Citation Nr: 1804130 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-06 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active duty service from February 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which assigned a 10 percent rating effective July 21, 2010. The Veteran submitted a notice of disagreement in June 2011. In January 2014, the RO assigned an increased rating of 30 percent, effective July 21, 2010. But see AB v. Brown, 6 Vet. App. 35 (1993). The Veteran thereafter submitted his substantive appeal in February 2014. In July 2014, the Veteran testified at a hearing via videoconference before the undersigned. A transcript is associated with the claims file. This matter was most recently before the Board in June 2015, at which time it was remanded for further development of the record. FINDINGS OF FACT For the entire initial rating period on appeal, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, and mood; total social and occupational impairment has not been shown. CONCLUSION OF LAW For the entire initial rating period on appeal, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran's PTSD claim arises from the Veteran's disagreement with the initial evaluations assigned after the grant of service connection. The courts have held that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The Veteran's service treatment records, VA treatment records, the Board hearing transcript, and the Veteran's statements have been associated with the claims file. Further, the Veteran was afforded VA examinations in connection with his claim in August 2010 and September 2015. 38 C.F.R. § 3.159 (c)(4) (2017). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; fully addresses the relevant rating criteria; and contain a discussion of the effects of the Veteran's disabilities on his occupational and daily activities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). Further, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings - Applicable Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations is to 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 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected PTSD currently is evaluated as 30 percent disabling, effective July 21, 2010, under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (PTSD). See 38 C.F.R. § 4.130, DC 9411 (2017). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is warranted when the disorder is manifested by 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). 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent disability rating is warranted where the disorder is manifested by 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, or for the veteran's own occupation or name. Id. Ratings of psychiatric disabilities shall be assigned 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. Further, ratings are assigned according to the manifestation of particular symptoms. However, the various symptoms listed after the terms "occupational and social impairment with deficiencies in most areas" and "total occupational and social impairment" in 38 C.F.R. § 4.130 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). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated 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." It was further noted that § 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." See also Bankhead v. Shulkin, No. 15-2404 (Vet. App., Mar. 27, 2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). The United States Court of Appeals for Veterans Claims (Court) has held that Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Id. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual Background The pertinent evidence of record consists of VA mental health treatment records dated from 2009 to 2015, VA examinations conducted in August 2010 and September 2015, and statements and hearing testimony from the Veteran in support of his claim. VA treatment records dated in 2009 reflect that the Veteran retired from the Postal Service 3 years prior and that he was enjoying retirement. He endorsed poor concentration at times, and suicidal ideation (thoughts of shooting himself, has 7 to 8 guns, all unloaded). He reported having a close relationship with his family. He enjoyed golf, walking, and woodworking. VA treatment records from 2010 reflect ongoing mental health treatment. Symptoms included nightly nightmares, worsening sleep, intrusive thoughts, down/depressed mood, low motivation, and passive suicidal ideation (no intent or plan). He stopped playing golf in November 2010. He stated that he would not hurt himself because there would be no one to care for his mother. Mental status examinations revealed depressed mood, no hallucinations, and he denied suicidal ideation. GAF scores were 41. The Veteran underwent a VA PTSD examination in August 2010. At that time, psychiatric symptoms included recurrent flashbacks, memories, and dreams of a duration of minutes to hours and sometimes all night with a severity of impairment in his sleep patterns. Occupationally, he was retired and able to maintain appropriate structure without difficulty at work, and personally, he was a loner but did engage with others on a superficial level. He reported getting together with his family on a regular basis. The Veteran stated that he found his work very helpful and enjoyed the curiosity of interacting with others. He did not lose any work time as a result of his impairment. Activities included playing golf. Objectively, he was casually dressed, neat, and oriented with euthymic mood, logical and linear thought processes, intact judgment, and no hallucinations/delusions. He denied suicidal intention or plan, but noted that the had had suicidal ideation at times. The examiner stated that although the Veteran was retired, he was not impaired in work functioning and showed appropriate capacity for adjustment by use of a structured process. There was persistent avoidance, numbing, and avoidance of conversations about his experiences. He did not have diminished interest in significant activities. There was a sense of detachment and estrangement from others in a trusting relationship, other than those in his family. He did not have a restricted range of affect. He occasionally had a sense of loss of control, but avoided angry outbursts. Hypervigilance was present. A GAF score of 65 was assigned, with notation of the effects on his interpersonal effects in terms of inability to engage in successful dating/marriage. VA treatment records dated in 2011 reflect that the Veteran endorsed worsening depression, hopelessness, isolation, crying spells, intrusive thoughts, nightmares, intermittent flashbacks, sleep disturbance, passive suicidal ideation without plan or intent, and GAF scores of 41. Current leisure activities included golf and reading. VA treatment records dated in 2012 reflect that the Veteran continued to endorse occasional passive suicidal ideation (no plan or intent), occasional auditory/visual hallucinations associated with flashbacks, nightmares, hypervigilance, and GAF scores of 41. VA treatment records dated in 2013 reflect that the Veteran continued to endorse severe dreams/nightmares, significant sleep disturbance, occasional intrusive thoughts, decreased interest in activities (unable to do much due to knee problem), occasional passive suicidal ideation, a "few" auditory/visual hallucinations, occasional difficulty concentrating, and GAF scores of 41. The Veteran reported that he had a fellow Veteran that he was able to confide in; he was no longer able to golf due to knee problems but did engage in activities around his workshop. The Veteran testified before the undersigned VLJ in July 2014; he endorsed suicidal ideation at least once a month. He also stated that he recently had a bad nightmare and woke up to find himself shooting at the wall. He indicated that this was an isolated incident. He stated that he had one good friend. He reported that he engaged in some woodworking as a hobby/activity. VA treatment records dated in 2014 and 2015 reflect that the Veteran continued to endorse chronic intermittent passive suicidal ideation (no plan or intent), increased irritability/outbursts, chronic insomnia/sleep disturbance, intrusive thoughts, loss of interest, worsening nightmares, decreased interest in activities, constricted affect, and GAF scores of 41. He reported positive therapeutic relationships, motivation in treatment, and good social/family supports. In a September 2015 mental health treatment record, the Veteran reported waking up amid a nightmare and shooting his firearm, which he had never done before. The Veteran underwent a VA PTSD examination in September 2015. The Veteran's level of social and occupational impairment was described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran lived alone; he was close to his siblings. He retired in May 2007 from the Postal Service after working there for 35 years. The Veteran was currently in mental health treatment currently and prescribed risperidone and sertraline. Sleep was interrupted by nightmares. He stated that he gets together with a group of Vietnam Veterans every other week to eat lunch and talk. He reported that he enjoys woodworking and reading. He experienced a significant amount of sadness but generally kept a facade of being stern or joking around. Symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances in motivation/mood. Objectively, the Veteran was a casually-dressed, well-groomed individual. Speech was within normal limits with regard to rate and rhythm. The Veteran's mood was anxious and dysphoric. Affect was appropriate to content. The Veteran's thought processes and associations were logical and tight with no loosening of associations or confusion noted. The Veteran was oriented in all spheres. There was no evidence of delusions or hallucinations. Suicidal and homicidal ideations were denied. The examiner noted that symptoms had increased since last C & P examination, particularly frequency and intensity of nightmares. Analysis The Veteran contends that the currently assigned 30 percent disability evaluation does not adequately contemplate the severity of his current psychiatric symptomatology. During his Board hearing and in other statements of record, the Veteran asserted that he is entitled to a higher rating based on consistent GAF scores of 41, suicidal ideation, neglect of personal hygiene, nightmares, sleeping one to two hours per night, an inability to develop a personal relationship, weekly mental health treatment and other psychiatric symptomatology. See Board Hearing Transcript and June 2011 Statement from Veteran. Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's PTSD more nearly approximates a 70 percent disability rating (i.e., occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood) for the entire rating period on appeal. Indeed, collectively, the VA mental health treatment records dated from 2009 to 2015, the 2010 and 2015 VA examination reports, and the Veteran's competent statements and hearing testimony show that the service-connected PTSD has been manifested by chronic, intermittent suicidal ideation; near-constant depression; chronic insomnia and nightmares; occasional auditory/visual hallucinations associated with flashbacks; occasional neglect of personal appearance and hygiene; an inability to establish and maintain effective relationships; anxiety; frequent intrusive thoughts; social isolation; mild memory loss; and one documented incident of violence (i.e., shooting at the wall after waking from a nightmare). Additionally, the Veteran's GAF score has been 41 throughout the appeal period; this likewise reflects some serious symptomatology. Although the entire record is not without a measure of ambiguity, the Board concludes that the totality of the evidence outlined above appears to be at least in approximate balance. It is the conclusion of the Board that the Veteran's overall disability picture indicates that a 70 percent evaluation, but no higher, should be assigned for PTSD from the date the Veteran submitted his claim. 38 C.F.R. § 4.7 (2017). Hence, to this extent the Veteran's claim is granted. It is also concluded, however, that the evidence does not support an evaluation in excess of 70 percent. The Veteran's PTSD alone is not productive of total occupational and social impairment. The Veteran does not have gross impairment in thought processes or communication. In addition, no deficits have been noted with respect to the Veteran's speech and communication skills. The Veteran's behavior is not grossly inappropriate. He is oriented to time and place and he is able to perform activities of daily living, including maintenance of minimal personal hygiene. The Board acknowledges that the Veteran experiences occasional auditory or visual hallucinations in association with his flashbacks, and, on one occasion, he shot the wall with his gun during a nightmare. However, the frequency, severity, and duration of such symptoms does not rise to the level of "persistent" hallucinations and/or "persistent" danger of hurting self or others as contemplated by the 100 percent rating criteria. Indeed, VA mental health treatment records document only occasional (or a "few") auditory/visual hallucinations, while the incident involving the gun was an isolated, one-time event. Moreover, although the Veteran avoids crowds and does not leave the house at times, he does have a few friends and remains very close with his family members. He also engages in woodworking and reading activities. With respect to occupational impairment, the record reflects that the Veteran retired from the Postal Service after 35 years of employment. He reported that when he was working, he enjoyed interacting with others and missed no time from work as a result of his PTSD. The VA examiner noted that, although the Veteran was retired, he was not impaired in work functioning and showed appropriate capacity for adjustment by use of a structured process. Notably, none of the various health care providers who have provided treatment to the Veteran or who have examined him in conjunction with this claim have concluded that he has total occupational and social impairment due to PTSD. For these reasons, the Board finds that the evidence of record does not demonstrate total social impairment and do not more nearly approximate the symptoms contemplate under the 100 percent rating criteria. Accordingly, a 70 percent rating for PTSD, but no higher, is warranted for the entire initial rating period on appeal. As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), it was held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such is raised by the record. As noted above, although occupational impairment is part of the Veteran's service-connected PTSD disability, he has repeatedly indicated that he retired from his last employment and has not indicated that he cannot obtain and maintain substantially gainful employment because of his service-connected disability. Accordingly, a TDIU claim has not been raised, and no action pursuant to Rice is necessary. ORDER For the entire initial rating period, a 70 percent rating for PTSD is granted, subject to regulations governing the payment of monetary awards ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs