Citation Nr: 1801599	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO. 14-16 732	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder.

2. Entitlement to an initial disability rating in excess of 10 percent for a service-connected right ankle disability. 

3. Entitlement to an initial disability rating in excess of 10 percent for a service-connected left knee disability.

4. Entitlement to an initial disability rating in excess of 10 percent for service-connected intervertebral disc syndrome (IVDS) of the lumbar spine.

5. Entitlement to an initial disability rating in excess of 10 percent for service-connected sciatica of the left lower extremity.

6. Entitlement to an initial disability rating in excess of 10 percent for service- connected sciatica of the right lower extremity.

REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and her caregiver


ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 2000 to August 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 

In August 2015, the Veteran and her caregiver testified at a hearing before the undersigned Veterans Law Judge seated at the VA Central Office. During the hearing, the undersigned engaged in a colloquy with the Veteran and her caregiver toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the Board hearing is included in the electronic claims file.

The issues of increased ratings for right ankle disability, left knee disability, IVDS, and sciatica of the bilateral lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

For the entire period on appeal, the Veteran's PTSD resulted in disability nearly approximating occupational and social impairment with deficiencies in most areas, such as school, work, family relations, judgment, and mood due to such symptoms as suicidal ideation, obsessional rituals, impaired impulse control, spatial disorientation, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships.


CONCLUSION OF LAW

Resolving all doubt in favor of the Veteran, the criteria for an initial disability evaluation of 70 percent for PTSD, but no higher, have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, DC 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 

As the appeal arises from the Veteran's disagreement with the initial disability rating assigned following the grant of service connection for PTSD, no additional notice is required. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. 38 C.F.R. § 3.159 (b)(3)(i); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also VAOPGCPREC 8-2003 (separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims).

VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C. 
§ 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded an in-person examination in June 2011. The VA examiners provided clear explanations in support of the opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examinations and medical opinions are adequate to decide the Veteran's claim.

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Increased Rating for Service-Connected PTSD 

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her 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. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

Psychiatric disabilities, such as PTSD, are evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent disability rating requires 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; or memory loss for names of close relatives, own occupation, or own name. Id. 

Under the disability rating criteria, a 70 percent evaluation requires 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); or inability to establish and maintain effective relationships. Id.

A 50 percent disability rating requires 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; or difficulty in establishing effective work and social relationships. Id.

A Global Assessment of Functioning (GAF) score is a quantifiable assessment of overall functioning used by mental health clinicians that reflects an individual's "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (both citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32 (1994)). 

Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). 

The use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See DSM-5, p. 16 (2013). In this case, however, DSM-IV was in use during the majority of the applicable appeal period when relevant medical entries of record were made. Therefore, the GAF scores assigned remain relevant for consideration. 

GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. See DSM-IV, p. 46 (1994). 

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). Id. at p. 47. 

Scores ranging from 41 to 50 reflect 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). Id. 
Scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (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, neglects family, and is unable to work). Id. 

When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. When determining the appropriate rating to be assigned for a service-connected mental health condition, the focus is on how the frequency, severity, and duration of the symptoms affect a veteran's occupational and social impairment, rather than on an absence of particular symptoms listed in the schedular criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013).

Upon VA examination in August 2011, the Veteran reported she experienced feeling uneasy and unsafe, screaming in her sleep and being startled and crying if touched in her sleep. The Veteran also reported that she was formerly "very social' but now stays at home. She indicated that she has fewer friends than before, and has been passive and hesitant about dating. The Veteran also reported that she never sleeps through the night, checks her windows and doors multiple times a night. The VA examiner noted the Veteran experiences recurrent recollections of her traumatic event, causing her to become "very distant." The examiner also noted the Veteran demonstrates avoidance of stimuli associated with the trauma by carefully arranging her office, checking her doors, and not letting others come up behind her. The examiner indicated the Veteran demonstrates a markedly diminished interest or participation in significant activities, feelings of detachment or estrangement, and symptoms of increased arousal. The examiner also indicated the Veteran has difficulty concentrating and is hypervigilant. The Veteran's GAF score was 52. 

The Veteran's VA treatment records note she has regularly endorsed suicidal ideations. In September 2015, the Veteran stated she experienced suicidal ideations several times per year. The Veteran speech has been described as often times tangential, suggesting the assignment of a 70 percent rating because it is a symptom akin to intermittently illogical or irrelevant speech. Similarly, the Veteran also reported preferring to be alone and not having many friends. The Veteran's difficulty establishing and maintaining effective relationships, particularly with men as a result of her in-service trauma, also suggests the assignment of a 70 percent rating. Further, the Veteran's treatment records reflect periodic impaired impulse control, frequently resulting in unprovoked irritability and angry outbursts. The Veteran has generally described her mood as "down," depressed," "anxious," "angry," and "irritable," and periodically as "good," "better," and "fair." Examiners have regularly noted Veteran's moods as dysphoric.

After resolving reasonable doubt in the Veteran's favor, the Board finds her disability picture due to PTSD most nearly approximated the criteria for a 70 percent rating. Although the Veteran does not demonstrate every symptom associated with the 70 percent rating criteria, the symptoms noted in the rating schedule 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 disability rating. Mauerhan, 16 Vet. App. at 442 (2002).
The Board has also considered the criteria for a 100 percent disability rating, but finds that the evidence does not establish that the Veteran's PTSD manifested in total social or occupational impairment. The Veteran has never been described as having symptoms suggesting a gross impairment in thought processes or communication. The Veteran's mood has been noted as depressed and anxious, but she has not been assessed as being incapable or seriously impaired in communication skills and abilities. The Veteran's treatment records do not reflect that the Veteran experiences delusions or hallucinations. The Veteran has not reported that flashbacks and intrusive thoughts of service are constant, but instead are periodic. The Veteran demonstrates periodic suicidal ideations. However, there is no evidence that the Veteran has had plans of harm to self or others. The Veteran has consistently been described as well-groomed. Additionally, the Veteran has never reported that she is incapable of self-care. The Veteran's treatment records reflect that she only experiences mild memory loss and has never experienced disorientation to time or place. Further, the Veteran is able to maintain a job. For these reasons, the Board finds that the preponderance of the evidence is against a rating of 100 percent. 


ORDER

A disability rating of 70 percent for PTSD is granted


REMAND

In her August 2015 hearing testimony, the Veteran contended her service-connected disorders had worsened since her last VA examinations. The Veteran is competent to allege such worsening. Additionally, the Veteran's VA treatment records identified symptoms of her service-connected conditions not currently contemplated by the ratings, to include bladder incontinence. Therefore, a new VA examination is necessary to assist in determining the current nature and severity of the Veteran's right ankle disorder, left knee disorder, lumbar spine disorder, and bilateral lower extremity sciatica.

Accordingly, the case is REMANDED for the following actions:

1. Request that the Veteran identify and secure any relevant private medical records relating to the right ankle, left knee, lumbar spine and bilateral lower extremity that are not in the claims file. Attempt to obtain any records identified by the Veteran and associate these records with the claims file. 

THE RO SHOULD ALSO ASCERTAIN THE VETERAN'S EMPLOYMENT STATUS. See Rice v. Shinseki, 22 Vet.App. 447 (2009)((holding that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating)).

Obtain any outstanding VA medical records and associate them with the claims file.

2. Schedule the Veteran for comprehensive VA examinations to determine the current severity and symptomatology of her right ankle disorder, left knee disorder, lumbar spine disorder, and bilateral lower extremity sciatica.

Specifically, the back examiner must determine if the Veteran experiences any bladder or bowel incontinence as a result of the service-connected disorder.

The entire VBMS file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation, should be accomplished and all clinical findings should be reported in detail. The examiner should reference disability manifestations demonstrated in the claims file. Specifically as to any reported worsening, the examiner must report a complete explanation as to findings. 

3. After completion of the above and any other appropriate development deemed necessary, readjudicate the issues on appeal on the basis of the additional evidence. The AOJ should consider whether the Veteran's service-connected conditions warrant separate ratings. If the determinations remain adverse to the Veteran, she and her representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs