Citation Nr: 1803448 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 09-45 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability evaluation in excess of 30 percent for adjustment disorder with a history of posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from June 1974 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for adjustment disorder with a history of PTSD, evaluated as noncompensable, with an effective date of April 14, 2008. The Veteran appealed the issue of entitlement to an initial compensable evaluation. In February 2010, the Appeals Management Center (AMC) granted the claim, to the extent that it increased the Veteran's evaluation to 30 percent, with an effective date of January 5, 2010. Since this increase did not constitute a full grant of the benefits sought, the increased initial evaluation issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran testified at a hearing before the undersigned in June 2011. A transcript of the hearing has been associated with the claims file. In March 2012, the Board remanded the claim for additional development. In March 2016, the Board remanded the claim for additional development. In July 2016, the AMC granted an effective date of April 14, 2008 for the 30 percent evaluation. In May 2017, the Board remanded the claim for additional development. FINDING OF FACT The Veteran's service-connected adjustment disorder with a history of PTSD is shown to have been productive of symptoms that include anxiety, depression, and sleep impairment, but not occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for adjustment disorder with a history of PTSD have not been met. 38 U.S.C. §§ 5107, 1155 (2014); 38 C.F.R. §§ 3.102, 4.1, 42, 4.3, 4.7, 4.10, 4.21, 4.130 Diagnostic Codes 9411, 9440 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he is entitled to an increased initial evaluation for his adjustment disorder with a history of PTSD. During his hearing, held in June 2011, the Veteran testified that he had symptoms that included flashbacks, poor sleep, little social interaction, and that he had lost over a month of work due to his symptoms in the last year. The Veteran's spouse testified that he had frequent mood changes, with associated anger. With regard to the history of the disability in issue, see 38 C.F.R. § 4.1 (2017), the Veteran's service treatment records do not show any relevant treatment. Following separation from service, VA progress notes show that he began receiving treatment for psychiatric symptoms in about 2006, with diagnoses of anxiety disorder NOS (not otherwise specified), and rule out PTSD. In August 2007, he was afforded a global assessment of function score of 65. There is no history of hospitalization for psychiatric symptoms. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C. § 1155 (2014); 38 C.F.R. § Part 4 (2017). Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the veteran's favor. 38 U.S.C. § 5107(b). The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's adjustment disorder with history of PTSD has been evaluated under 38 C.F.R. § 4.130, Diagnostic Codes (DCs) 9411-9440, under the General Rating Formula for Mental Disorders ("General Rating Formula"). See 38 C.F.R. § 4.27 (2017) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; the additional code is shown after the hyphen). This hyphenated code can be read to indicate that PTSD is the service-connected disability, and it is rated as if the residual condition is a chronic adjustment disorder. In any event, both disorders are evaluated under the General Rating Formula. Under the General Rating Formula, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted where the disorder is manifested by 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 and maintaining effective work and social relationships. Id. That portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities was based on the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM) IV prior to a change effective August 4, 2014. 38 C.F.R. § 4.130 (2014). The regulation has been changed to reflect the current DSM, the DSM-V. As this appeal was certified to the Board prior to the effective date for this change, DSM-IV is applicable to this claim. See 70 Fed. Reg. 45,093-94 (Aug. 4, 2014). The DSM-IV contained a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health - illness. Higher scores correspond to better functioning of the individual. Although some of the Veteran's recorded symptoms are not specifically provided for in the ratings schedule (e.g., such symptoms as nightmares), the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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). GAF scores ranging between 61 to 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 Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. A letter from the Veteran's supervisor, dated in April 2009, states that the Veteran was always prompt and willing to help with any task needed. He very rarely called in to work, and he always tried to arrange any doctor's appointments. He made the supervisor's job easy. An inter-office communication from a sergeant at the Veteran's place of employment, dated in April 2009, states that the Veteran called in sick three times in January 2009, one day in February 2009, and one time in April 2009. The relevant medical evidence is summarized as follows: A VA PTSD examination report, dated August 5, 2008, shows that the examiner indicated that the Veteran's claims file had been reviewed. The report notes the following: there is no history of hospitalization for psychiatric symptoms. The Veteran has completed an eight-week group therapy program. He declined another recommended 12-week program due to conflicts with work. He is not currently in treatment. The Veteran complained of symptoms that included occasional sleep disturbance, nightmares once a week, anxiousness, and irritability. His symptoms were of mild severity; with the exception of nightmares, his symptoms are present more days than not. The Veteran had developed an alcohol problem during service, with no problems since 1997. He has been employed as a correctional officer since 1997; he reported that he likes his work. He has been married for 30 years. He and his wife have a child, age 26; he has one adult child from a previous marriage. His daughter and three grandchildren live with him. He is quite sociable and interacts easily with others. There is no history of assaultiveness or suicide attempts. His psychological functioning is largely unimpaired. On examination, there was no impairment of thought processes or communication. There were no delusions or hallucinations. There was no evidence of psychosis. There were no suicidal or homicidal thoughts, ideations, plans, or intent. He was oriented to person, place, and time. He is independent in all activities of daily living. Memory is intact. There is no obsessive or ritualistic behavior which interferes with routine activities. Speech has a normal rate and flow, with normal volume. There was/were no sleep impairment, impaired impulse control, or panic attacks. The examiner concluded that the Veteran does not meet the stressor criterion for PTSD, and that he was most appropriately diagnosed with a chronic mild adjustment disorder. The Axis V diagnosis was a GAF score of 70. The examiner stated that the Veteran's symptoms do not result in any significant impairment of his vocational or social functioning, and that they result in only mild psychological distress. A VA PTSD examination report, dated in January 2010, shows that the examiner indicated that the Veteran's claims file had been reviewed. The report notes the following: there is no history of hospitalization for psychiatric symptoms. The Veteran's medications include Klonopin and Ambien, for anxiety. There are no side effects. The Veteran is not receiving group or individual psychotherapy. He complained of moderately severe symptoms that included increased irritability, poor sleep, frequent nightmares, impaired concentration and anxiety. On examination, he was appropriately dressed. Speech was spontaneous and clear. Affect was appropriate and full. Mood was dysphoric. He was oriented to person, place, and time. Thought process was unremarkable. For judgment, he understands the outcome of his behavior. There was suicidal ideation. There were no delusions or hallucinations. For insight, he understands that he has a problem. There was sleep impairment in the form of nightmares, and less restful sleep with impaired energy and concentration the following day. There were no homicidal thoughts, panic attacks or obsessive or ritualistic behavior. He was able to maintain minimal personal hygiene. Impulse control was good. There were no episodes of violence. There was no problem with the activities of daily living. Remote, recent, and immediate memory were normal. The Veteran was employed full time as a correctional officer, where he has worked between 10 and 20 years. He claimed to have lost six weeks of work in the past year, with frequent "stress days" for which he called in sick. The Axis I diagnosis was chronic adjustment disorder. The Axis V diagnosis was a GAF score of 60. The examiner indicated that the Veteran's symptoms were productive of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but with generally satisfactory functioning (normal routine behavior self-care, and conversation). A VA PTSD disability benefits questionnaire (DBQ), dated in June 2016, shows that the examiner indicated that the Veteran's VA e-folder (VBMS or Virtual VA) had been reviewed. The Veteran reported that he was widowed in 2015, after 37 years of marriage. He has three children, and described his relationship with his children as good. He also stated that he had good relationships with his five grandchildren. He stated that he liked watching car racing on television, drinking beer, and traveling. He was a member of two veterans organizations. He lives by himself, although his children come over every once in awhile. He retired from his job the year before, after 17 years as a correctional officer. There was no history of hospitalizations for psychiatric symptoms. He denied a history of suicide attempts. His current medications included sertraline, prazosin, and trazodone. No current suicidal or homicidal ideation was reported. He drank every day, some days he drank three beers, some days he drank more. On examination, the Veteran was neatly dressed. Speech was within normal limits. He appeared euthymic. Affect was within normal limits. Thought process was linear, logical, and goal-directed. There were no indications of derailment or any bizarre behavior. Thought content showed no suicidal or homicidal thoughts. There were no auditory or visual hallucinations. There were no delusions, and no paranoia, obsessions, or compulsions. Sufficient impulse control was reported. Insight and judgment were adequate. Cognition was alert, and oriented to person, time, place, and purpose. Recent and remote memory was appropriate. The examiner indicated that the Veteran's symptoms were productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication. A VA PTSD DBQ, dated in June 2017, shows that the examiner (the same examiner who performed the Veteran's June 2016 VA examination) indicated that the Veteran's VA e-folder (VBMS or Virtual VA) had been reviewed. The Veteran's relevant family, relationship, and employment history was essentially unchanged from that reported in June 2016. The Veteran reported that he continued to do well on trazodone, sertraline, and prazosin. He stated that his anxiety level and nightmares were under good control. He did not report any side effects to his medications. He stated that he had a girlfriend who is very supportive, and that she improved his mood. It was noted that he has consistently denied thoughts of suicide, which he confirmed on current examination. On examination, he was well-groomed and well-dressed. Speech had a normal rate, volume and clarity. Mood was dysphoric. Affect was appropriate with full range. Thought process was goal-directed and linear. Thought content, it was noted that he denied any auditory or visual hallucinations and that there was no evidence of delusions. The Veteran denied suicidal or homicidal thoughts, ideation, or plans. No gross cognitive impairment was noted. Insight was good. There was no impairment in judgment. The Veteran declined psychotherapy. The examiner indicated that the Veteran's symptoms were productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication. The examiner further stated that a GAF score could not be provided, as DSM-IV was no longer in use. Overall, VA progress notes show multiple treatments for psychiatric symptoms, with GAF scores ranging between 58 (in January 2013), and 60 (in February and May of 2013). This evidence shows complaints of symptoms that included flashbacks, nightmares, and impaired sleep. A January 2013 VA progress note indicates that the Veteran was neatly groomed. His speech had a normal rate and volume. He was mildly depressed. Affect was appropriate and broad. Thought content was logical and relevant. There were no delusions, no ideas of reference, and no hallucinations. He had no thoughts, or intent, for self-harm or harm to others. He had intact immediate, recent, and remote memory. He was alert and aware, and he had good concentration. He was oriented to person, place and time. Judgment and insight were fair. Thereafter, this evidence tends to show the following: the Veteran was well groomed and well dressed. His speech had a normal rate, volume and clarity. Mood was dysphoric. Affect was appropriate with full range. Thought process was goal-directed and linear. The Veteran denied any auditory or visual hallucinations. There was no evidence of delusions. The Veteran denied suicidal or homicidal thoughts, intent or plan. No gross cognitive impairment was noted. Insight was good. No impairment in judgment was observed. See e.g., VA progress notes, dated in March, July, and September of 2015, February 2016, April 2017. The Board finds that an initial evaluation in excess of 30 percent is not warranted for the Veteran's adjustment disorder with history of PTSD. The Veteran's symptoms are not sufficiently severe to have resulted in occupational and social impairment with reduced reliability and productivity. The totality of the evidence shows that the Veteran's adjustment disorder with history of PTSD more closely resembles the criteria for not more than an initial 30 percent evaluation. The records during the time period in issue show that the Veteran had no more than mild impairment in speech, memory, insight, judgment, orientation, and though content and process. Although there was evidence of suicidal ideation in early 2010, these symptoms are not shown previously, or thereafter. Overall, the Veteran has reported stable and good relationships with his family. He retired in about 2015, after 17 years with the same employer. He likes to travel and belongs to tow veterans groups. The VA examination reports show that in August 2008, the examiner stated that the Veteran's symptoms do not result in any significant impairment of his vocational or social functioning, and that they result in only mild psychological distress. In January 2010, a VA examiner indicated that the Veteran's symptoms were productive of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but with generally satisfactory functioning (normal routine behavior self-care, and conversation). This most closely corresponds to no more than a 30 percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130. The VA examiner's opinions, dated in June 2016 and June 2017, show that she indicated that the Veteran's symptoms were productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication. This most closely corresponds to no more than a 10 percent evaluation under the General Rating Formula. Id. In summary, there is insufficient evidence of such symptoms as flattened affect; irregular speech; difficulty in understanding complex commands; impairment of short- and long-term memory; and impaired abstract thinking, nor are other psychiatric symptoms shown to have resulted in the required level of impairment. Vazquez-Claudio. The Board has considered the Veteran's assertions as to missed work due to psychiatric symptoms, however, the associated evidence is insufficient to show that his psychiatric symptoms were of such severity as to have resulted in an excessive amount of time lost from work. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Given the foregoing, the Board finds that the Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a 50 percent evaluation, and that the findings do not support a conclusion that the Veteran's symptoms are productive of a "similar severity, frequency, and duration" as those required for a 50 percent evaluation. See 38 C.F.R. § 4.7; Vazquez-Claudio (38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas). The Board has considered the Veteran's statements that he should be entitled to an initial increased evaluation for his adjustment disorder with history of PTSD. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his psychiatric symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant an initial increased evaluation. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his disability. The examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his disability. In deciding the Veteran's claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119, 126 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an initial increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's evaluation should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the day the Veteran filed the claim to the present supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the claimed disability such that an initial increased evaluation is warranted. The issue of whether referral for extra-schedular consideration is warranted must be argued by the claimant or reasonably raised by the record. Yancy v. McDonald, 27 Vet. App 484 (2016); see also Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, neither the Veteran nor the record raises the issue of an extra-schedular rating for the disability in issue. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist In this case, the Veteran has not identified any relevant records that have not been associated with the claims file, and it appears that all pertinent records have been obtained. The Veteran has been afforded examinations. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Id. at 1381 (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). In May 2017, the Board remanded this claim. The Board directed that the claims file be returned to the VA examiner who conducted the Veteran's June 2016 VA PTSD examination, in order to obtain an addendum opinion, i.e., to provide a GAF score with an explanation of the significance of the score assigned. In June 2017, this was done. However, the examiner stated that a GAF score could no longer be provided as DSM-IV is no longer in use. In accordance with the Board's instructions, the Veteran was therefore afforded another examination. Given the foregoing, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER An initial evaluation in excess of 30 percent for service-connected adjustment disorder with a history of PTSD is denied. ____________________________________________ M. MAC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs