Citation Nr: 1801922 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-30 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Board remanded the claim for further development. FINDING OF FACT The preponderance of the evidence shows that the Veteran's PTSD symptomatology more nearly approximated occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veteran's Claim Assistance Act of 2000 (VCAA) VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA's duty to notify was satisfied by a letter dated in April 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also met its duty to assist the Veteran. VA obtained all relevant medical records and evidence identified by the Veteran. These records have been associated with the claims file. The Veteran has not identified any additional pertinent evidence that is outstanding and available. Further, VA afforded the Veteran appropriate VA medical examinations in July 2010, September 2012, and March 2017. Thus, the Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore, appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Stegall Compliance The Board finds there has been substantial compliance with its February 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) III. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide that a 30 percent evaluation is warranted for 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). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is warranted for 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 effective work and social relationships. Id. A 70 percent evaluation is warranted for 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); inability to establish and maintain effective relationships. Id. 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. 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 GAF (Global Assessment of Functioning) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). This is more commonly referred to as DSM-IV. A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF 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 of 61 to 70 is indicative of 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, has some meaningful interpersonal relationships. The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Effective March 19, 2015, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replaced them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 80 Fed. Reg. 53, 14308 (March 19, 2015). The provisions of the 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. As the Veteran's claim was pending before this date, the amendment is not applicable. The Veteran asserts that his disability is more severe than the 30 percent rating depicts. See Correspondence entered in Caseflow Reader in November 2012. Taking into account all relevant evidence, the Board finds that an initial evaluation in excess of 30 percent for the Veteran's service-connected PTSD is not warranted. From February 2009 to April 2010, the Veteran was seen for his psychiatric disorder. See Medical Treatment Record-Government Facility entered in Caseflow Reader in May 2010. The Veteran's experienced nightmares, re-experiencing Vietnam events, dysphoria, and intrusive thoughts. See, e.g., at 5, 6. In March 2009, a VA Registered Clinical Social Work Intern submitted a statement regarding the Veteran's psychiatric disorder. See Medical Treatment Record-Government Facility entered in Caseflow Reader in March 2009. The Social Work Intern noted the Veteran's symptoms were sleep disturbance to include the Veteran hitting the wall or headboard, throwing things, and yelling; intrusive thoughts related to his traumatic experiences; difficulty maintaining gainful employment; history of self-medicating with alcohol which the Veteran had reduced over the previous seven years; hypervigilence; emotional numbing; depression; difficulties within interpersonal relationships; loss of self-esteem; diminished participation in activities of interest; and social isolation. The Social Work Intern stated that the Veteran's overt symptoms led and continued to lead to social and industrial impairment. Additionally, the Veteran's isolating tendencies and PTSD symptoms led him to experience significant degrees of depression and anxiety. The Social Work Intern diagnosed the Veteran with chronic PTSD. See id. In May and August 2009, the Veteran saw a VA psychiatrist. See Medical Treatment Record-Government Facility entered in Caseflow Reader in January 2009, p. 1 and 7. The Veteran stated that he had PTSD related nightmares. See id. at 1. However, he had been taking medication which reduced the aggressiveness of his nightmares. See id. The Veteran also experienced anger, road rage, hypervigilence, and an exaggerated startled reflex. See id. The examiner noted that the Veteran was casually dressed with appropriate grooming. The Veteran made good eye contact and spoke spontaneously with normal rate and volume. He was alert and fully oriented. His mood was okay, and his affect was reactive and mildly anxious. In August, the Veteran's affect was reactive and calmer. For both months, his thought process was linear without derailment. He denied active psychotic symptoms, mania, hypomania, obsessions, and compulsions, but the examiner noted hypervigilence and nightmares. The Veteran also denied having suicidal, homicidal, or violent ideations. The Veteran's immediate recall was intact, and his short and long-term recall were grossly normal. His concentration was adequate and insight fair. He understood problems and was able to verbalize possible solutions. His judgment was adequate, and he understood treatment plan and made informed decisions. The examiner diagnosed the Veteran with anxiety disorder with PTSD symptoms. See id.; see also Medical Treatment Record-Government Facility entered in Caseflow Reader in March 2009. In March 2009, a VA psychiatrist performed a comprehensive suicide risk assessment and found the Veteran to be at low risk. See id. at 10. In April 2010, the Veteran's wife submitted a note detailing her personal experiences with the Veteran. She described the Veteran's problems with alcohol and his nightmares. She stated that after a nightmare, she found him huddled on the living room floor with his gun in his hand. See Statement in Support of Claim entered in Caseflow Reader in May 2010. In July 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his psychiatric disorder. The Veteran stated that he grew up with nine siblings. He stated that his relationships with him family members was fine. He had five to ten close friends. At the time of the examination, the Veteran was married to his second wife for six years. He described the marriage as alright. However due to his violent nightmares, the couple did not sleep in the same bed. The Veteran stated that he visited with his children, took care of his dog, played cards with three to four couples, and occasionally went to the local theme park or flea market. The Veteran stated that he reduced his alcohol consumption. The examiner noted that the Veteran was clean, neatly groomed, and appropriately dressed. The Veteran's psychomotor activity and thought content were unremarkable. He did not have a problem with his ability to maintain personal hygiene or activities of daily living. His speech was unremarkable, spontaneous, clear, and coherent. The Veteran was friendly and attentive. He described his mood as "OK, got a little tense driving up here in traffic." His affect was normal. The Veteran's attention was intact, and he was able to spell a word forwards and backwards. The Veteran was intact to person and place; however, was not intact to time, i.e., he missed the date by one day. He was not delusional; did not experience hallucinations; did not have suicidal or homicidal thoughts, assaultiveness, panic attacks; or behave inappropriately. The Veteran understood the outcome of his behavior. Regarding his insight, he partially understood that he had a problem but did not understand proverbs. The Veteran experienced obsessive or ritualistic behavior, i.e., counted to six or tapped his foot six times. The Veteran's recent, remote, and immediate memories were normal. The examiner noted that the Veteran experienced non-PTSD symptoms, i.e., depression, either once or twice a day for a few minutes. The symptoms were mild. The Veteran stated that the recent death of his good friend and death of a dog were the precipitating factors for his symptoms. The examiner noted that the Veteran did not experience mania or hypomania. The Veteran was capable to managing his own finances. The examiner diagnosed the Veteran with anxiety disorder and assigned a GAF score of 62. In September 2010, Dr. M.B.W., Ph.D., LCSW examined the Veteran. See Third Party Correspondence entered in Caseflow Reader in December 2010. During the evaluation, the Veteran indicated that he had thoughts about killing himself, but would not follow through. When he became upset, he would lose control, and was unable to make sense out of his feelings. The Veteran stated that he was a very heavy drinker and would drink up to a case of beer a day to try to forget his experiences. He would also hit walls and closet doors. The examiner stated that the Veteran was well-groomed and was appropriately dressed. The Veteran spoke somewhat cursorily, without much detail about his experiences. However, he was attentive, and his speech was clear. His thought processes were intact, and he denied delusions, hallucinations, and inappropriate behaviors. The Veteran recalled events that occurred in Vietnam. The examiner stated that the Veteran expressed self-anger and self-disappointment, depressive symptoms, and unusual cognitive experiences which were indicative of serious dissociative experiences and abilities. The examiner diagnosed the Veteran with PSTD. The examiner believed that the Veteran's GAF to be around 40 or 45. See id. at 2-5. In September 2012, the Veteran was afforded a VA examination to determine the severity of his psychiatric disorder. The examiner reviewed the Veteran's claims file and performed an in-person examination. The Veteran stated that he was married. He was in contact with his four grown children, and he occasionally socialized with his friends. He stated that he had ongoing nightmares accompanied by physical agitation. He denied current depressive symptoms. However, he became depressed during the hot summers when he was unable to engage in outside activities and would then think about Vietnam. He reported hypervigilence and reactivity but denied losing control of his anger. He also denied suicidal thoughts. The Veteran stated that he seldom drank beers and did not engage in illicit drug use. The Veteran scored 27/30 on his mini-mental state exam which the examiner noted was not significant for cognitive impairment. The Veteran last worked as a bookkeeper, and in 2008, the organization he worked for closed down. He did not seek further employment. He was capable of handling his own finances. The examiner noted that the Veteran depicted depressed mood, anxiety, and chronic sleep impairment. The examiner noted the Veteran's experienced occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by medication. The examiner confirmed the anxiety diagnosis. From 2008 to 2017, the Veteran was seen at the Ocala CBOC. See Medical Treatment Record-Government Facility entered in Caseflow Reader in March 2017. At his examinations, the examiners noted that the Veteran was casually dressed with appropriate grooming. He made good eye contact and spoke spontaneously with a normal rate and volume. The Veteran's mood was "all right" and his affect was reactive, bright, or mildly anxious. His thought process was linear without derailment. He was alert and fully oriented. He denied homicidal ideation, psychotic symptoms other than one hallucination (the examiner thought the hallucination was related to the Veteran's nightmare. See id. at 1), and suicidal ideations, intent, or plan. His immediate recall and concentration were intact. However, his short-term recall was reduced. See id. at 24. He understood problems and was able to verbalize possible solutions. Id. The Veteran's insight was fair, and his judgment was adequate. He understood the treatment plans and made informed decisions. Id.; see, e.g., at 2, 73, 338. Pursuant to the February 2017 Board remand, the Veteran was afforded another VA examination to determine the severity of his psychiatric disorder. See March 2017 VA Examination. The examiner reviewed the Veteran's e-folder and CPRS and performed an in-person examination. During the examination, the Veteran reported that he had a couple of friends and was friendly with his first wife. The Veteran stated that in 2013, his second wife passed away. He slept an average of three or four hours each night. At the examination, the Veteran was well-groomed and wore appropriate and clean clothing. The Veteran was alert and did not exhibit psychotic symptoms. He stated that he went to the store two-to-three times a week. His affect was euthymic, not tearful. Regarding panic attacks, the Veteran stated "I just shake. I can't control it. I sweat. Can't sit still . . ." The Veteran stated the attacks were down to two-to-four maybe five times a week. When the VA examiner asked what triggered the attacks, the Veteran stated "since I quit drinking." The examiner noted that the Veteran was taking medication for his mental disorder. The Veteran stated that the medication caused him to hallucinate. The Veteran denied suicidal attempts and violence or assaultiveness. He was capable of managing his financial affairs. The examiner noted the Veteran's experienced occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner diagnosed the Veteran with unspecified anxiety disorder. Following careful review of all the evidence of record, to include the Veteran's VA treatment records, lay statements, private medical report, and his VA examination report, the Board finds the Veteran's PTSD was manifested by symptomatology more nearly corresponding to the currently assigned 30 percent rating. The Board notes that the Court has held that the symptoms enumerated under the schedule for rating mental disorders 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, while the Veteran did at times have some moderate PTSD symptomatology, his overall symptomatology has been generally mild, with no evidence of significant interference with his social and occupational life. He has always been able to maintain his activities of daily living and finances. He reported being friendly with his first wife. The Veteran spent time with his children and had a fine relationship with his family. Also, he had close friends with whom he socialized. Additionally, the Veteran's VA examiners found the Veteran's thought process to be linear without derailment, and there was no evidence of psychotic symptoms or cognitive deficit or long-term memory impairment. The Board notes that VA treatment records indicated that the Veteran had reduced short-term memory. However, his concentration was intact, and he was able to spell a word backwards and forwards. The examiners found the Veteran's judgment to be adequate and insight fair. He understood the treatment plans and made informed decisions. The examiners also noted that the Veteran was generally able to function satisfactorily, with routine behavior, and self-care. His speech was unremarkable, spontaneous, clear and coherent. The Veteran denied suicidal ideation, delusions, and inappropriate behavior. The July 2010 VA examiner assigned a GAF score of 62, which generally indicates mild symptoms. In March 2009, a VA Registered Clinical Social Work Intern noted that the Veteran had difficulty maintaining interpersonal relationship. However, as noted above, the Veteran had relationships and socialized with friends and family. In September 2010, a private examiner noted that the Veteran had thought about killing himself and lost control when he became upset. She assigned GAF scores between 40 and 45 which would indicate serious symptoms. In March 2009, a VA psychiatrist performed a comprehensive suicide risk assessment and found the Veteran to be at low risk. Additionally, the Board notes that since 2010, the Veteran has denied suicidal and homicidal ideations and/or violence or assaultiveness. The Board notes that the Veteran stated that he had been hallucinating since 2015, and obsessive/ritualistic behavior was noted during the July 2010 VA examination. However, in viewing the evidence in its entirety, the Board finds that the Veteran's overall disability picture is most consistent with a 30 percent evaluation. Therefore, a rating in excess of 30 percent is not warranted. The Board finds it significant that the Veteran worked until 2008, at which point he left his employment because his place of employment closed down, and he has not sought further employment. The record does not reflect that his PTSD symptoms make it difficult for him to establish effective work relationships. At worst, his symptoms appear consistent with no more than occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The criteria for a finding of a 50 percent evaluation, the next higher evaluation, are not met. As such, the Board finds that the preponderance of the evidence of record is against a grant of an initial increased rating in excess of 30 percent for PTSD. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs