Citation Nr: 1804463	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  14-14 510	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) with depression.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Rothstein, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1971 to January 1973, to include service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, in which the RO granted service connection for PTSD with depression and assigned an initial 50 percent rating effective December 23, 2009 (the identified date of claim).  Jurisdiction over this case was subsequently transferred to the RO in Oakland, California.  The Veteran timely appealed the initial rating assigned.

In a March 2014 rating decision, the RO awarded a higher, initial 70 percent rating for the Veteran's service-connected PTSD, also effective December 23, 2009.  However, as that award did not constitute a complete grant of the benefit sought on appeal, the claim for a higher initial rating for PTSD remains in appellate status.  See AB v. Brown, 6 Vet. App. 35, 38-9 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise).


FINDING OF FACT

The symptoms and overall impairment caused by the Veteran's PTSD have not more nearly approximated total occupational and social impairment.


CONCLUSION OF LAW

The criteria for an initial rating higher than 70 percent for the Veteran's PTSD have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  The requirements of 38 U.S.C. §§ 5103 and 5103A have been met in this case.  As mentioned above, the claim on appeal arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection for his PTSD.  The courts have held, and VA's General Counsel has agreed, that where, as here, an underlying claim for service connection has been granted and there is disagreement as to a "downstream" question, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007).

Additionally, VA assisted the Veteran in obtaining identified and available evidence needed to substantiate the claim on appeal and affording him multiple VA examinations, the reports of which are of record.  As indicated by the discussion below, these examination reports, along with the other lay and medical evidence of record, contain sufficient evidence by which to evaluate the Veteran's service-connected PTSD in the context of the pertinent regulations.  There is no evidence that additional relevant records have yet to be requested or that additional examinations are in order.  

The Board will therefore proceed to the merits of the claim.

II. Higher Initial Rating

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where, as here, an award of service connection for disability has been granted and the assignment of an initial evaluation for this disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Fenderson v. West, 12 Vet. App. 119 (1999).  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.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's PTSD is currently evaluated as 70 percent disabling under 38 C.F.R. § 4.130, DC 9411.  All acquired psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders.  

Under this general rating formula, a 70 percent rating is warranted for 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 an 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); inability to establish and maintain effective relationships.

A total schedular rating of 100 percent is warranted for 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; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, DC 9411.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment.  Vazquez-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; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that 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.  Vazquez-Claudio, 713 F.3d at 118.  The Court recently reiterated, "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment."  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).

The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)).  A score of 51-60 indicates 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 peer or coworkers).  A score of 41-50 indicates 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).  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).

Turning to the relevant evidence of record, in a January 2008 letter, the Veteran's private doctor, Dr. F., stated that the Veteran complained of having flashbacks about a traumatic event, feelings of detachments, nightmares, sleep disturbances, impaired functioning and memory disturbances, and diagnosed the Veteran with PTSD.  She also stated that the Veteran's PTSD continued to "significantly disrupt normal activities and quality of life" for the Veteran.  

During VA mental health clinic visits from March 2008 to September 2009, the Veteran reported having the following symptoms: problems sleeping; nightmares; intrusive thoughts about Vietnam; inability to have loving feelings; anxiety; irritability; avoidance of talking about Vietnam and crowds; hypervigilance; loss of interest in hobbies; flashbacks; being easily startled; and depression.  Also, the following was noted about the Veteran: that he had good hygiene; that he was dressed appropriately with no signs of neglect; that he was groomed appropriately; that he was alert and oriented to person, place, and time; that his speech was normal and coherent; that his insight and judgment were fair; that there was no evidence of thought disorder; that his thoughts were organized; that his thought process was rational and linear with no loose association; and that he was not a danger to self or others.  In addition, the Veteran denied having homicidal ideation and hallucinations.  Other than reporting having suicidal ideation without any intent during a March 2008 visit, the Veteran otherwise denied having current suicidal thoughts during visits in April 2008, September 2008, November 2008, April 2009, and September 2009.  During the March 2008 visit, the Veteran denied having a history of suicide attempts, he reported working full-time as an equipment operator, and he was assigned a GAF score of 55.  During the November 2008 visit, the Veteran reported that his relationship with his daughter and grandchildren had been good.

In an October 2009 letter, the Veteran's private doctor, Dr. C., stated that the Veteran had difficulties with crowds and could not focus.  He also stated that the Veteran should be dismissed from jury duty.

In January 2010, the Veteran underwent a private evaluation with Dr. G. for his PTSD.  At that evaluation, the Veteran reported having the following current symptoms: sleep impairment, anxiety, marked diminished interest in his previous activities, no motivation to do anything, avoidance of social situations, feelings of detachment and estrangement, irritability, and occasional difficulty with concentration.  He also reported that he no longer saw his friends as much.  He also reported that he found it difficult to get close to family, and that in the past he would join them watching television in the evening, but that he now spent more time alone in his bedroom.  He also reported that at work he tended to keep himself busy rather than spending time with his fellow co-workers.  His partner, who attended part of the evaluations, indicated that, at present, the Veteran could be very nasty and short-tempered.  Dr. G. noted that on the Beck Depression Inventory (Revised) scale, the Veteran's score was 19.  Dr. G. noted that a score from 19 to 29 indicated moderate to severe depression.

Also in January 2010, during an appointment with the VA mental health clinic, the Veteran reported that he had Christmas with his daughter and her family.  He also reported having problems sleeping (sleeping for four hours then tossing and turning until it was time to get up) and nightmares.  He denied having current suicidal or homicidal thoughts.  It was noted that the Veteran was agoraphobic and did not do well around crowds.  On examination, the attending VA mental health professional noted the following about the Veteran: that he was dressed and groomed satisfactorily; that he was alert and oriented to person, place, and time; that his speech was appropriate; that his mood was quiet/depressed; that his affect was flat; that cognition was within normal limits; and that he denied having thoughts of self-harm or harm to others.  The Veteran was assigned a GAF score of 55.

In February 2010, the Veteran underwent a VA PTSD examination.  At that examination, he reported having the following symptoms: problems with sleep (difficulty falling asleep and staying asleep), nightmares (several nights a week about Vietnam that were very intrusive and kept him awake), flashbacks back to Vietnam, strong startle response to loud noises, avoidance of crowds and people, hypervigilance, panic attacks, feelings of helplessness, suicidal ideation with no plans, problems with memory and concentration (difficulty focusing his attention and having to write things down on a daily basis so that he would not forget them), difficulty focusing his attention, anger and irritability, depression, and anxiety.  In addition, he reported that he worked part-time as a truck driver, and that he worked alone because of his PTSD (specifically anger and irritability, and difficulty getting along with bosses, supervisors, and fellow workers).  He reported no history of missing any time from work.  He also reported that he had been married and divorced twice due to PTSD (specifically anger and irritability, and having frequent arguments and disagreements), and that he had two children (an adult son and an adult daughter).  He reported that he took turns living with either his son or daughter.  He also reported that he was not dating, had no relationships, and had no girlfriend.  He reported that he had been single for six years and pretty much socially isolated.

On examination, the VA examiner noted the following about the Veteran: that he was neatly and casually dressed; that his affect was controlled and appropriate; that his immediate and remote memory were intact; that there was no indication of hallucinations or delusions; that he was alert and oriented to person, place, and time; that his speech was normal in rate, rhythm, and volume; that there was no evidence of psychotic or delusional processes; that his thoughts were clear, logical, goal-directed, and linear; that his mood and affect were sad and depressed; that his insight and judgment appeared to be within normal limits; that there were no gross cognitive deficits noted; that attention and concentration were intact; and that no bizarre or unusual behaviors were observed.  The VA examiner stated that the Veteran experienced significant occupational and social impairment due to his PTSD symptoms.  In this regard, the VA examiner noted that the Veteran's PTSD symptoms decreased his work efficiency and his ability to perform occupational tasks.  The VA examiner also noted that the Veteran had difficulty establishing and maintaining intimate social relationships, and that his PTSD symptoms had caused him to be socially impaired.  The VA examiner assigned the Veteran a current GAF score of 43 and a past year GAF score of 49.

In August 2016, the Veteran underwent a VA contracted PTSD examination.  At that examination, he denied having current suicidal ideation, plan, intent or history of attempts.  He also denied homicidal ideation, plan or intent.  He reported that he currently resided with his wife, his third marriage, and that his relationship with her was "good."  He also reported that he had two adult children, and that he saw both of them.  He also reported that he had nine siblings, two of whom were deceased, and that he had a "good relationship" with his siblings.  He also reported that he currently worked for the state as a truck driver, and had worked the job for 15 to 16 years.  

On examination, the VA examiner noted that the Veteran's hygiene was appropriate.  The VA examiner found that the Veteran had the following PTSD symptoms: anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships.  The VA examiner noted that on the Beck Depression Inventory, the Veteran obtained a total score of 31, placing him in the severe range for symptoms of clinical depression.  The VA examiner also noted that on the Beck Anxiety Inventory, the Veteran obtained a total score of 34, placing him in the severe range for symptoms of clinical anxiety.  The VA examiner found that the Veteran experienced 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.  

Based on the foregoing, the Board finds that the Veteran is not entitled to a higher, 100 percent rating for any portion of the appeal period.  The evidence of record shows that the Veteran did not experience any of the following symptoms or their equivalent: 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; or memory loss for names of close relatives, own occupation, or own name.  In fact, the examination reports and treatment records indicate that the Veteran consistently had normal thought processes and speech, had no delusions or hallucinations, was oriented to time and place, had appropriate hygiene, denied homicidal ideation, and that there was no inappropriate behavior observed.  In addition, although the Veteran indicated during a March 2008 VA mental health clinic visit and at the February 2010 VA examination that he had suicidal ideation, he also indicated at those times that he had no intent/plans or history of attempting suicide.  Further, during the appeal period, he otherwise consistently denied having any current suicidal ideation and was noted to not be a danger to himself or others.  As such, although the Veteran experienced suicidal ideation, there has been no indication that he was in persistent danger of hurting himself or others, or that the symptoms more nearly approximated this symptom listed in the criteria for a 100 percent rating.  The Board notes that in Bankhead, the Court criticized the manner in which the Board addressed suicidal ideation with regard to meeting the criteria for a 70 percent rating, but acknowledged the validity of considering the Veteran's risk of self-harm in determining whether the criteria for a 100 percent rating are met or more nearly approximated.  Id. at 22 ("This is not to say that the Board was absolutely prohibited from considering Mr. Bankhead's risk of self-harm in assessing his level of occupational and social impairment").

Moreover, although the Veteran indicated at various times during the appeal period that he experienced memory problems, such problems have been described as mild memory loss (such as forgetting names, directions or recent events) and as having to write things down on a daily basis so that he would not forget them.  There has been no indication that he had memory loss of names of close relatives, own occupation, or own name, or that the symptoms more nearly approximated this symptom listed in the criteria for a 100 percent rating.

In addition, the evidence of record shows that the symptoms and impairment did not more nearly approximate the total social and occupational impairment in the criteria for a 100 percent rating.  In this regard, the examination reports and treatment records reveal the following: that the Veteran is currently married, and that he has a good relationship with his wife; that he has had a good relationship with his daughter and grandchildren; that he has taken turns living with his son and daughter; that he has a good relationship with his siblings; and that he had a partner in January 2010.  Although the Veteran reported in January 2010 that he no longer saw his friends as much and that he found it difficult to get close to his family, in so reporting, he indicated that he did have friends and that relationships with his family did exist.  The Veteran has also indicated that he has been working throughout the appeal period.  Furthermore, the GAF scores have been between 43 and 55, which, although not dispositive, are consistent with the degree of impairment reflected by a 70 rather than 100 percent rating.

The preponderance of the evidence thus reflects that the Veteran had neither the symptoms nor overall level of impairment that more nearly approximated the total occupational and social impairment required for a 100 percent rating during the appeal period.  The benefit of the doubt doctrine is therefore not for application in this regard.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Related factors include "marked interference with employment" and "frequent periods of hospitalization."  If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted.  38 C.F.R. § 3.321(b)(1) (2017).

As indicated by the cases cited above, the criteria in the General Rating Formula for Mental Disorders include both the symptoms listed as symptoms "such as" those listed, along with the overall impairment caused by these symptoms.  This broad language in the criteria thus contemplates all of the symptoms even though they are not specifically listed.  Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required.  Accordingly, remand for referral of the claim for a higher initial rating for PTSD for extraschedular consideration is not warranted.  38 C.F.R. § 3.321(b)(1).

For the foregoing reasons, an initial rating higher than 70 percent for the Veteran's PTSD is not warranted, and the claim must be denied.

Finally, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the record as part of the Veteran's higher initial rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (the issue of entitlement to TDIU is part of a higher rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits").  Here, the evidence of record, including the Veteran's own statements, does not indicate that his PTSD has precluded the Veteran from securing and following substantially gainful employment.  On the contrary, the examination reports and treatment records demonstrate that the Veteran has worked throughout the appeal period and has reported no history of missing any time from work.  Although the Veteran reported that he was working part-time in February 2010, there is no indication that such employment was marginal.  See 38 C.F.R. § 4.16 (a).  The issue of entitlement to a TDIU has therefore not been raised.

ORDER

Entitlement to an initial rating higher than 70 percent for PTSD with depression is denied.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs