Citation Nr: 1757715	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  13-18 824	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Mariah N. Sim, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1965 to August 1967.
This matter comes to the Board of Veteran's Appeals (Board) on appeal from a June 2011 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
 
This case was previously before the Board in November 2016. At that time, the Board remanded the claim for further development.


FINDING OF FACT

The Veteran's PTSD symptoms have more nearly approximated occupational and social impairment, with deficiencies in most areas.


CONCLUSION OF LAW

The criteria for a rating in excess of 50 percent rating for PTSD, but not higher than 70 percent, have been met or approximated.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  Initially, the Board notes that VA issued legally conforming VCAA notice letters.

Additionally, VA's duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2017).  VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits in accordance with 38 U.S.C. § 5103A (2012) and 38 C.F.R. § 3.159 (c) (2017).  Relevant service treatment and other medical records have been associated with the claims file. Also, the Veteran was afforded VA examinations in November 2009, April 2011, and November 2015 which are fully adequate for decision-making purposes.  Hence, the duties to notify and to assist have been satisfied.

II. Disability Evaluation of PTSD

The Veteran contends that he is entitled to a disability rating in excess of 50 percent for his service-connected PTSD. 

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 (2012); 38 C.F.R. § 4.1 (2017). 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.  38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant.  38 C.F.R. § 4.3 (2017).  

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-10   (2007); Fenderson v. West, 12 Vet. App. 119, 126-127 (2001).

Psychiatric disabilities are rated under the General Rating Formula for Mental Disorders (General Rating Formula).  PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, under which a 50 percent rating is assigned 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 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 disability rating is in order when 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 work like setting); inability to establish and maintain effective relationships.  Id.

A 100 percent disability rating is in order when there is total occupational and social impairment, due to symptoms such 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. 

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27(Fed. Cir. 2004).  Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating agency shall 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. Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.  38 C.F.R. § 4.126(b).

The regulations were recently revised to incorporate the DSM-5 rather than the DSM-IV. However, these provisions only apply to cases received by or pending before the AOJ on or after August 4, 2014.  The change does not apply to cases certified to the Board prior to that date. In this case, the Veteran's claim was certified to the Board prior to August 4, 2014; therefore, the regulations pertaining to the DSM-IV are for application.

Psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. According to the Fourth Edition of the "American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders" (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also 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).

During the appeal period, the Veteran's GAF scores ranged from 35 at worst, to 65 at best.  

GAF scores ranging between 31 and 40 are assigned when there is 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). 

GAF scores ranging between 41 and 50 are assigned when there are 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).

GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). 

GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships.

In November 2009, the Veteran was afforded a VA examination where he reported he had been married 3 times, but was currently single. He stated he believed he could not date anyone due to his temper, as well as his nightmares that prevented him from staying the night with women. He denied any children from his marriages, stated he had one child out of wedlock he had never met, stated he did not have friends, and did not enjoy being around people in general. He reported difficulty going to the mall, and that he had not been to the state fair in 10 years. As hobbies, the Veteran reported playing guitar alone, fixing up an old car, and spending time with his brother. He reported smoking marijuana since the 1970s, approximately5 to 6 days a week and 2 to 3 joints a day, to help him stay calm. He denied any issues related to his marijuana use. He reported getting approximately 4 to 5 hours of sleep per night, with interrupted sleep, and with distressing dreams that sometimes caused him to try and crawl under his bed 3 or 4 times a year. He stated his flashbacks, nightmares, anxiety, and hypervigilance interfered with him forming meaningful romantic relationships and friendships. 

On psychological examination, the Veteran presented as clean, neatly groomed, appropriately and casually dressed, cooperative, friendly, relaxed, in a good mood, with normal affect, and unremarkable speech or psychomotor activity. He was noted to be intact to person, time, and place, with intact attention, unremarkable thought process and content, and with intact judgment and average intelligence. The Veteran understood he had a problem, exhibited appropriate behavior, did not have obsessive or ritualistic behavior, and denied suicidal and homicidal thoughts. The Veteran was noted to experience anxiety attacks lasting 5 minutes, once or twice a month. The Veteran was noted to have good impulse control, no violence, and ability to maintain personal hygiene, with slight to moderate problems with activities of daily living in 3 areas. He was noted to avoid crowds, not trust others, experienced anxiety when around people, with loss of interest and motivation in activities. The Veteran's memory was observed to be normal. The examiner noted chronic symptoms related to persistent re-experiencing of the traumatic event, persistent avoidance of stimuli and numbing of general responsiveness, and persistent symptoms of increase arousal. The examiner determined that the Veteran experienced reduced reliability and productivity due to PTSD symptoms. A GAF score of 65 was assigned.

A November 2009 private treatment record indicates that the Veteran received treatment from a psychiatric clinic between 2003 and 2009. A diagnosis of chronic PTSD, dysthymic disorder was assigned. The private treatment provider indicated the Veteran experienced nightmares 3 times a month, and with flashbacks, panic attacks once or twice a week lasting 10 to 15 minutes. The treatment provider noted the Veteran had intrusive thoughts, startled easily, was hypervigilant, did not socialize at all, severe impairment of memory, with auditory hallucinations, visual hallucinations, depressions, anger, agitation, helplessness, and suicidal ideation. The private treatment provider stated the Veteran was unable to sustain social and professional relationships, and determined the Veteran was permanently and totally disabled and unemployable. The treatment provider reported that the Veteran heard his name being called 2 to 5 times a week, hears cars drive to his residence 3 to 4 times a week, hears noises in his house 2 times a week, and sees shadows moving out of the corners of his eyes 2 times a week. The Veteran was noted to feel depressed 50 to 60 percent of the time, with no energy, no interest in things, easily angered, and easily agitated. The private treatment provider opined that the Veteran was mentally competent to manage his own financial affairs, capable of making life-changing decisions, and did not require a payer to manage his money. 

In April 2011, the Veteran was afforded a VA examination where he reported he was being treated by an outpatient psychiatrist in North Carolina for PTSD and medication management. He denied any hospitalizations for a mental disorder, presence of symptoms within the last year, and reported he took daily medication but did not participate in group or individual therapy sessions. The Veteran stated his medication helped him sleep better, with some notable improvements, but overall he indicated he still experienced symptomatology of his PTSD. He reported he was divorced, last married over 9 years ago, denied significant romantic relationships since November 2009, with regular contact with his mother and brother. He reported he had few close friends, and that he spent his leisure time with them, but that he was irritable and argumentative on occasion. As hobbies, the Veteran reported enjoying playing the guitar and listening to music. He reported smoking marijuana twice a day. The Veteran reported sleep impairment, with difficulty falling asleep and staying asleep, resulting in 2 to 5 hours of sleep per night. He denied homicidal and suicidal ideation, but endorsed increased arousal, road rage, outbursts of anger, and hypervigilance.

On psychological examination, the Veteran presented as clean, appropriately dressed, cooperative, anxious, with pressured speech, and normal affect. He was observed to have intact attention, and was intact to person, time, and place. He was observed to have average intelligence, fair judgment and insight, no hallucinations, appropriate behavior, no violence, good impulse control, and ability to maintain minimum personal hygiene. The examiner noted no problems with activities of daily living, and normal memory. The examiner noted chronic symptoms related to persistent re-experiencing of the traumatic event, persistent avoidance of stimuli and numbing of general responsiveness, and persistent symptoms of increase arousal. The examiner opined the Veteran's primary diagnosis was PTSD, as due to military stressor exposure. Specifically, the Veteran reported seeing his friend being crushed and killed in an accident. At this VA examination, the Veteran endorsed mild to moderate social impairment related to his PTSD symptomatology. The examiner opined the "prognosis for the Veteran is good... and it is expected that with more frequent treatment his psychiatric symptoms and functional abilities would improve." The examiner determined the Veteran's PTSD symptoms cause mild to moderate impairment. A GAF score of 64 was assigned. 

In November 2015, the Veteran was afforded a VA examination where he reported he had a close relationship with his niece and nephew, whom he saw several times a week, with whom he engaged in enjoyable activities which included going to the race track and playing the guitar. He also reported spending time with close friends, and denied any significant difficulties engaging in any activities of daily living. However, he further reported his circle of friends is "getting scarce" due to interpersonal issues and/or death. He stated he had 2 to 3 friends, with whom he spent time once every 1 to 2 weeks. He reported smoking marijuana alone and with his friends, at about 1 to 5 joints daily. He reported exercising several times a week and adequately tending to his personal hygiene, but that his diet could be improved, and that "eating by yourself ain't fun." The Veteran reported mowing the lawn, raking the leaves, working on his car, or listening to the radio.  Further, the Veteran reported grocery shopping once a week, and stated he dreads this activity for fear of "running into anybody hateful." The Veteran reported he was divorced and last married 23 years prior to the examination. He stated he had rekindled his relationship with his most recent ex-wife for 5 or 6 years, but that they had not had contact for the prior year. He reported his mother had passed away 3 years prior, and that his brother had recently passed away. The Veteran stated he received mental health treatment from a private practitioner, but that his last appointment was a year prior to this VA examination. He denied taking any medications for his PTSD, but reported he self-medicated with marijuana. He reported daily intrusive thoughts related to the trauma, approximately 3 nightmares a year, nightly sleep disturbances, denied he exhibited avoidance behaviors, frequent irritability, and endorsed that he had a persistently negative emotional state. He denied any suicidal ideation or intent. 

On psychological examination, the Veteran presented as generally open and cooperative, with initial reluctance but ultimately put forth adequate effort. He was observed to be highly talkative, fully engaged, somewhat tangential and preservative at times, responsive, with valid information presented. The examiner determined the Veteran to be a reliable informant at this VA examination. He presented with good hygiene and grooming, casually dressed, normal motor functioning, normal speech, alert, attentive, oriented to person, place and time, and normal intact memory. He was observed to have logical and organized thought processes without evidence of delusional thought content or perceptual disturbances. The examiner noted that the Veteran's mental health symptoms had impacted his daily life. Specifically, the Veteran experienced notable difficulties managing irritation with others, as well as difficulties maintaining relationships. The examiner noted that the Veteran's reports of his PTSD symptomatology appeared to have lessened in severity and frequency since the prior VA examination. The examiner suggested this may have been due to his cannabis use or the natural progression of his symptomatology. The examiner opined that the Veteran experienced occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner noted the Veteran to have feelings of detachment or estrangement from others. A GAF score of 65 was assigned. 

For the entire period on appeal, the Board finds that a rating of 70 percent for the Veteran's PTSD is warranted. The Board notes that the Veteran has demonstrated such symptoms as: auditory hallucinations, visual hallucinations, suicidal ideation, depression affecting the ability to function independently, appropriately, and effectively, and the inability to establish and maintain effective relationships. Therefore, the Board finds that the Veteran's symptoms have more nearly approximated occupational and social impairment, with deficiencies in most areas. 38 C.F.R. § 4.130, Diagnostic Code 9411. 

Although the Veteran's symptomatology fluctuates within the record, the Veteran was noted by his private treatment provider to have delusions, hallucinations, suicidal ideation, depression at least 50 percent of the time, with no energy, loss of interest in activities, and severely impaired memory. The private treatment provider treated the Veteran for a period of at least 6 consecutive years. The record also indicates that the Veteran is always noted to be polite, cooperative, with linear and logical thought processes, without obsessional rituals which interfere with routine activities, no impaired impulse control, no spatial disorientation, and no neglect of hygiene. At all times within the appeal period, the Veteran is noted to be appropriately well dressed and well-oriented to time and place, and able to maintain personal hygiene. The Board notes that the Veteran does not suffer from total occupational and social impairment, and, therefore, does not warrant a 100 percent rating for PTSD. The Veteran routinely reported having a small, but consistent, circle of friends, and maintaining regular contact with family members. Therefore, the Board finds that a rating in excess of 50 percent, but not higher than 70 percent, for PTSD is warranted because occupational and social impairment with deficiencies in most areas was shown. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 

In addition, the Board notes that the GAF scores have been consistent with a rating in excess of 50 percent, but not higher than 70 percent. On one occasion has the Veteran's GAF score been 35. Although the GAF score of 35 was only noted once in the record, it stems from treatment over a 6 year period. GAF scores ranging between 31 and 40 are assigned when there is 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). 

Weighing the evidence of record, the Board finds that the Veteran's PTSD symptomatology more nearly approximates the schedular criteria for a 70 percent rating under Diagnostic Code 9411. 


ORDER

A rating in excess of 50 percent for PTSD, but not higher than 70 percent, is granted.



____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs