, but no higher, initial disability rating, assigned pursuant to DC 9411 and the General Formula. To that extent, this appeal is granted. ORDER A 50 percent initial disability rating, but no higher, for PTSD is granted, subject to the laws and regulations governing the payment of monetary VA benefits. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs