Citation Nr: 1803903 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-14 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD B. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT During the period on appeal, the Veteran's PTSD, was manifested, at worst, by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating of 70 percent for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initial rating claims arise from granted claims of service connection and do not require unique 38 U.S.C. § 5103 notice because the purpose that the notice was intended to serve is fulfilled when service connection has been granted and an initial rating has been assigned. Once the Veteran's claim of service connection was substantiated, his filing of a notice of disagreement with the RO's initial rating decision did not trigger entitlement to additional notice under 38 U.S.C. § 5103. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). The Veteran was not entitled to additional notice for his claim of entitlement to an increased initial rating for PTSD. As to the duty to assist, VA has made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. See 38 U.S.C. § 5103A(a), (b) and (c). The RO has obtained the Veteran's service treatment records, VA medical records, and private treatment records. The Board notes VA treatment records produced after the certification of this case to the Board. The RO has not reviewed these treatment records. The Board finds the information contained in these VA treatment records to be redundant insofar as it demonstrates the impairment caused by disability on appeal. The Board also notes that VA afforded the Veteran with examinations and opinions to evaluate the severity of his PTSD. The Board finds these reports adequate to decide the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). II. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings that are based on average impairment of earning capacity. See 38 U.S.C. § 1155; Part 4. Separate diagnostic codes identify the various disabilities, and disabilities must be reviewed in relation to their history. See 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, resolving any reasonable doubt regarding the degree of disability in favor of the claimant, evaluating functional impairment on the basis of lack of usefulness, and evaluating the effects of the disability upon the veteran's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). This analysis is undertaken with consideration of the possibility that different ratings may be warranted for different periods. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the issue is the initial disability evaluation assigned, VA must consider the medical evidence since the effective date of service connection, as well as whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Further, "[w]here 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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. The Board has the authority to consider the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The probative value of a medical opinion is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Acquired psychiatric disabilities are evaluated under 38 C.F.R. § 4.130, with PTSD evaluated under Diagnostic Code 9411. Under that diagnostic code, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity. This may be due to such symptoms such as, for example: 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. See id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, and mood). This may be due to such symptoms such as, for example: suicidal ideations; 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 worklike setting); and the inability to establish and maintain effective relationships. See id. A 100 percent rating is warranted if there is total occupational and social impairment. This may be due to such symptoms such as, for example: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. See id. The above-cited criteria 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, 442 (2002). "[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." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. See 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. See Mauerhan, 16 Vet. App. at 436. Further, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of an examination. See id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale which reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The Board notes that the GAF scale was removed from the more recent DSM-5 for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-5, Introduction, The Multiaxial System (2013). Still, the GAF score and interpretations of the score are important considerations in the rating of a psychiatric disability, though the GAF score assigned to a veteran is not dispositive of the severity of the veteran's mental health disability. See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF score must be considered in light of the actual symptoms manifested by the veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). According to the pertinent sections of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), a GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors, and that the examinee suffers no more than slight impairment in social, occupational, or school functioning. A GAF score of 61 to 70 indicates some mild symptoms, or that the examinee suffers from some difficulty with social, occupational, or school functioning, but that the examinee generally functions well and has some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). A November 2010 VA treatment record indicates that the Veteran reported depressed mood, crying spells, hopelessness or worthlessness, and wished "he were in heaven but did not have suicidal ideation." He was assigned a GAF score of 80. A January 2011 VA treatment record notes the Veteran as well groomed, cooperative, attentive, with coherent speech, an euthymic mood, appropriate affect, and good judgement. The author of the treatment record described the Veteran as "self-contained," and expressed difficulty getting the Veteran to "elicit symptoms[.]" The Veteran was assigned a GAF score of 70. A VA treatment record from later that month indicates that the Veteran reported difficulty falling asleep, as well as irritability or anger. The Veteran also described thoughts of suicide within one month of the date of the treatment record. A February 2011 VA treatment record notes that the Veteran reported difficulty falling asleep, outbursts or anger, and difficulty concentrating. The Veteran indicated that these symptoms did not affect his marriage, children, or family life, and reported satisfaction with his family relationships. He was assigned a GAF score of 65. A March 2011 VA treatment record notes the Veteran as well groomed, cooperative, attentive, with coherent speech, an anxious mood, appropriate affect, and good judgement. The Veteran denied suicidal or homicidal ideations. He reported no interest or activities. He was assigned a GAF score of 70. During an August 2011VA examination to assess whether the Veteran suffered from PTSD, the Veteran reported anxiety, decreased energy, difficulty falling asleep, nightmares, a history of violent behavior, and social isolation. He expressed that his symptoms affected his daily functioning, which resulted in the Veteran "remaining isolated and spending a great deal of time alone in his bedroom in an attempt to avoid situations that may trigger his anxiety episodes." He also reported markedly diminished interest in significant activities, and detachment or estrangement from others. The Veteran described a loving and stable relationship with his wife. He also described close relationships with his children, but expressed that "his children are somewhat scared of him due to his inability to control his anger in the past." The examination report notes the Veteran as displaying appropriate appearance and hygiene, normal speech, normal mood, and no delusions or hallucinations. The author of the August 2011VA examination report opined that the Veteran experienced mild or transient symptoms that caused occupational and social impairment with decrease in work efficiency and occupational task only during periods of significant stress. He was assigned a GAF score of 60. As part of the Veteran's April 2014 formal appeal (VA Form 9), the Veteran reported increased depression and anxiety as a result of his PTSD. A May 2016 VA treatment record notes the Veteran as experiencing little interest or pleasure, hopelessness, trouble sleeping, low energy, trouble concentrating, and suicidal ideations. The Veteran expressed feeling that "life was not worth living," and "wished he were dead such as going to sleep and not waking up," in the year preceding the VA treatment record. He also described "vague [suicidal ideations] occurring infrequently." A September 2016 VA treatment record indicates that the Veteran reported "increased irritability ('feeling cocked and loaded, just ready for a fight[']), angry outbursts (generally directed at his wife or other family members), and persistent negative emotional state (anger, guilt, and shame)." He described going to his son's birthday party, though he left after 30 minutes due to anxiety caused by the number of people in attendance and the noise level. The Veteran also reported that his anger caused issues with his marriage. He denied suicidal or homicidal ideations. The Veteran displayed appropriate grooming, normal speech, depressed mood, and good judgement. During a November 2016 VA examination to assess the severity of the Veteran's PTSD, the Veteran reported symptoms including depression, anxiety, feelings of detachment or estrangement, persistent negative emotional state, and impaired impulse control, such as unprovoked irritability with periods of violence. The author of the November 2016 VA examination report opined that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A July 2017 VA treatment record indicates that the Veteran denied suicidal and homicidal ideations, but reported depression and that he had been "snapping" at his wife. The Veteran attributed these behaviors to changes in his medication, including medication for the management of pain. A treatment record recorded later that month notes that the Veteran reported increased anxiety, difficulty sleeping, difficulty concentrating, decreased interest, and irritability as a result of changes to his various medications. He displayed an appropriate appearance, normal speech, a frustrated mood, appropriate affect, good judgement, good reliability, and normal memory. The Veteran's private treatment records, from in or about 2009 to 2014, describe him as suffering from depression and anxiety during the period on appeal. Both the Veteran's private treatment records and VA treatment records describe the Veteran as taking various prescriptions to treat the symptoms of his psychiatric disability. The Veteran's GAF scores indicate that the Veteran suffered from mild to moderate symptoms of PTSD during the period on appeal. While the Veteran's GAF scores are not dispositive of the Veteran's level of disability, they are probative of the severity of the Veteran's PTSD during that period. See Richard, 9 Vet. App. at 267. In this case, the Veteran's treatment records prove more probative. The evidence of record shows that the overall symptomatology picture during the period on appeal corresponded to symptoms of PTSD that reflect or more closely approximate a disability rating of 70 percent, i.e., occupational and social impairment with deficiencies in most areas due to symptoms akin to those reported by the Veteran. Indeed, while the symptoms reported may not have been consistently supportive of a 70 percent disability evaluation, the fluctuations in symptoms are considered to be normal fluctuations in the severity of the symptoms rather than clear and defined time periods where the severity of the symptoms changed. In sum, upon consideration of the overall disability picture, the Board finds that a uniform rating is most appropriate and that the disability more nearly approximates a 70 percent disability rating throughout the appeal period. This rating is supported by the Veteran's statements describing the functional impact of his symptoms, including his descriptions of suicidal ideations during the period on appeal. However, a 100 percent disability rating is not warranted. A rating of 100 percent, the next level at which the Veteran could receive benefits, requires a showing that the Veteran suffered from total occupational and social impairment. In this case, the symptoms described during this time period did not rise to a level that would warrant a rating of 100 percent. The Veteran did report feelings of detachment and estrangement from others, persistent sleep problems, symptoms of irritability or outbursts of anger, difficulty concentrating, and suicidal ideation, but these symptoms did not manifest to a degree of severity comparable to symptoms that would necessitate a rating of 100 percent. The Veteran did not display symptoms akin to gross impairment in thought processes or communication, persistent delusions or hallucinations, gross inappropriate behavior, persistent danger of hurting oneself or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, occupation, or his own name. See Mauerhan, 16 Vet. App. at 436. Moreover, the evidence of record indicates that the Veteran enjoys hobbies, such as fishing and hunting. As such, the Board finds that the evidence of record supports a disability rating of no more than 70 percent during the period on appeal. ORDER A rating of 70 percent for PTSD is granted for the entire period on appeal, subject to the laws governing monetary benefits. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs