Citation Nr: 1801522 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-35 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 30 percent for a psychiatric disorder, variously diagnosed, and to include entitlement to a total disability rating for compensation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from September 2006 to May 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for a psychiatric disorder and assigned it a 30 percent rating effective from May 2010. The Veteran withdrew a Board hearing request concerning the matter on appeal in July 2015. FINDING OF FACT The Veteran's service-connected psychiatric disorder has not produced occupational and social impairment with reduced reliability and productivity during any part of the rating period since May 2010. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent rating for a psychiatric disorder, variously diagnosed, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9435 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The effective date of the grant of the current claim is in May 2010, immediate following the Veteran's service discharge. She appeals for a higher rating for her service-connected psychiatric disorder, which is rated as 30 percent disabling pursuant to 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders. Under that formula, a 30 percent rating is warranted where there is 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 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Higher ratings under this Diagnostic Code require more severe symptomatology. Global Assessment of Functioning (GAF) scores are 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) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging from 51 to 60 reflect more 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). VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's increased rating claim was originally certified to the Board in May 2015, after August 4, 2014, DSM-5 is applicable to this case. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112(Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (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. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, 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 rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. On VA psychiatric examination in April 2010, the Veteran was not working. She was still in the Army and her out date was in May 2010. She had 2 children, one which was 2 years old and the other which was 9 months old. She took care of them for fun, and lived with her sister. She was on medication. She looked her age and dressed casually. Her tone of voice and speech were normal. She made good eye contact, denied suicidal and homicidal ideation, denied current hallucinations, and did not appear to be responding to stimuli. She had no impairment of thought processes or social functioning, behaved appropriately, was able to maintain personal hygiene, was oriented, and had normal short and long term memory and 5/6 immediate recall. She had no interfering obsessive or ritualistic behaviors. She denied panic attacks and stated that she felt fine. She stated that depression would come, last several days, causing low energy, and then go. She denied little sleep, racing thoughts, and increased energy, but would have anger issues that would last for hours. Her GAF was 55. The examiner indicated that her mental health issues lead to reduced reliability and productivity. On VA psychiatric examination in July 2011, the Veteran reported that she was in her second year of college, full time, studying criminal justice, and that an associate's degree was planned. School was going well and she had good grades. She had CTC and was in classrooms. She was not married or dating and had 2 children, ages 3 and 2. Her last relationship had been months ago, for 10 weeks. It ended when she found out he was married. Her relationship with her parents, who were getting divorced, was alright. Her mother was living with her and had been for 18 months. Her sister was living with her as well. She had generally positive relationships with her mother, sister, and ex-boyfriend. She generally had fun with her kids, but was easily agitated around them. She would go shopping with her mother and to the zoo or the waterpark. She went to the movies and was very active. On mental status examination, her appearance was clean and psychomotor activity and speech were unremarkable. Her attitude was cooperative and irritable. Her affect was normal, and her mood was dysphoric. Attention was intact, as was orientation. Thought processes and content were unremarkable, with no delusions. Judgment was intact and intelligence was average. She had good sleep and no hallucinations or inappropriate behavior. She did not have obsessive/ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. Her impulse control was fair. She had fought with her sister and felt aggressive at times during confrontation. Her memory was normal. On the Beck Anxiety Inventory, she was mild for anxiety symptoms. She felt like she could not trust people and had markedly limited social relationships. The examiner indicated that she did not have reduced reliability due to PTSD symptoms. She did have occasional decrease in work efficiency and there were intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but she had generally satisfactory functioning. On VA psychiatric examination in September 2015, the Veteran was living with her children and stated that she loved them and had good relationships with them. She was engaged to a man she met in 2012 and described the relationship as okay and a struggle. She maintained regular contact with her relatives but lacked trust in others. Since her 2011 VA examination, she had worked and gone to school. She quit corrections work because it was mentally draining, she could not do it, and she felt trapped at work. She quit after working at 2 different facilities for about 14 months while taking classes. She was now taking classes online. They were self-paced and she was able to manage them and was doing okay. She was in outpatient mental health treatment. Her symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. She had good eye contact and clear speech, her mood was neutral to irritable, and her affect was congruent. Attention and concentration appeared to be within normal limits. There was no unusual or bizarre behavior, and thought processes seemed coherent and logical. Judgment appeared intact and there were no delusions or hallucinations elicited. She had suicidal ideation, but not intent or plan, and denied homicidal ideation, intent, and plan. She also had inability to relax, avoided crowds, was irritable with low frustration tolerance, and had verbal aggression and vindictiveness. The examiner indicated that 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 best summarizes the Veteran's level of occupational and social impairment with regards to all mental diagnoses. On VA psychiatric examination in October 2017, the Veteran indicated that she was living with her boyfriend of 6 months, and 2 children, ages 3 and 8. She said things are good at home. She had graduated from college with a bachelor of arts degree in May 2016. She had been charged with shoplifting in June 2017 but attributed it to absentmindedness and received deferred adjudication. She was limiting her drinking to social events 1-2 times per month. Her symptoms were depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and neglect of personal appearance and hygiene. Her mood was euthymic and affect was congruent. She was logical, goal directed, with no evidence of disturbance in formal thought processes, although behavior seemed somewhat pressured. However, her speech was clear, she was engaged and cooperative, and she denied homicidal/suicidal ideation, plan, or intent. She had no other symptoms. The examiner indicated that 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 best summarizes the Veteran's level of occupational and social impairment with regards to all mental diagnoses. Treatment records from during the rating period are also of record and are very harmonious with the VA examination reports. For instance, a November 2014 private clinical interview with mental status examination shows that the Veteran was well groomed and casually dressed, arrived on time, and was mildly depressed. Other symptoms were denied, like in other reports reported above. The situation was similar at the time of a service evaluation in January 2017. And in November 2014, Social Security Administration found her not disabled for their purposes. Based on the record, the Board concludes that a rating in excess of 30 percent is not warranted for the Veteran's service-connected PTSD for any part of the rating period, as the preponderance of the evidence shows that its symptoms do not cause occupational and social impairment with reduced reliability and productivity or even more severe symptoms. In-depth VA examinations on 4 separate occasions, spread approximately evenly from 2010 to 2017, show that she has repeatedly been evaluated by examiner as having no more than 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 normal. The Board has considered assigning a 50 percent rating for the Veteran's service-connected psychiatric disorder for 6 months following her service discharge pursuant to 38 C.F.R. § 4.129. However, the Board finds that those provisions for doing so are not met. They indicate that when a mental disorder develops in service as a result of a highly stressful event and is severe enough to bring about release from active duty, a 50 percent rating is assigned and an examination is scheduled within 6 months following discharge to determine whether a change in the evaluation is warranted. The April 2010 VA examination report indicates that the Veteran had been in treatment for bipolar disorder since June 2008, with medication for it since that time. The VA psychiatric examination report from April 2010 further indicates that she had felt depressed for the past 2 years, and that with the birth of her child 9 months ago, her depression became worse. Accordingly, and in consideration of all of the evidence, this being considered the most probative as it was made contemporaneous to service, and with a May 2012 service treatment record showing diagnostic uncertainty due to the Veteran's failure to help in that regard, the Board finds that the Veteran's mental disorder did not develop as a result of a highly stressful event. There are diagnoses of PTSD but the preponderance of the evidence shows that it was not severe enough to bring about the Veteran's release from active service. Last, the Veteran raised the matter of entitlement to a TDIU in August 2017, due to her service-connected psychiatric disorder. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board will consider the issue of entitlement to TDIU as part of the Veteran's claim for an increased rating for her service-connected psychiatric disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the preponderance of the evidence indicates that her psychiatric disability does not preclude her from obtaining and maintaining all forms of substantially gainful employment consistent with her 3 years of college education in criminal justice and her past work experience, which includes pre- and in-service occupations, about 14 months of full time employment in criminal corrections, from which she quit, and as a make-up artist, a part time position from which she resigned in July 2016. The Veteran has been loving and raising her kids and living with relatives, was engaged to a man and had an okay relationship with him in 2015, and was living with her boyfriend in October 2017, and the preponderance of the evidence including her VA examination reports shows that her psychiatric disability causes no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Accordingly, a TDIU due to her service-connected psychiatric disability is not warranted. 38 C.F.R. §§ 3.341, 4.16. As the preponderance of the evidence is against a higher rating than 30 percent, even when the Veteran's statements in support of claim are considered, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). The Board thanks the Veteran for her years of honorable service. ORDER A rating in excess of 30 percent for psychiatric disorder, variously diagnosed, and to include entitlement to TDIU, is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs