Citation Nr: 1804395 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-15 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to February 21, 2013, for posttraumatic stress disorder, and in excess of 70 percent thereafter. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1967 to February 1970 and was awarded the Bronze Star Medal for combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the appeal, jurisdiction transferred to the RO in Oakland, California. The Board remanded the claim in October 2014, September 2015 and May 2017 for additional development. FINDING OF FACT Throughout the period at issue the Veteran's posttraumatic stress disorder is best assessed as manifested by occupational and social impairment with deficiencies in most areas including work, family relationships, judgment and mood due to symptoms such as anxiety, impaired judgment, disturbances of motivation and mood, sleep difficulty, memory impairment, difficulty adapting to stressful circumstances, an inability to establish and maintain effective relationships, strong startle response and trouble focusing his attention, but not by total occupational and social impairment. CONCLUSIONS OF LAW Prior to February 21, 2013 and thereafter throughout the period of the appeal, posttraumatic stress disorder was 70 percent disabling, but not higher. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). 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). II. Initial Rating i. Applicable Law Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. This Diagnostic Code provides that PTSD should be rated under the general rating formula for evaluating psychiatric disabilities other than eating disorders. Under the general formula, a 30 percent rating is warranted for occupational and social impairment with an 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 a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is assigned 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 and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013) 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." Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that 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 provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated "DSM-5." As the Veteran's claim was certified to the Board prior to August 4, 2014, the DSM-5 is not applicable to this case. However, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran has already been assigned staged ratings for PTSD. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. ii. Facts and Findings The Board previously remanded this case in order to obtain additional medical records. The Veteran did not respond to the request to release such records, so the Board has made a decision on the evidence of record. Upon review of the evidence of record, the Board finds that a 70 percent rating for PTSD, but not higher, is warranted throughout the period on appeal. The Veteran has been incarcerated for approximately 35 years and did not undergo a VA examination related to this claim until February 2013. The initial rating of 10 percent, effective May 29, 2008, was based on the evidence of record at the time, including medical records. The Veteran disagreed with the 10 percent evaluation, stating that the May 2009 rating decision made no mention of his "continued overly startled response, hostility towards authority, requirement to be left alone, no lasting relationships, inability to function with coworkers and my inability to hold down gainful employment." See May 2009 Notice of Disagreement. Similarly, in a March 2015 letter, the Veteran stated he believed the May 2009 decision ignored relevant facts. In a March 2010 Statement of the Case, the RO stated the Veteran's contentions are moot because he is incarcerated. The RO was incorrect. Although an incarcerated veteran's compensation is subject to being reduced after their disability is properly rated, an incarcerated veteran is entitled to the same consideration as non-incarcerated veterans. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In May 2008 statements in support of his claim, the Veteran stated that he constantly relives a scene from Vietnam in his mind and, because of his time in Vietnam, that "to this day I feel I will die if I let my guard down on any level". Medical records from 2008 reflect poor sleep, nightmares, flashbacks to Vietnam and general anxiousness by the Veteran, particularly in crowds and noisy places. The Veteran worked in the prison yard at this time and was provided medication to help with his anxiety. The Veteran's symptoms in 2008 are relevantly consistent throughout the period at issue. For example, in August 2011 the Veteran reported that his trauma related nightmares continued, but were less intense when he was able to get his medication. He again reported anxiety in large crowds. He had a GAF score of 60. In September 2012, he was worried about losing the garbage/yard job that took him fifteen years to obtain. The clinician found the Veteran was doing "a very good job keeping himself together considering his PTSD and his vulnerability to change and flux." The Veteran was found to be psychologically stable, but struggling to maintain hope. See September 14, 2012 progress note. Also in September 2012, the Veteran requested to switch his medication to the night time, and was willing to take the tradeoff of more anxiety-provoking situations during the day in order to get better sleep. Also throughout this time, clinicians found it was medically necessary for the Veteran to receive mental health treatment. See March 6, 2008 and May 21, 2013 treatment records. In 2013, the Veteran was less cooperative with treatment and was recommended for transfer to a mental health facility, but this time the Veteran declined. After a due process hearing, the Veteran was permitted to stay where he was at. The due process hearing decision noted the Veteran recently went on a hunger strike with the intent to die, but that a current evaluation shows he is more clinically stable than observed in July 2013, that he is no longer stating he is suicidal and that he "wants to go to mainline where he will be able to engage in his art and connection with the community." See August 2013 due Process Hearing Decision; but see September - December 2013 notes (Veteran's suicidal ideation continued). The hearing officer, Dr. G.H., also noted the Veteran "is a relatively high functioning individual whose resourcefulness has allotted him connections in the community where he expresses himself through art." A review of the record reveals the main difference between May 2008 and more recent records is that the Veteran resumed having suicidal ideation in 2013, which he had not expressed since February 2008. Such a conclusion is supported by the two VA examinations of record and the Veteran's own words. In a February 2013 VA examination report, the examiner noted the Veteran had been incarcerated for 30 years and found the Veteran's symptoms have gotten worse. The Veteran's symptoms included depressed mood, anxiety, sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, strong startle response and trouble focusing his attention. Suicidal ideation was not noted as a symptom. The Veteran reported worked as a carpenter prior to his incarceration and that he preferred to work alone because of his PTSD issues of anger and irritability. The examiner opined the Veteran has occupational and social impairment with deficiencies in most areas, but did not provide a rationale in the Remarks section of the report beyond the Veteran's symptoms have worsened over time and the Veteran has been incarcerated for 30 years. In the March 2015 letter noted above, the Veteran contends the 2013 examiner didn't ask comprehensive questions that might have brought detail and clarity to his case, "such as how long I have been suffering like I was", and instead cut the interview off short. The Veteran also stated he "feels little has changed" between the May 2008 rating decision and the February 2013 examination. Upon VA examination in October 2016, the Veteran revealed similar symptoms to that found in the 2013 VA examination report, including panic attacks more than once a week. The Veteran denied suicidal ideation. The examiner opined that the Veteran's current PTSD presentation does not reflect total social and occupational impairment. "However, based on a thorough review of the records, this writer opines that the frequency, severity, and duration of the Veteran's PTSD symptoms have remained largely consistent since his initial diagnosis in March 2008 and have continued to result in occupational and social impairments with deficiencies in most areas of his life." In further support of her opinion, the examiner stated "the Veteran's PTSD symptoms appear to have been significantly impairing since his initial service connection was granted effective 5/29/2008 as he has been categorized as a Correctional Clinical Case Management System (CCCMS) inmate at the CA Department of Corrections since that time and has received ongoing mental health services for PTSD, group therapy, and psychotropic medication to manage PTSD symptoms. Despite treatment and medication, his PTSD symptoms have persistent (sic) at a consistent level of severity since his initial PTSD diagnosis in March 2008. " The Boards notes the October 2016 examination report reflects a very thorough review and consideration of the Veteran's mental health history and this claim's history prior to and during the entire period of the appeal. The Board also notes that there is evidence against a finding of a 70 percent rating prior to February 21, 2013 and in excess of 70 percent thereafter. A March 2008 mental health evaluation of the Veteran revealed no more than mild functional limitation. The February 2013 examination may reflect an increase in symptomology rather than a continuation of symptoms since May 2008, as the Veteran had suicidal ideation and a hunger strike with the intent to die shortly thereafter. Furthermore, the examiner stated the Veteran's symptoms have worsened, although the examiner did not specify since when. Additionally, there are no medical records from the State of California beyond December 2013. In light of the above, there is evidence for and against a rating of 70 percent prior to February 21, 2013. However, the Board gives substantial weight to the 2016 examiner's report as the examiner thoroughly reviewed and discussed the evidence of record and provided a detailed rationale for her opinion which supports a 70 percent rating throughout the period on appeal. Accordingly, and resolving doubt in favor of the Veteran, a 70 percent rating is warranted throughout the period on appeal. In giving the 2016 examiner's opinion substantial weight and considering other evidence of record, including the Veteran's history of working while in prison, his ability to communicate with treatment providers and his ability to maintain contacts with the community, including during times of suicidal ideation, the Board finds the Veteran does not have total occupational and social impairment and that the Veteran's symptomatology more nearly approximates a 70 percent rating. Therefore a 100 percent rating is not warranted at any point during the period at issue. See 38 C.F.R. § 4.130(2017); see also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (addressing types of suicidal ideation and the need to differentiate between ideation and risk of self-harm). ORDER Entitlement to a disability rating of 70 percent, but not higher, prior to February 21, 2013 and thereafter throughout the period of the appeal, for posttraumatic stress disorder is granted. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs