Citation Nr: 1800148	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  14-01 356	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Martinez, Associate Counsel






INTRODUCTION

The Veteran served on active duty from April 1977 to August 2000.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  

When this case was last before the Board in December 2015, it was remanded for additional development.  The case is now again before the Board for further appellate action.  

The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System.


FINDING OF FACT

The Veteran's PTSD has not been productive of reduced reliability and productivity; deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent for PTSD have not been met throughout the period of the claim.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 






REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  However, VA is not required to assist a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

The record reflects that the Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been obtained, to the extent they have been identified by the Veteran.  The Veteran has also been afforded appropriate VA examinations in relation to her claim.  

Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to further substantiate her claim.  The Board is also unaware of any such evidence.  Furthermore, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board remand.

Accordingly, the Board will address the merits of the Veteran's claim.

II. Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130, DC 9411.  In pertinent part, a 30 percent disability rating is warranted for 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, mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent disability rating is warranted 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 disability 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 worklike setting); and inability to establish and maintain effective relationships.  

Finally, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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; and 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 the Veteran's symptoms, but it must also make findings as to how those symptoms impact the 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.  Nevertheless, as 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.
  
The symptoms considered in determining the level of impairment under the General Rating Formula for Mental Disorders are not restricted to the symptoms provided in the diagnostic code.  Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the fifth edition of the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM-V).  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

It should be noted that prior to August 4, 2014, VA's Rating Schedule for mental disorders was based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV").  38 C.F.R. § 4.130.  Like in this case, diagnoses many times included an Axis V diagnosis, or a Global Assessment of Functioning ("GAF") score.  In 2013, the DSM was updated with a 5th Edition ("DSM-V"), which recommends that GAF scores be dropped due to their "conceptual lack of clarity."  See DSM-V, at 16.  However, since the Veteran's claim was originally filed prior to the adoption of the DSM-V, the DMS-IV criteria will be discussed in the analysis set forth below.

The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  Carpenter v. Brown, 8 Vet. App. 240 (1995).  Pertinent to this case, GAF scores ranging from 61 to 70 indicate that a veteran has some mild psychiatric symptoms (e.g., depressed mood and mild insomnia) or experiences some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but is generally functioning pretty well, and has some meaningful interpersonal relationships.  GAF scores ranging from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co-workers).  

III. Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must weigh against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

IV. Factual Background and Analysis

In June 2010, the Veteran filed a claim for increased rating for her service-connected PTSD, currently evaluated as 30 percent disabling.

In May and July 2010, the Veteran reported persistent nightmares and intrusive thoughts related to her service connected trauma.  Specifically, she endorsed thoughts and nightmares revolving around death of those she had recruited and the deaths that she experienced during her active service.  Additionally, the Veteran stated that she would not go back to sleep after having a nightmare, but would generally be "okay" in the morning.  Furthermore, the Veteran stated that she stayed in contact with old friends, and enjoyed her family, gardening, and watching TV.  Moreover, she denied suicidal and homicidal thoughts, as well as alcohol or substance abuse. 

The Veteran was engaged in individual therapy from July 2010 to August 2011.  The Veteran stated that she has not been treated by any mental health professional since 2011.  Moreover, she denied taking any psychiatric medication or being hospitalized due to a psychiatric condition after 2010.

A September 2011 correspondence from the Veteran's VA treating physician indicates that the Veteran's primary symptoms of PTSD were prominent frequent nightmares and distress at reminders of the in-service traumatic events.  The VA treating physician also stated that the Veteran exhibited significant avoidance and numbing, as well as difficulty sleeping and hypervigilance.

VA treatment records from November 2011 indicate that the Veteran was able to function without problems in her job, and denied depression and memory problems.  Treatment records from January 2012 show no indications of acute distress, psychomotor abnormalities, paranoia, delusions, suicidal or homicidal thoughts, perceptual abnormalities, or feelings of helplessness, hopelessness, or worthlessness.  Additionally, in April 2012, the Veteran stated that she was doing fine and indicated that she did not need mental health services at that time.  She also denied suicidal or homicidal ideation, intent, or plan.  Furthermore, in September 2011 and January 2012, the Veteran was assigned a GAF score of 51, which is indicative of moderate symptoms or moderate difficulty in social or occupational functioning.

In February 2016, the Veteran reported that her main concerns were anxiety, avoidance of large crowds, a feeling that "something bad is going to happen", and weekly nightmares about her in service trauma, after which she would not go back to sleep.  The Veteran also stated that she avoided places such as movies, football games, and concerts, as she felt hypervigilant in crowded places.  Further, she denied having intrusive thoughts or memories, unless prompted to talk about her trauma.  In addition, the Veteran reported missing work two times since July 2010 due to her psychiatric condition; specifically, after bad nightmares.  However, she denied other work-related performance issues associated with her psychiatric condition, and stated that she generally got along well with co-workers.

The Veteran was afforded a VA psychiatric examination in July 2010.  The examination report indicates that the Veteran exhibited adequate appearance; unremarkable psychomotor activity, speech, and thought process; cooperative attitude; normal mood and affect; normal attention, orientation, and memory; and impulse control.  The examiner found no evidence of delusions, hallucinations, panic attacks, inappropriate or obsessive behavior, suicidal or homicidal thoughts, or problems with activities of daily living.  Additionally, the examiner stated that the Veteran exhibited dysphoric and anxious mood, and some social isolation, but adequate judgment and work response.  Furthermore, the Veteran was assigned a GAF score of 63, which is indicative of some mild psychiatric symptoms or some difficulty in social, occupational, or school functioning, but generally functioning well, and some meaningful interpersonal relationships.

The Veteran was afforded an additional VA psychiatric examination in February 2016.  The examiner noted that the Veteran exhibited adequate appearance, as well as friendly and pleasant behavior with good eye contact and no tremors or abnormal movements.  The examiner further noted that the Veteran had euthymic mood with mild anxiety or stress; intact insight and judgment; and no flight of ideas, obsessions, or preoccupations.  The examination was also negative for suicidal and homicidal ideations, as well as for auditory and visual hallucinations.  Furthermore, the examiner concluded that the Veteran's PTSD caused mild impairments.  In support of this opinion, the VA examiner stated that the Veteran reported her symptoms were not interfering with her employment, and had not felt the need to seek out mental health treatment since 2010.

The Board has carefully reviewed the entire record, and determined that a disability rating in excess of 30 percent for the Veteran's PTSD has not been warranted under Diagnostic Code 9411 at any time during the period of the claim.

A disability rating of 50 percent is not warranted, as there is no evidence of 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  The Veteran has stated that her mental symptoms have not affected her memory or her ability to function without problems in her job, and that she generally gets along well with family, friends, and co-workers.  Further, mental status examinations throughout the period of the claim generally showed normal mood, affect, behavior, as well as thought process, insight, and judgement.  Moreover, in July 2010 and February 2016, VA examiners concluded that the Veteran's PTSD symptoms were not productive of reduced reliability and productivity.

A disability rating of 70 percent is not warranted, as there is no evidence of 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships.  The Veteran has denied depression and suicidal or homicidal ideations, as well as work-related performance issues.  Further, she has been involved in a long-distance relationship for 21 years, and has a good relationship with her sisters and friends.  Additionally, mental status examinations throughout the period of the claim generally showed normal mood, behavior, appearance, and psychomotor activity.  The Veteran's mental status examinations also showed coherent, fluent, and appropriate speech; goal-directed and reality oriented thought process; unremarkable thought content with no evidence of paranoia, delusions, suicidal ideations, illusions, or hallucinations; and good impulse control.  Moreover, the July 2010 and February 2016 VA examiners concluded that the Veteran's PTSD symptoms were not productive of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A disability rating of 100 percent is not warranted, as there is no evidence 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 self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  As discussed above, there is no evidence of delusions, hallucinations, grossly inappropriate behavior, or suicidal or homicidal ideations.  Further, the Veteran's mental status examinations indicated that she has been fully oriented to person, place and time, and has have normal recent and remote memory throughout the period of the claim.  Moreover, the July 2010 and February 2016 VA examiners concluded that the Veteran's PTSD symptoms were not productive of total occupational and social impairment.

Based on the foregoing, the Board determines that a disability rating in excess of 30 percent for the Veteran's PTSD has not been warranted at any time during the period of the claim.  The evidence of record does not indicate that the Veteran's PTSD has resulted in reduced reliability and productivity; deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment.

Consideration has been given to assigning a staged rating for the Veteran's PTSD.  However, as explained above, the evidence does not suggest that the level of occupational and social impairment caused by this disability have substantially fluctuated during the period of this appeal.  Thus, a staged rating is not appropriate for this claim.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine, but has found that a preponderance of the evidence weighs against the Veteran's claim.  As such, the doctrine is inapplicable and the claim must be denied.


ORDER

Entitlement to a disability rating in excess of 30 percent for PTSD is denied.



____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs