Citation Nr: 1801361 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-02 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 10 percent prior to April 10, 2014, and in excess of 30 percent since April 10, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD N. Shah, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. The Veteran served in Vietnam and was awarded the Bronze Star Medal with "V" Device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a September 2009 rating decision, the RO granted service connection for PTSD and assigned an initial disability rating of 10 percent, effective the date of the claim, April 15, 2009. In a June 2014 rating decision, the RO granted entitlement to a rating of 30 percent for PTSD, effective April 10, 2014. In September 2017, the Veteran testified at a travel board hearing before the undersigned. A transcript of the hearing is of record. FINDING OF FACT For the entirety of the appeal, the Veteran's PTSD has been manifested by symptoms of such severity and/or frequency as to produce occupational and social impairment with reduced reliability and productivity; the PTSD is not manifested by symptoms of such severity and/or frequency as to produce occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for a 50 percent rating for PTSD have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to the VA that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VA's duty to notify was satisfied by a letter dated in May 2009. The VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. 38 U.S.C. § 5103. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records, including several mental health treatment records, are in the claims file. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. There is no indication that there exists any additional obtainable evidence that has a bearing on this case that has not been obtained. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). II. Background The relevant medical evidence of record consists of private medical records, the Veteran's ongoing treatment with VA treatment providers, as well as reports of VA psychological examinations conducted in August 2009 and April 2014. The August 2009 VA examination reflects that the Veteran reported being married with a good relationship with his wife and occasional social relationships. The Veteran also reported that he had no history of suicide attempts or history of violence or assaultiveness. The Veteran reported impaired sleep of about four hours per night, resulting in exhaustion that interferes with daytime activities. On examination, the examiner found that due to the Veteran's combat experience in Vietnam, the Veteran currently experiences intense fear, feelings of helplessness, and feelings of horror. The examiner found that the Veteran has persistent re-experiencing of traumatic events by recurrent and intrusive distressing recollections of the events, including images, thoughts, or perceptions and recurrent distressing dreams of the event. The examiner found that the Veteran persistently avoids stimuli associated with the trauma and numbing of general responsiveness with efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; and a feeling of detachment or estrangement from others. The examiner also found that the Veteran experiences persistent symptoms of increased arousal with difficulty falling or staying asleep; irritability or outbursts of anger; hypervigilance; and an exaggerated startle response. The Veteran's Global Assessment of Functioning (GAF) score was 61. The examiner concluded that the Veteran has frequent daily, chronic, mild PTSD symptoms and that the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner stated that the Veteran's PTSD symptoms, to include hypervigilance, sleep disturbance, avoidance behaviors, and irritability, are mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. After this examination, the RO granted a 10 percent rating from the date of the claim, April 15, 2009. At the April 2014 VA examination, the Veteran reported that his PTSD symptoms had worsened. The examiner noted that there was no objective evidence corroborating this assertion. The examiner also noted that the was unable to review the Veteran's c-file and could only access limited records on the Veterans Benefits Management System (VBMS). Upon examination, the examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported having very few social relationships - his wife, regular visits from his children and grandchildren, and one friend who visited his barn about once a month. The Veteran reported spending a lot of time in his barn, working on the yard, and occasionally hunting deer. The Veteran reported that his wife attempts to get him to go out, including going shopping or on vacation, but the Veteran rarely goes because he does not like to be around a lot of people. The Veteran reportedly went on vacation to the beach the year before, but had chosen to go in October because it would be less crowded. The Veteran noted problems with sleep maintenance two out of three nights, nightmares about Vietnam a couple times a week, and an average of about 5-6 hours of sleep per night. The examiner noted that the Veteran had blunted affect and mild hypervigilance at the time of the examination. The Veteran reported feeling nervous because he was around a lot of people at the VA and was worried about becoming irritable with someone while at the VA. After this examination, the RO granted a 30 percent rating from the date of the examination, April 10, 2014. Throughout the period on appeal, the Veteran received treatment for his PTSD through VA. VA treatment records indicate that the Veteran's PTSD has been fairly consistent throughout the period on appeal. The Veteran consistently has nightmares and trouble sleeping, isolates himself in order to prevent sudden outbursts of anger, isolates himself to avoid crowded areas, avoids anything that may remind him about his experiences in Vietnam, feels survivor's guilt, has signs of depression, and is hypervigilant. In his treatment records, the Veteran repeatedly stated that when he is in public, he relies on his wife as a buffer should he become irritated or angry. In a March 2015 treatment record note, the Veteran stated that he took two days to "recover" from anger and irritation after a car pulled in front of him on the highway. The Veteran also stated that although he had been going to the same church for almost 30 years, he continues to be cautious and hypervigilant. The Veteran noted that he only discussed his experiences with one friend, who died in 2015. The Veteran repeatedly stated that he does not discuss his experiences in Vietnam with anyone else, including those providing him treatment for his PTSD, because he does not want to "burden" the individual listening about his experiences. Throughout the period on appeal, the Veteran has not showed any suicidal ideation. The treatment records indicate that the Veteran's service providers have offered medication for the Veteran's PTSD, which the Veteran has refused. The Veteran's testimony at the September 2017 hearing was consistent with the treatment records. The Veteran reported that he avoids crowded places because he feels anxiety in crowds and is often aggravated or mad when in a crowd. The Veteran stated that he retired in January 2009 before he "did something that [he] shouldn't do" because of his anger. The Veteran reported the only activities that he currently participates in are church and visits with his grandchildren. The Veteran noted that he has some memory issues, forgetting things like where he placed objects and the name of his pastor of 8 or 9 years. The Veteran stated that he is not currently taking medication for PTSD. III. Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Service connection for PTSD was granted in a September 2009 rating decision. A 10 percent rating was assigned from April 15, 2009. In a June 2014 rating decision, the service-connected PTSD was granted a 30 percent rating from April 10, 2014. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In the September 2009 and June 2014 rating decisions, the Veteran's PTSD was evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, to include PTSD, a 10 percent rating is warranted when a mental disability results in "[o]ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication." 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 30 percent rating is warranted when there is: [o]ccupational 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). Id. A 50 percent rating is warranted when there is: [o]ccupational 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is: [o]ccupational 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); inability to establish and maintain effective relationships. Id. The symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that "any suggestion that the Board was required . . . to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation"). However, "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 v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). "The regulation's plain language highlights its symptom-driven nature" and "symptomatology should be . . . the primary focus when deciding entitlement to a given disability rating." Id. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria, rather than solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a) (2017). Mental Health diagnoses made pursuant to the DSM-IV, which was updated to the DSM-V in August 2014, will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 61 to 70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or schooling functioning (e.g., occasional truancy, or theft within household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF score of 41 to 50 indicates 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). See Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, p. 46 (1994). 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 v. Brown, 8 Vet. App. 240. 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 rating assigned. See 38 C.F.R. § 4.126 (a) (2017). 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 percentage 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 (2017). Upon review of the evidence of record, the Board finds that an initial rating of 50 percent, but no higher, is warranted for the Veteran's service-connected PTSD for the entire period on appeal. The evidence from the VA examinations and the Veteran's treatment records reflect that his mental disability more nearly approximates a 50 percent rating for occupational and social impairment with reduced reliability and productivity due to flattened affect, disturbances of motivation and mood, nightmares, chronic sleep impairment, irritability, isolation, hypervigilance, and difficulty in establishing and maintaining effective relationships. See Mauerhan v. Principi, 16 Vet. App. 436. In so concluding, the Board finds particularly persuasive the records of the Veteran's ongoing VA psychiatric treatment, which reflect that the Veteran experiences symptoms of decreased motivation and mood, hypervigilance, anxiety, and depression, as well as nightmares, sleep impairment, flattened affect, and problems with mood management. These findings have been echoed by the Veteran's VA examiners, who noted in the August 2009 and April 2014 examinations that the Veteran experienced self-isolation, nightmares, hypervigilance, sleep impairment two or three times a week, as well as constricted affect and depressed mood. The Veteran has established and maintained very few friendships and has good relationships with his family; although, at times, he indicated his family has increased his irritation. The Board notes that one of the symptoms listed for a 50 percent rating is "difficulty in establishing and maintaining effective [] relationships," and that the corresponding symptom for a 70 percent rating is "inability to establish and maintain effective relationships." The record demonstrates that the Veteran maintains relationships with his family, church, and a few friends. The Veteran has reported close relationships with his wife and grandchildren. While the Veteran may at times have difficulties establishing and maintaining effective relationships, he has not demonstrated an inability to do so. In addition, the Veteran reported doing yard work, going to church, and treatment records indicate he has been consistently receiving care from the VA since 2014, which demonstrates an ability to function independently. Finally, his treatment providers have consistently reported the Veteran presents as alert and oriented, with normal speech and logical and goal oriented thought process. The evidence does not show symptoms associated with a 70 percent rating: suicidal ideation, obsessional rituals that interfere with routine activities, illogical or obscure speech, near-continuous panic or depression, impaired impulse control, spatial disorientation, and an inability to establish and maintain effective relationships. The absence of these symptoms is not outcome determinative. However, the Veteran also failed to show other symptoms of similar severity, frequency, and duration. Therefore, the Veteran does not meet the level of severity of the symptomatology required for a 70 percent rating, i.e. occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. See Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). While the evidence does suggest that the Veteran has potentially severe social impairment, he has not shown symptomatology of deficiencies in most areas, particularly, work, judgment, thinking, or mood such that his symptoms equate to the severity, frequency, and duration of near continuous panic or depression, impaired impulse control, obsessional rituals or spatial disorientation. Therefore, the evidence of record simply does not support symptoms of such frequency, severity, or duration to warrant a 70 percent disability rating for PTSD for the appeal period. 38 C.F.R. 4.130, Diagnostic Code 9411. The Board also notes that the sole GAF score of record, from the April 2009 VA medical examination, is 61, which indicates that the Veteran's PTSD is mild and is one point away from being considered moderate. Although not dispositive of the evaluation issue, considered in light of the actual symptoms of the Veteran's disability, the GAF scores support a finding that the Veteran's PTSD is moderately disabling. This finding is also consistent with a 50 percent disability rating for PTSD. In addition, the Board notes that in accordance with Fenderson, supra, staged ratings have been considered, but because the Veteran's disability was fairly consistent throughout the period on appeal, a staged rating is not warranted. For the forgoing reasons, the Board finds that thoughout the period on appeal, the Veteran's service-connected PTSD warrants an initial disability rating of 50 percent, but no higher. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. ORDER Entitlement to a disability rating for PTSD of 50 percent, but no higher, is granted for the entire period on appeal. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs