Citation Nr: 1801134 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-05 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), with cannabis abuse and depressive disorder, in excess of 50 percent disabling from prior to April 30, 2014, and 70 percent disabling thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1966 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied the Veteran a rating greater than 50 percent for PTSD. In a February 2015 rating decision the RO increased the Veteran's disability rating to 70 percent disabling from April 30, 2014. In December 2017, the Veteran was scheduled for a hearing before a Veterans Law Judge for which he failed to report. As the Veteran has not provided good cause for his failure to report, and has not since requested that the hearing be rescheduled, his hearing request is, therefore, deemed withdrawn. See 38 C.F.R. §§ 20.702 (d); 20.704(d) (2017). FINDING OF FACT For the entirety of the appeal period, the Veteran's PTSD manifested to a degree of occupational and social impairment with deficiencies in most areas; but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Giving all reasonable doubt to the Veteran, for the period prior to April 30, 2014, the criteria for a 70 percent disability rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. At no time during the appeal period have the criteria for a disability rating greater than 70 percent for PTSD been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA has complied with the duties to notify and assist in this case. Notice was provided to the Veteran and no assertions of error have been raised with regard to the notice provided. With regard to the duty to assist, in the December 2017 Informal Hearing Presentation, the Veteran's representative asserts that because the last examination took place in September 2014, and thus, a new examination is required as his condition has worsened in the ensuing 3 years. The representative does not point to any evidence in the record to support this assertion, and to the contrary, the Board finds that review of the record indicates that the Veteran's symptomatology did not increase in severity during this period, and in fact, appears to have improved. The mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition. Palczewski v. Nicholson, 21 Vet.App. 174, 182 (2007). The Veteran's PTSD was evaluated as 70 percent disabling during this period, with symptoms that satisfied or equated to this level of disability. For the period after the September 2014 examination, in October 2014, the Veteran reported that he slept well and only had nightmares from time to time. He denied depression and suicidal ideations, and reported that he goes fishing 2 to 3 times a week, and that he enjoys talking, and enjoys life. Similarly in June 2015 and in October 2016, the Veteran reported that he slept well, enjoyed working around the house, and walking his dog. He again denied depression, suicidal ideation, and noted that he enjoyed life. Moreover, most recently in August 2017, a Pharmacy Clinical Note indicated that the Veteran's psychiatric condition was stable, and that he is well-controlled on his current therapy. Accordingly, absent a showing of worsening in the record, despite the assertions made by the representative, the Board does not find that a new examination due to worsening of the condition is warranted here. Increased Ratings for PTSD Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The Veteran's PTSD disability ratings have been "staged" from 30 percent disabling, with subsequent increases to 50 percent and 70 percent disabling, for the period on appeal under Diagnostic Code 9411. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Under the General Rating Formula, a 50 percent rating is assigned when a veteran's PTSD causes 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-term 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 (2017). A 70 percent evaluation is warranted 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The maximum schedular rating of 100 percent is warranted when 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2017). The rating agency shall assign an evaluation based on all 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) (2017). Use of the term "such symptoms as" in § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and because the plain language of the regulation makes clear that "the veteran's impairment must be 'due to' those symptoms," a veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-17. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). With regard to GAF scores, it should be noted that prior to August 4, 2014, VA's Rating Schedule that addresses service-connected psychiatric disabilities 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 this case, diagnoses many times included an Axis V diagnosis, or a GAF score. The DSM was recently updated with a 5th Edition ("DSM-V"), and VA issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 70 Fed. Reg. 45093 (Aug. 4, 2014). This updated medical text recommends that GAF scores be dropped due to their "conceptual lack of clarity." See DSM-V, at 16. However, since the Veteran's PTSD claim was originally certified to the Board prior to the adoption of the DSM-V, the DSM-IV criteria will be utilized 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); however, the veteran is found to generally be 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). GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2017). Factual Background The Veteran contends that his service-connected PTSD warrants a higher disability rating. On September 10, 2010, the Veteran received a VA examination to determine the severity of his PTSD. The Veteran reported symptoms of sleep impairment, panic attacks, chronic dysphoria, tearfulness, and suicidal ideations, but denied hallucinations or delusions. The Veteran further reported that he keeps to himself, and that he has obsessive rituals including checking locks 5-6 times per night and compulsively counting items. The examiner diagnosed the Veteran with PTSD and Histrionic Personality Disorder noting that the Veteran's personality disorder heightens the Veteran's symptoms, but that it is not causative of his PTSD, anxiety, or depressive symptoms. The examiner also determined that the Veteran exhibited some borderline hypo-manic symptoms, but that he was primarily depressed. The examiner found that the Veteran had a GAF score of 49, and that the Veteran did not have total occupational and social impairment due to his PTSD symptoms, but that his symptoms did result in deficiencies in judgment, thinking, family relations, work, mood, and concentration. In a May 2011 Psychiatry visit, the Veteran reported being easily startled and being awakened from nightmares about 4-5 times per week. He further reported sleep impairment, anxiety, being easily irritated, crying spells, and that he smokes marijuana daily to help him to relax. The examiner diagnosed the Veteran with PTSD with marijuana abuse, and determined that the Veteran had a GAF score of 60. Subsequently, in September 2011, the Veteran received another VA examination to determine the severity of his PTSD symptoms. The Veteran reported symptoms of sadness, anxiety, increased arousal, and avoidance. The Veteran further reported sleep impairment and nightmares, but denied any suicide attempts. The Veteran described the relationships with his wife, siblings, and children as good. Occupationally, the Veteran reported having been employed as a welder for 30 years, and that he has not worked in 21 years due to the effects of his mental condition. The examiner noted that the Veteran exhibited mood swings, anxiety, impaired attention and/or focus, problems concentrating, and that marijuana contributes to the Veteran's depressed mood. The examiner further noted that panic attacks are absent, but that the Veteran has mild memory impairment, and passive thoughts of death. The examiner determined that the Veteran had a GAF score of 51, and that the Veteran's symptoms are best described as causing occupational and social impairment with occasional decrease in work efficiency. In April 2012, the Veteran was admitted to a Behavioral Health Treatment Program for PTSD. A risk assessment determined that the Veteran was a danger to himself and/or others due to having poor impulse control and suicidal ideations. The examiner noted problems of tension, difficulty relaxing, unwanted memories, anger/irritability, relationship problems, and poor communication skills. The examiner also determined that the Veteran had a GAF score of 49. In September 2014, the Veteran received a Disability Benefits Questionnaire (DBQ), for purposes of a PTSD review. The examiner noted that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, and panic attacks. The examiner further noted symptoms of mild memory loss, disturbances of motivation and mood, obsessional rituals, and delusions or hallucinations. The examiner determined that the Veteran's PTSD condition has progressed and that the Veteran's depression exacerbates his PTSD symptoms. The examiner further found that the Veteran had occupational and social impairment with deficiencies in most areas. Legal Analysis The Veteran's PTSD has been rated in stages with a 50 percent rating from September 10, 2010, and a 70 percent rating from April 30, 2014. The Board finds that prior to April 30, 2014, a higher rating of 70 percent is warranted; however, that the criteria for a total rating for PTSD have not been met at any time during the appeal period. The Board notes that in his September 10, 2010 examination, the Veteran reported suicidal ideations, chronic dysphoria, panic attacks, and obsessive rituals. The examiner determined that the Veteran had a GAF score of 49, indicative of serious symptoms. In contrast, a May 2011 Psychiatry Note, noted that the Veteran had a GAF score of 60, indicative of moderate symptoms. Similarly, in his September 2011 VA examination, the examiner determined that the Veteran had a GAF score of 51, also indicative of moderate symptoms. Finally, after being admitted to a treatment program for PTSD in April 2012, the examiner determined that the Veteran had a GAF score of 49, again, denoting serious symptoms. Notably, the evidence shows that the Veteran was discharged from the program, and was subsequently referred to mental health at the VA Corpus Christi, OPC. The Veteran's September 2014 DBQ, the examiner determined that the Veteran's PTSD condition progressed and that the Veteran had occupational and social impairment with deficiencies in most areas. In October 2014, the Veteran reported that he sleeps well and has nightmares from time to time. He denied depression and suicidal ideations, and reported that he goes fishing 2 to 3 times a week, and that he enjoys talking, and enjoys life. Similarly in June 2015 and in October 2016, the Veteran reported that he sleeps well, enjoys working around the house, and walking his dog. He again denied depression, suicidal ideation, and that he enjoys life. Moreover, most recently in August 2017, a Pharmacy Clinical Note indicated that the Veteran's psychiatric condition was stable, and that he is well-controlled on his current therapy. Therefore, considering the evidence above, the Board finds that, giving the Veteran the benefit of the doubt given the noted fluctuation in the severity of his symptomatology during the period prior to April 30, 2014, that his symptoms for this entire period more nearly approximate the criteria for a 70 percent rating. However, in considering a higher rating, the Board finds that at no time during the appeal period was the Veteran's symptomatology representative of total social impairment. Socially, he maintained relationships with his family, engaged in fishing, and walked the dog. While he demonstrated some of the criteria for a 100 percent rating during his 2012 admission, overall his symptoms even during this period more nearly approximate the level of disability in the 70 percent rating rather than the total rating. Moreover, his symptomatology improved upon release. The Board also recognizes his occasional reports of suicidal ideation and thoughts, however, again, these symptoms are compensated and considered as part of the 70 percent rating. As the evidence preponderates against the claim, the benefit of the doubt doctrine is inapplicable, and an increased rating must be denied. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 53-56. Accordingly, the Board fins that an increase to 70 percent disabling, but no higher, for the entire appeal period, before and after April 30, 2014, is warranted. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. §§ 3.102; 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56. ORDER Entitlement to a 70 percent disability rating, but no higher, for PTSD, with cannabis abuse and depressive disorder, for the period prior to April 30, 2014, is granted. Entitlement to an increased evaluation for PTSD, with cannabis abuse and depressive disorder, in excess of 70 percent disabling from April 30, 2014 is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs