Citation Nr: 1801643 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-14 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his Grandmother ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from November 2001 to March 2002 and on active duty in the Army from June 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appellant filed a timely Notice of Disagreement (NOD), received in January 2013. A Statement of the Case (SOC) was issued in April 2014. A timely substantive appeal was received in April 2014. The appellant was afforded a video Board hearing before the undersigned in August 2017. A transcript is of record. FINDING OF FACT The appellant's PTSD is manifested by total social and occupational impairment. CONCLUSION OF LAW The criteria for a disability rating of 100 percent for PTSD have been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant 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). II. Applicable Law A. Increased Evaluations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). B. PTSD Under the rating criteria for mental disorders, a 70 percent evaluation is warranted for PTSD manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9400. A 100 percent evaluation is warranted for 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. In Maurehan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims held that 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, a GAF score 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, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV)). The Board notes that an interim final rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-5. GAF scores have been removed from DSM-5. The provisions of this interim final rule, however, do not apply to the instant case, as these provisions only apply to applications for benefits that are received by VA or that are pending before the RO on or after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule, effective March 19, 2015. 80 Fed. Reg. 53, 14,308 (March 19, 2015). A GAF score of 61 to 70 represents 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. A GAF score of 51 to 60 represents 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 coworkers). 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). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a 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). Lesser scores reflect increasingly severe levels of mental impairment. American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th Ed. (1994) (DSM-IV). While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, they are a useful tool in assessing a veteran's disability and assigning ratings. 38 C.F.R. § 4.130. However, they are just one of many factors considered when determining the appropriate rating. C. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. III. Analysis In a Statement in Support of Claim received in July 2012, the appellant reported that he cannot function in a workplace and can hardly function at home. He reported nightmares and being told that he has survivor's guilt. He is generally angry, agitated, or sad for extended periods. The appellant was afforded a VA examination in August 2012. He reported recurrent nightmares and dissociative flashbacks three to four times per month. After he grabbed his shotgun when he thought he heard something and fired back, he told his grandmother that the house was surrounded by Iraqis. She then had to talk him down. The appellant reported that he is anxious and closes himself off in his bedroom. He reported avoiding anything related to Iraq and feeling detached from everyone except his grandmother. He has no friends. Former friends say he is a different person following his service. He reported a restricted range of affect, particularly regarding positive emotions. He had a diminished interest in previously-enjoyable activities. He is socially isolated, must have his back to the wall, cannot go anywhere with a crowd, and is constantly watching peoples' hands. He has essentially stayed in his bedroom for the past five months. He endorsed difficulty sleeping, waking every two hours. Prior to being prescribed Ambien, he would go for days without sleep. He reported frequent irritability and angry outbursts. He endorsed hypervigilance, as well as exaggerated startle responses. The examiner assigned a GAF score of 40 and opined that the appellant experienced occupational and social impairment with deficiencies in most areas. He noted that both the appellant and his grandmother reported that the appellant experienced dissociative episodes. The examiner observed that such were more extensive than flashbacks. The examiner observed suicidal ideation, although the appellant denied suicidal or homicidal ideation when directly queried. Examination revealed adequate hygiene and elevated psychomotor activity with constant tremoring/bouncing of the legs. The appellant grew so uncomfortable with something he saw on the floor under a chair, he was compelled to investigate and remove it. Eye contact was appropriate. Speech and thought processes were normal. Mood was anxious and affect was within normal range. Short-term memory was mildly impaired. Insight was adequate, while judgment was poor, by history. In his January 2013 NOD, the appellant stated that he had been institutionalized after a suicide attempt because he was so depressed that he did not want to live anymore. He stated that he does not want to die as badly anymore; however, he still cannot handle crowded places. He barely leaves his house and cannot work, which makes him feel useless and like he is a burden on society. He stated that he has not had a girlfriend in two years because of his nightmares, his attitude, and his inability to go out. A March 2013 Report of General Information states that the appellant reported that he cannot stand to be around anyone, which precludes him from being able to work. A statement from the appellant's grandmother, his custodian, was received in September 2013. She stated that the appellant has tried to commit suicide on more occasions that she can count. She explained that he has been "a mess" since his active service. She reported that she had him committed for a time and that he has taken anger management and relationship-building classes. She stated that he feels useless, appears very depressed, and is unable to try to have a life for himself. She helps him manage money. He does not talk to any friends or pursue romantic relationships; rather, he stays in his room. He feels like everyone is out to get him. He has problems even being in the grocery store because he says there are too many people. During his August 2017 Board hearing, the appellant testified that he has attempted suicide on three or four occasions, although not all had been previously reported. He does not like going out and did not like being at the hearing. He stated that he does not leave his bedroom. His grandmother brings his food to his room. He only leaves his room if he absolutely to, such as to see a doctor. He spends his days watching television and playing video games. He also talks to his grandmother. He sleeps for two to three days straight once or twice a week. He reported hypervigilance in that he used to keep a gun under his pillow and another by his door, prior to his suicide attempts. He also looks out his windows whenever he hears a sound outside. He states that sometimes there are actually things or people out there, but other times there are not. He hears people hollering at him overnight, but no one is really there. He has no friendships other than his grandmother. He stated that his last documented suicide attempt was in 2009, but he has attempted suicide since. He reported that his grandmother had to pull a shotgun out of his mouth two or three years prior. He bathes once or twice a week and often has to be reminded by his grandmother to do so. He also requires reminders to brush his teeth, perform other hygienic activities, and take his medicine. The appellant was afforded a contracted examination in September 2017. The claims file was reviewed. The examiner opined that the appellant had total occupational and social impairment. The appellant reported that he remained withdrawn socially. He rarely leaves his home, except for occasional grocery trips with his grandmother. He does not leave his home without his grandmother. She takes him to his appointments. His grandmother also bought him a lawnmower in hopes he would use it outdoors, but he has done so just twice in two years. The appellant rarely helps with chores; rather, he stays in his room, plays video games, and browses the internet. He reported that his PTSD had worsened since his last examination. Examination revealed appropriate grooming and a strong tobacco smoke scent. Mood was depressed and anxious at times with flattened affect. Eye contact was intermittent; however, it improved considerably throughout the examination. The appellant frequently looked to his grandmother to answer questions until she was asked to leave the room. The appellant was constantly fidgeting with his hands. He was observed to fold a piece of paper and poke his hands with an unfolded paperclip. Speech began as very halting with a pronounced stammer, but it improved considerably throughout the examination. The appellant was moderately agitated while he spontaneously offered information about traumatic events experienced. He was suspicious, angry, and irritable toward others. He denied recent or current suicidal ideation. He denied premeditated violent ideation, although he could be violent spontaneously. Insight and judgment were diminished. He was observed to obsess about religious beliefs and the end of the world. Occasional auditory hallucinations were reported. The examiner opined that the appellant did not appear fully capable of fully and independently managing his financial affairs. Upon weighing the evidence, the Board finds that the evidence is at least in relative equipoise as to whether the appellant experiences total occupational and social impairment. Thus, a total 100 percent rating for his PTSD is warranted. As summarized in detail above, the evidence shows that the appellant's service-connected PTSD has been manifested by symptoms such as near total social isolation to the point that the appellant is essentially unable to leave his bedroom; auditory hallucinations; multiple suicide attempts; and an inability to perform activities of daily living such as preparing his own food and bathing and brushing his teeth on a regular basis without prompting from his grandmother. At the most recent examination, the examiner concluded that the appellant's PTSD symptoms were productive of total social and occupational impairment. The Board further notes that the appellant has been unable to engage in employment activities for several years. The credible testimony of the appellant and his grandmother, as well as the mannerisms and demeanor of the appellant, at the August 2017 Board hearing made it further evident to the undersigned that the appellant's PTSD symptoms were productive of total social and occupational impairment. Given the foregoing, the Board concludes that a 100 percent rating for PTSD is warranted. ORDER Entitlement to a rating of 100 percent for posttraumatic stress disorder is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs