Citation Nr: 1758051	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  09-31 073	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period prior to March 23, 2011.



REPRESENTATION

Veteran represented by:	Nancy C. Lenvin, Attorney



ATTORNEY FOR THE BOARD

K. Josey, Associate Counsel





INTRODUCTION

The Veteran served on active duty with the United States Navy from August 1998 to August 2003.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Veteran testified before the Board in January 2012.  This case was previously before the Board in April 2012, September 2015, and September 2016, when it was remanded for Agency of Original Jurisdiction (AOJ) development.  The case has been returned to the Board at this time for further appellate review.

A September 2014 rating decision granted an increased evaluation of 100 percent for the Veteran's service-connected PTSD, effective March 23, 2011.  As the Veteran has not expressed satisfaction with the grant of a 50 percent evaluation for the period prior to March 23, 2011, the issue of entitlement to a higher rating for this period remains on appeal.  See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (a veteran is presumed to seek the maximum benefit permitted under the regulations).  


FINDING OF FACT

The Veteran's service-connected PTSD prior to March 23, 2011, was not manifested in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood.


CONCLUSION OF LAW

The criteria for an initial disability evaluation in excess of 50 percent for service-connected PTSD prior to March 23, 2011, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule).  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activities, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the claimant has expressed dissatisfaction with the assignment of an initial evaluation following an award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).  

Here, the Veteran has been assigned a 50 percent evaluation under Diagnostic Code 9411 for PTSD for the period prior to March 23, 2011, and a 100 percent evaluation thereafter.  This diagnostic code uses the General Rating Formula for Mental Disorders for rating criteria.  38 C.F.R. § 4.130.  

Under the general formula, a 50 percent disability 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 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.  38 C.F.R. § 4.130, Diagnostic Code 9411.

A 70 percent rating is warranted where 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 worklike setting); or inability to establish and maintain effective relationships.  Id. 

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.  Id.

The United States Court of Appeals for the Federal Circuit held that 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."  Vasquez-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 symptom, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas;" that is, "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'"  Vasquez-Claudio, 713 F.3d at 117-18.

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."  38 C.F.R. § 4.126(a).  The Board 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 examination."  Id. 

The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Diagnostic and Statistical Manual of Mental Health Disorders (4th ed. 1994) (DSM-IV).  Scores ranging from 41 to 50 reflect 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 GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning.  A GAF score of 61 to 70 indicates mild psychiatric symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning.  DSM-IV; 38 C.F.R. §§ 4.125, 4.130.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria.  Carpenter, 8 Vet. App. at 242.  An assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder, which provide the primary basis for the evaluation assigned.  See 38 C.F.R. § 4.126(a).  Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment.  Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).

The Veteran was seen in a VA PTSD clinic from February to June 2007.  In a March 2007 VA treatment note, the Veteran described being angry and annoyed by his experiences in the military.  Contemporary VA treatment records indicate that he was a student studying music recording and video production, and also worked at an internet retail company.  He recorded a GAF score of 60 on this visit.  In an April 2007 VA treatment note, the Veteran indicated a tendency to isolate himself from new social interactions out of a concern for not being able to control the situation, and was feeling increased detachment from people.  The Veteran later reported that he made an effort to engage in some social activities and found them enjoyable and nonthreatening.  He reported in a May 2007 treatment note being interested in having a romantic relationship but having difficulty meeting people.  The practitioner also noted avoidance, physiological responses to emotional distress, and emotional numbing during this treatment visit.  In June 2007, the Veteran recorded a GAF score of 65, and continued to work full time and attend school, eventually earning a certificate in audio engineering. 

In a July 2008 treatment record, the Veteran reported depression and decreased interest in social events.  He continued to work, but reported that his performance was slipping due to his depression, poor concentration, and decreased energy.  The practitioner noted that he was well-groomed and fully oriented.  

The Veteran sought private treatment for PTSD beginning in October 2008.  Although VA made reasonable attempts to obtain these records, the psychotherapist only provided a detailed opinion letter written in October 2009, summarizing her treatment of the Veteran over the previous year, and not the full record of progress notes from each visit.  The letter identifies social impairment, including withdrawal from social settings and avoiding talking about his experiences in Iraq with family, friends, fellow veterans, and his private doctor.  The psychotherapist identified occupational impairment as well, noting decreased motivation and difficulty with organizational skills such as remembering appointments and arriving places promptly.  She described the Veteran's affect as flat with stereotyped speech, and noted symptoms such as sleep disturbances, hypervigilance, and weight gain.  

The Veteran also returned to the VA PTSD clinic for treatment from September 2008 to July 2009.  In September 2008, the Veteran reported anhedonia, problems concentrating, depression, social isolation, irritability, trauma re-experiencing, and hyperarousal.  His GAF score was 48.  He was working but was not pursuing any internships in audio engineering, and he reported in October 2008 that he quit his job after a coworker getting laid off made him uneasy.  In this visit, he also reported trouble falling asleep and often waking up during the night.  The practitioner noted that he was well groomed and fully oriented, but that his thought process had some circumstantiality.  In a January 2009 treatment note, the Veteran reported that he was still unemployed and avoiding talking to people or answering the phone.  He also reported he had been drinking less, and his GAF score was 55.  In February 2009, the Veteran reported getting a new job, and that his anxiety regarding social settings was somewhat reduced.  He reported no panic attacks.  In May 2009, he was excited to report an anticipated job change and plans to return to school in the fall to continue his audio engineering education.  In July 2009, the Veteran reported that he had experienced some increased symptoms of depression in the previous month, but that these had decreased, and he was beginning a month-long vacation to see his family.

Throughout this time period, beginning in January 2009, his thought content and process were noted as linear and goal directed, without circumstantiality, tangentiality, or looseness of associations, and without delusions.  These records also reflect that, throughout the entire period on appeal, the Veteran lived in a rented apartment, and at no time reported difficulty maintaining the rent.  The Veteran never reported any suicidal ideation or panic attacks.

A June 2010 VA treatment note indicated that the Veteran felt he was doing better, and did not want to re-engage with VA PTSD treatment.  He reported feeling connected to family and having friends, having a part-time job, and recently finishing another semester of school.  

Following a review of the relevant evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent for PTSD prior to March 23, 2011.  The Veteran's symptoms during this period indicate some social impairment, primarily as he was reluctant to engage in social situations; however, the Veteran did display good relationships with his family, and indicated an effort to maintain and improve those relationships, including by taking a month off of work to go visit family.  

During this period, the Veteran experienced some unemployment, but was twice able to secure new employment to fit his needs and schedule.  He also successfully completed a certificate program and later returned to school for further education in audio engineering, both during this period.  He was also successful in maintaining the rent on his apartment.

Although the Veteran did consistently report depression and anxiety that occasionally affected his mood during this period, these symptoms did not hinder the Veteran's ability to maintain employment or relationships with his family prior to March 23, 2011.  The Board further notes that episodes of depression intensified and resolved throughout this period, and were not continuous.  Additionally, the VA examiners and treatment providers consistently reported that the Veteran was fully oriented to time, place, and person and had good hygiene during this period.  Although there was a short period in which his thought processes contained some circumstantiality, this ultimately did not impair his judgment, speech, or impulse control.  

The GAF scores ranging from 50 to 65 also support the contention that the Veteran's disability did not rise to the level of occupational and social impairment with deficiencies in most areas throughout the period on appeal, as these indicate moderate to mild symptoms.  The GAF score of 48 in September 2008 indicates more serious symptoms, as during this period the Veteran had left his job and was not pursuing internships in his area of interest.  The Veteran, however, never displayed other serious symptoms, such as suicidal ideation, severe obsessional rituals, or frequent shoplifting, and continued to maintain his relationship with his family; within four months, his GAF score had risen to 55.

The Veteran was able to maintain familial relationships and made efforts to forge new social relationships during the period prior to March 23, 2011, and he maintained employment while pursuing schooling as well, with no impairment in his judgment and only occasional significant impairments in mood, concentration, and depression.  Accordingly, the Veteran's disability did not rise to the level of occupational and social impairment with deficiencies in most areas required for a 70 percent evaluation for that period.


ORDER

Entitlement to an initial rating in excess of 50 percent for PTSD for the period prior to March 23, 2011, is denied.




____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs