Citation Nr: 1801454 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 08-36 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder diagnosed as posttraumatic stress disorder (PTSD), prior to September 9, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty from July 1965 to April 1969, and from February to April 1991. This matter is on appeal from a December 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. By that rating action, the RO continued a 50 percent disability rating assigned to the service-connected PTSD. The Veteran appealed this determination to the Board. In February 2011, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A copy of the hearing transcript is of record. In a January 2013 decision, the Board denied entitlement to a rating in excess of 50 percent for PTSD. The Veteran appealed the Board denial to the United States Court of Appeals for Veterans Claims (Court). In February 2014, the Court issued an order that granted a Joint Motion for Remand (Joint Motion) filed by counsel for both parties, vacated the Board's January 2013 decision, and remanded the matter to the Board for action in compliance with the Joint Motion. This matter was then before the Board in May 2014 when it was remanded for additional development. By an October 2014 rating decision, the RO awarded a 100 percent rating for the service-connected PTSD, effective September 9, 2014. Accordingly, the period of time from that date is not before the Board. FINDING OF FACT Throughout the appeal period (prior to September 9, 2014), the Veteran's service-connected PTSD was not manifested by symptoms resulting in deficiencies in most areas, and has not caused total occupational and social impairment. CONCLUSION OF LAW The criteria for an increased rating greater than 50 percent for service-connected PTSD for the period prior to September 9, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Assist and Notify Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Acting Veterans Law Judge at a Board hearing in February 2011. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the May 2014 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his increased rating claim adjudicated herein. II. Merits Analysis The Veteran seeks an increased rating in excess of 50 percent for his PTSD for the period prior to September 9, 2014. After a brief discussion of the laws and regulations governing increased rating claims and those specific to rating psychiatric disabilities, the Board will analyze the merits of the claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The average impairment of earning capacity due to PTSD is determined by the criteria set out in the General Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 50 percent evaluation is warranted where 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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; intermittently illogical obscure, or irrelevant speech; 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 evaluation 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that rating or others of similar severity, frequency and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Other language in Vazquez-Claudio indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. Global Assessment Functioning (GAF) scores of 61-70 indicate some mild symptoms or some difficulty in social, occupational, or school functioning, with the ability to generally function pretty well and have some meaningful personal relationships. DSM-IV (1994). GAF scores of 51-60 indicate moderate symptoms, such as a flat affect, circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, as evidenced by having few friends and having conflicts with peers or co-workers. Id. GAF scores of 41-50 indicate serious symptoms, such as suicidal ideation, severe obsessional rituals, and frequent shoplifting, or serious impairment in social, occupational, or school functioning, as evidenced by having no friends and being unable to keep a job. Id. GAF scores of 31 to 40 reflect some impairment in reality testing or communications (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g. depressed man avoids friends, neglect family, and is unable to work). Id. It is important to note that a GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). 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. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). However, the amended provisions do not apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the Agency of Original Jurisdiction. The instant appeal was initially certified to the Board in September 2010. Therefore, the pre-August 2014 version of the Schedule for Rating Disabilities is for application in the instant appeal. 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, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In the analysis below, the Board will deny the claim because the preponderance of the evidence of record is against an increased disability rating in excess of 50 percent for PTSD for the period prior to September 9, 2014. In the case at hand, July 2007 VA treatment records note the Veteran's complaints that work was "stressful." A GAF score of 60 was assigned based on PTSD. An October 2007 VA treatment record notes that the Veteran was depressed and agitated because he had just been fired from his job. The examiner assigned a GAF score of 50. An October 2007 VA examination report notes that the Veteran reported receiving consistent treatment and medication for his PTSD for the past several years. He had noticed an improvement in his sleep and decreased irritability. The Veteran reported some difficulties in maintaining consistent employment due to decreased concentration and conflicts with his co-workers and employers. He recently lost his job and was currently unemployed. He also reported that he had few friends, but did keep in touch with a fellow combat veteran. He spent time with his wife of 12 years, who he described as supportive. He was relatively isolated from his children. On examination, he appeared anxious and "somewhat irritable." His hygiene and appearance were adequate for the occasion. While he appeared somewhat uncomfortable at the beginning of the evaluation, he eventually became more comfortable as the interview progressed. His speech was normal in rate and content, and his thought process was logical, sequential and goal directed. No delusions were observed, nor was there any evidence of a thought disorder. The Veteran also denied any homicidal ideation, was oriented in all aspects, and demonstrated adequate memory and logic, based on his ability to remember the last three presidents and to interpret certain figures of speech. His insight and judgment appeared to be good. The diagnosis was chronic, moderate PTSD; the examiner assigned a GAF score of 55. The examiner stated that the Veteran's psychiatric symptoms did not render him unemployable. A January 2008 VA treatment note describes the Veteran as alert, oriented and casually groomed; he displayed an angry affect. VA GAF score of 65 was assigned. Treatment records show that by September 2008, the Veteran appeared less guarded and his affect was less angry. He had obtained a new job, which he was enjoying. He reported a good relationship with his wife's son; he enjoyed traveling with his wife to visit his step-son. VA treatment notes from March, September and December of 2009 consistently noted that the Veteran was alert, casually groomed and less guarded. His thought process was organized and without hallucinations or delusions. He was assigned a GAF score of 65 each time. An April 2010 VA PTSD examination report notes that the examiner reviewed the claims file and interviewed the Veteran. The Veteran reported that he remained married, but felt disconnected and withdrawn from his wife, children and grandchildren. He said that he had one close friend who served with him in Vietnam; he spoke to this friend monthly and saw him annually. He also reported that he had worked full time in his job as a clerk for the past two years. He denied missing any work because of his PTSD. Sometimes he took the bus to work, but crowds bothered him. His hobbies included watching TV. He stated that he continued to be treated for PTSD, including attending therapy and taking antidepressants, which provided some relief from his symptoms of depression. He also described symptoms of intrusive recollections of Vietnam on a regular basis, nightmares a few times per month, and sleeping an average of four hours per night. He also found himself easily startled and quick to anger, especially in crowds. He indicated that he was hypervigilant; several times per night he checked that his windows and doors were locked. He denied hospitalizations, drug use, or alcohol abuse. Upon examination, he appeared appropriately dressed and groomed, and was alert and oriented in all spheres, and his affect was normal. His thought process appeared rational and focused and his speech was observed to be normal in all respects. He was cooperative during the examination, and displayed no evidence of impairment in thought processes or communication. He denied any homicidal or suicidal ideation, as well as any obsessive or compulsive tendencies. The assessment was chronic moderate PTSD and the examiner assigned a GAF score of 60. The examiner stated: "According to a thorough review of the medical records and the veteran's report during the evaluation, his symptom presentation appears to be unchanged from his last (2010 VA) examination. The veteran denied any remission of symptoms since his last evaluation but he is reporting symptom severity at the same intensity which he did during his last exam. His medical records further indicate that the veteran's psychological functioning has remained relatively unchanged for the past 3 years." The examiner also noted that the Veteran had been able to maintain employment for the past several years. She opined that while the Veteran "does report some difficulty interacting with other coworkers there is no evidence to suggest that this veteran has experienced decreased productivity at work due to psychological symptoms. It is this author's opinion that he is able to adequately tolerate the stress, schedule requirements, and interpersonal interactions required in any employment setting." VA mental health evaluations, dated from June 2010 to December 2011, note that the Veteran appeared alert, oriented and casually groomed. Thought processes were organized, without hallucinations or delusions. The Veteran continued to work as a clerk. His therapists assigned GAF scores ranging from 55 to 65. A December 2011 VA PTSD examination report notes that the examiner reviewed the claims file in conjunction with the examination. The Veteran reported that he remained employed in the same job as a clerk. Although he had been counseled on two or three occasions for making mistakes at work, he had never been placed on a performance improvement plan and his most recent performance appraisal was satisfactory. He did not use excessive leave from work. The Veteran also reported that he had remained married and that his wife was a good woman. He was too tired after work to do anything socially with her, and they slept in separate bedrooms at her choosing. He also avoided interacting with his children. He did speak to one friend, who he knew from service, every other day. In his free time, he watched television, cared for his dog, and attended church on Sundays. He indicated that he had started drinking in the evenings. He denied any arrests or drug abuse problems. The Veteran stated that he took his antidepressant medication, but was constantly tired and that he "can't stand" people touching him in crowded areas. He also mentioned a number of episodes where he as easily angered and that he did experience some flashbacks from Vietnam. He reported showering only one day a week, but the examiner noted that there was no evidence of neglect of hygiene at the time of examination. Upon mental status examination in December 2011, the Veteran appeared generally alert, and his grooming and hygiene was observed to be adequate. He was generally alert and responsive, although he appeared tense throughout the interview. His speech was normal in rate and tone, and was "relevant and coherent." While he stated that he ruminates on the issue of death, he denied any specific suicidal or homicidal ideation. No hallucinations or delusions were observed, and his thought processes were generally logical and sequential. While he stated that he checks his doors at night, he displayed no evidence of obsessive or compulsive symptomatology. The examiner assigned a GAF score of 60, indicative of moderate impairment. The examiner opined that the Veteran's overall symptoms were unchanged from his last examination in 2010. In this regard, the examiner stated: "The veteran shows no increase or change in memory loss, no increase or exacerbation of depressed mood, no increase in anxiety since last examination and no evidence of panic attacks. Sleep impairment remains virtually unchanged, and there is no significant impairment in judgment, speech, impulse control or thought processes. The veteran reports some neglect of personal hygiene in appearance but this was not apparent or noticeable in today's examination. The veteran does not report suicidal or homicidal ideation and there are no delusions or hallucinations reported. The veteran's Global Assessment of Functioning remains unchanged from his last Compensation and Pension evaluation and remains consistent with recent treatment records. The veteran has been employed full time since his last evaluation and remains employable. He has not required special accommodations, work schedules or responsibilities in order to maintain employment of psychiatric purposes. The veteran has complied with psychiatric treatment . . . The veteran has not experienced any decreased productivity at work due to psychological symptoms and his relationships with coworkers and supervisors has not changed significantly since the last evaluation. The veteran reports no reckless or impulsive behaviors within the last year and half and his socialization continues to remain adequate as described previously." VA treatment records, dated from January 2012 to March 2014, note that the Veteran had continued to be employed as a clerk. He hoped to retire soon and move to a warmer climate. In February 2014, he reported that he rarely consumed alcoholic beverages. He remained easily frustrated but denied threatening behavior. He denied suicidal ideation, hallucinations, or delusions. The GAF scores assigned for this period ranged from 60 to 65. The Board finds that the preponderance of the evidence of record is against an increased rating in excess of 50 percent for the service-connected PTSD for the prescribed period on appeal. During the period prior to September 9, 2014, the Veteran's main psychiatric symptoms were sleep impairment, nightmares, flashbacks, irritability, depression, difficulty concentrating, hypervigilance, and avoidance. He worked for nearly the entire period at issue. Additionally, the Veteran remained married and was able to function on a daily basis with no difficulty. The examiners and medical personnel who treated him during the prescribed period indicated that the Veteran was fully oriented and demonstrated insight and judgment, as well as clear thought and communication. They also reported virtually no change in the severity of his symptoms over the period of the appeal. In addition, at no point during the prescribed period has the severity of the Veteran's psychiatric disability most closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In general, the evidence shows that the Veteran's routine behavior, self-care and conversation were normal. Moreover, there is no evidence that the Veteran's depression associated with his PTSD impaired his performance of routine activities, his ability to function independently, or his ability to control his impulses. The Veteran did not also exhibit spatial disorientation or obsessional rituals that interfered with routine activities. His depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships are all contemplated by the 50-percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Overall, apart from neglect of hygiene (which was alleged but never actually observed, as discussed above), the evidence of record does not show symptoms equivalent in severity to those associated with a 70 percent rating, nor does it show deficiencies in most areas as a result of such symptoms. Both factors must be present in order to satisfy or more nearly approximate the criteria for a 70 percent evaluation. See Vazquez-Claudio, 713 F.3d at 118; 38 C.F.R. § 4.130, Diagnostic Code 9411. The record contains GAF scores generally ranging from 55 to 65 during the appeal period. A GAF score of 51-60 involves moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers). A GAF score of 61-70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, with the ability to generally function pretty well and have some meaningful personal relationships. (On one occasion, in October 2007, a GAF score of 50 was assigned due to the Veteran's depression and agitation over being fired from his job. Notably, on another occasion that month, the examiner assigned a GAF score of 55. This one time assignment of a GAF score of 50 appears to be situational.) The Board is cognizant that a GAF score is not determinative by itself. Accordingly, the Board finds that the preponderance of the evidence of record is against an increased disability rating in excess of 50 percent for the Veteran's service-connected psychiatric disability during the period prior to September 9, 2014. As already noted, the fact that the Veteran has social impairment and avoidance, nightmares, and other PTSD symptoms that affect occupational functioning is contemplated by the criteria for a 50 percent evaluation or lower, and does not in itself establish that a higher rating is warranted. The normal mental status examination findings with regard to speech, judgment, insight and thinking, tend to weigh against a rating of 70 percent or higher. The preponderance of the evidence is against the claim for an increased rating, and the benefit of the doubt rule is not for application. There is not an approximate balance of evidence. See Gilbert, supra. In addition, the record reflects that for the period prior to September 9, 2014, the Veteran remained employed and he has not contended, nor does the evidence show that his PTSD rendered him unemployable during the prescribed period. Thus, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record for the period prior to September 9, 2014. Rice v. Shinseki, 22 Vet. App. (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record regarding this claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An increased rating in excess of 50 percent for an acquired psychiatric disorder diagnosed as PTSD, prior to September 9, 2014, is denied. ____________________________________________ Carole Kammel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs