Citation Nr: 1802618 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-23 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for PTSD. REPRESENTATION Appellant represented by: Attorney, Robert Chisholm ATTORNEY FOR THE BOARD Department of Veterans Affairs INTRODUCTION The Veteran served in active duty in the U.S. Army from February 1969 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In an April 2014 decision, the Board denied the Veteran's appeal to an initial disability rating in excess of 30 percent for PTSD. That decision was appealed to the United States Court of Appeals for Veteran's Claims (Court), and in July 2015 the Court vacated the Board's April 2014 decision and remanded the matter back to the Board. In a November 2015 decision, the Board remanded the matter for the collection of additional records and a new VA examination. In February 2017, the Board granted a 50 percent initial disability rating for PTSD. However, the Board denied the claim of entitlement to a disability rating of higher than 50 percent for PTSD. In October 2017, the Court granted a joint motion to vacate and remand the February 2017 decision of the Board denying entitlement to an initial rating in excess of 50 percent for PTSD. This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. FINDING OF FACT The Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. CONCLUSION OF LAW The criteria for a rating for PTSD of 70 percent, but no higher, for the entirety of the appeal period have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist 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 duty to assist argument). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c) (2017). Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's PTSD has been evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130. The General Rating Formula for psychiatric disabilities provides 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 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, and recent events) is rated 30 percent disabling. 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; and difficulty in establishing and maintaining effective work and social relationships is rated 50 percent disabling. 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); and inability to establish and maintain effective relationships is rated 70 percent disabling. 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; and memory loss for names of close relatives, own occupation, or own name is rated a maximum 100 percent disabling. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists but rather 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 disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The rating agency shall assign a rating 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. 38 C.F.R. § 4.126(a). VA will also consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). 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 occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Analysis The Veteran contends that his PTSD is more severe that the currently assigned 50 percent rating. Having reviewed all the evidence of record, including evidence in the record that indicates the Veteran suffers from hallucinations, the Board agrees that the most probative evidence of record establishes that a 70 percent rating, but no higher, is warranted during the entirety of the appeal period. The Veteran's treatment records with his primary care physician indicate that he has had a diagnosis of PTSD from 2012 to 2015. Also included in the evidence of record are several assessments based on the Veteran's treatment at Goldsboro Psychiatric Clinic - GPC, P.A. In a June 2, 2010 update and summary of the Veteran's treatment at Goldsboro Psychiatric Clinic, the psychiatrist indicated that the Veteran had a diagnosis of chronic PTSD. He had nightmares twice a week consisting of walking in panic and sweats as well as flashbacks twice a week lasting at least 5 minutes. He had intrusive thoughts, startled easily, was hyper vigilant and cannot tolerate anyone behind him. He socialized occasionally with church family and kin. His recent memory was moderately impaired. His working memory was 75% impaired. Anger, sadness, and fear came upon him 25% of the time. The summary also indicated that the Veteran felt depressed 25% of the time with low energy and little interest in things. However, the summary also noted that the Veteran is competent to manage his financial affairs and to make life-changing decisions. Because of his PTSD, the summary indicated the Veteran was moderately comprised in his ability to sustain social relationships and also moderately compromised in his ability to sustain work relationships. July 2013 and February 2013 Goldsboro Psychiatric Clinic patient assessments indicate the Veteran had broken sleep as well as occasional nightmares, panic attacks, flashbacks, night sweats, and hallucinations. The Veteran also had a depressed mood and flattened affect. However, the assessments also indicated that the Veteran made eye contact, was cooperative, alert, oriented, was aware of problems, understood facts, and was able to draw conclusions and problem solve. In these July 2013 and February 2013 assessments, the psychiatrist assigned the Veteran a GAF score of 45. Patient psychiatric assessments from the Goldsboro Psychiatric Clinic - GPC, P.A. in September 2015, March 2015, September 2014, January 2014, and October 2013 indicate similar issues of broken sleep, weekly nightmares as well as occasional panic attacks, flashbacks, night sweats, and hallucinations. The assessments indicated that the Veteran was easily distracted, did not socialize, and had a flattened affect, and depressed mood. However, the Veteran made eye contact, was cooperative, alert, aware of problems, understood facts, and was able to draw conclusions and problem solve. In these assessments, the psychiatrist assigned the Veteran a GAF score of 40. A March 2016 patient assessment from the Goldsboro Psychiatric Clinic reflects the Veteran's reports of sleep issues, to include occasional nightmares and panic attacks, daily flashbacks, weekly night sweats, and occasional hallucinations. The psychiatrist notes that the Veteran was easily distracted and had a flat affect, depressed mood, and did not socialize. However, the Veteran made eye contact, was cooperative, aware of problems, understood facts, and was able to draw conclusions. In the March 2016 assessment, the psychiatrist assigned the Veteran a GAF score of 40. In addition to the Veteran's Goldsboro Psychiatric Clinic patient assessments, the Veteran also underwent psychiatric examinations in March 2009, January 2016, and May 2016. In a March 2009 examination by the Crystal River Psychiatric Group ordered by the VA, the psychiatrist indicated that the Veteran had recollections of his stressor several times a week. The psychiatrist indicated that the Veteran avoided cues and had a markedly diminished interest or participation in significant activities. He lost interest in most things, much more since the death of his wife. However, mentally, he did not have difficulty performing activities of daily living and did not appear to pose any threat of danger or injury to himself or others. His communication and speech were within normal limits. His appearance and hygiene were appropriate. The psychiatrist assigned the Veteran a GAF score of 70. In a January 2016 PTSD Disability Benefits Questionnaire (DBQ) in which the Veteran's VBMS files were reviewed, the psychologist confirmed the Veteran's PTSD diagnosis. The Veteran exhibited PTSD symptoms such as a depressed mood, anxiety, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), difficultly in adapting to stressful circumstances, including work or a work-like setting, and inability to establish and maintain effective relationships. However, the psychologist opined that, while a mental condition has been formally diagnosed, the Veteran's symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In addition, despite the fact that the Veteran has PTSD, he worked and did the job well. The Veteran was not considered a serious risk to himself or others. The Veteran was also deemed capable of managing his financial affairs. In a May 2016 PTSD DBQ in which the Veteran's claims file was reviewed, the psychologist confirmed the Veteran's PTSD diagnosis. The psychologist indicated that, currently, his mental problem has a limited impact on his adjustment. He would be able to communicate, remember, and follow instructions. His judgment would be adequate, and he can think abstractly. He would have some difficulty interacting with co-workers and others because in such a situation his anxiety would be very great. He would be irritable. Changes would be difficult, and working in enclosed places would be difficult. However, the Veteran would do fine in loosely supervised situations. The psychologist opined that the Veteran's periods of unemployment from February 23, 2010, May 25, 2010, April 24, 2010, and November 17, 2011 were less likely than not related to his PTSD because his symptoms did not rise to the level of total occupational impairment. Rather, the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Based on a review of the evidence, the Board finds the treatment records from Goldsboro Psychiatric Clinic to be the most probative evidence regarding the severity of the Veteran's PTSD. These records from Goldsboro Psychiatric Clinic reflect in depth interaction with the Veteran, thorough review of the record, application of clinical testing and incorporation of the results into the assessment of the Veteran's symptomatology and the severity of his PTSD. Thus, the Board finds that the criteria for a 70 percent rating for the Veteran's PTSD are present throughout the appeal period. During the appeal period, the Veteran reported ongoing symptoms of broken sleep, nightmares, panic attacks, flashbacks, night sweats, and hallucinations. The Veteran does not see family or socialize otherwise, especially after the passing of his wife. In addition, the Veteran's more recent GAF scores of 40 from Goldsboro Psychiatric Clinic are consistent with his treatment records which indicate that the Veteran has major impairment with family relations, memory, and mood. As such, the Board finds that during this period of the appeal, the Veteran's PTSD manifested in deficiencies in most areas, including family and social relationships and impaired mood and thinking. Although the Veteran admittedly does not experience all of the listed symptoms for a 70 percent rating, the clinical findings during this period of the appeal describe experiences, thoughts, and emotions due to PTSD that interfere with his daily functioning and relationships with others and cause considerable difficulty in adapting to stressful circumstances. It all supports a finding that the Veteran's overall symptoms are of such frequency, severity, and duration as to equate to those listed for a 70 percent evaluation. See Vazquez-Claudio, 713 F.3d at 112. Increased depression, isolation, nightmares, and difficulty in concentration appear to significantly affect the Veteran's ability to function independently, appropriately, and effectively. While the evidence of record warrants a 70 percent disability rating for the Veteran's PTSD, there is no indication of total occupational and social impairment as contemplated by the criteria for a 100 percent rating. The Veteran is not beset by gross impairment in thought processes, or by delusions. There is no indication he has engaged in grossly inappropriate behavior, there is no objective evidence of memory loss or cognitive defects. Although he has experienced hallucinations, this symptom is adequately compensated by the 70 percent rating assigned. Moreover, although the Veteran has social impairment it is not total, nor has he demonstrated total occupational impairment. The evidence of record indicates that this psychiatric condition does not prevent him from working. Thus, he has not demonstrated symptomatology that equates in frequency, duration or severity to equate to a 100 percent rating. Accordingly, the Board does not find that the criteria for a 100 percent rating are satisfied in this case. In sum, the Veteran's symptomatology, as captured by the medical record covering the period at issue, warrants a 70 percent disability rating but no higher. Accordingly, a rating of 70 percent for PTSD is warranted for the entirety of the appeal period. ORDER Entitlement to an initial disability rating of 70 percent for PTSD, but no more, for the entirety of the appeal period is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs