Citation Nr: 1804595 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-17 805 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 2006 to January 2011. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a December 2011 rating decision, by the Lincoln, Nebraska, Regional Office (RO), which granted service connection for PTSD and assigned a 10 percent disability rating, effective January 25, 2011. The Veteran perfected a timely appeal of the rating assigned. By a rating action in January 2012, the RO confirmed the 10 percent rating for the Veteran's PTSD. In March 2014, the Veteran testified at a hearing before a Veterans Law Judge, sitting at the RO. A transcript of that hearing is of record. In June 2016, the Board increased the rating for the Veteran's PTSD, and remanded the case to the RO for further evidentiary development. A rating decision, dated in June 2016, implemented the Board's decision and assigned a 30 percent rating for PTSD, effective January 25, 2011. That, however, was not the highest possible rating, so the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). A supplemental statement of the case (SSOC) was issued in December 2016. In June 2017, the Veteran was notified that the Veterans Law Judge (VLJ) who presided over his March 2014 hearing is no longer employed by the Board, and he was given an opportunity to request a new hearing before a sitting VLJ pursuant to 38 C.F.R. § 20.707 (2017). In July 2017, VA received the Veteran's response that he did not wish to appear at a new hearing, and for the Board to consider his case on the evidence of record. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by ongoing symptoms of depression, sleep impairment marked by recurring nightmares, anxiety, irritability, hypervigilance, and social isolation; his psychiatric symptoms result in disability no worse than that causing occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran's PTSD does not cause occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring more frequently than once per week; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; impaired abstract thinking; difficulty in establishing effective work and social relationships, or symptoms of like kind. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background & Analysis-I/R PTSD. The Veteran essentially contends that his service-connected PTSD is more disabling than reflected by the currently assigned ratings. At his personal hearing in March 2014, the Veteran maintained that he had problems with social interactions; he noted that the November 2011 examiner downplayed his family issues. He also reported difficulty getting along with others, which also causes problems with employment. The Veteran testified that he continued to have problems with being hypervigilant, which caused him to have problems being in crowds. The Veteran indicated that his panic attacks occur maybe once a month. The Veteran reported occasional depression. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD has been assigned a 30 percent rating under Diagnostic Code 9411, 38 C.F.R. § 4.130 (2017). Under that code, a 30 percent evaluation is warranted 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 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 rating of 50 percent is assigned where the claimant exhibits 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-term or 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 rating of 70 percent is assigned where the claimant exhibits 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 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); inability to establish and maintain successful relationships. A rating of 100 percent is assigned where the claimant exhibits 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation 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. Id. The rating agency shall also consider the extent of social impairment, but not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). For purposes of considering the evidence in connection with the PTSD issue, the Board notes that the Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV") (100 representing superior functioning in a wide range of activities and no psychiatric symptoms). See also 38 C.F.R. §§ 4.125, 4.126, 4.130. In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to "DSM-IV," AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated "DSM-5," and examinations conducted pursuant to the DSM-5 do not include GAF scores. A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF of 61-70 denotes 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, has some meaningful interpersonal relationships. 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. In the April 2017 Appellant's Brief, the Veteran, through his representative, contended that his military sexual trauma (MST) was not considered in the evaluation of his service-connected PTSD. As stated above, VA regulations require adjudicators to evaluate PTSD based on the symptoms and the impact of the symptoms on occupational and social functioning. Historically, the Veteran's initial claim for service connection for PTSD was received in October 2011. In a statement in support of claim (VA Form 21-4138), dated in October 2011, the Veteran indicated that he was seeking to establish service connection for PTSD due to MST. In conjunction with his claim, the Veteran was afforded a VA examination in November 2011, at which time he reported being in Basra which was hit in late 2007 to mid-2008; he noted that they were hit heavily by rockets mortars and other rounds coming through the fence line. The Veteran indicated that two mortars hit right next to him. The Veteran also reported being on a recovery team where a Chinook went down and all Army National Guards were killed; he stated that this was a horrible site to see with the crash site .The Veteran related that their main mission was flight recovery to figure out what happened and to bag up the bodies or body parts etc. The examiner noted that the Veteran feared and was horrified from the hostile enemy or terrorist activity. The examiner noted that Veteran's symptom reporting is consistent with PTSD (by DSM-IV) criteria that is related to his fear of hostile enemy or terrorist activity. The diagnosis was PTSD, and he was assigned a GAF score of 60. The examiner stated that the Veteran's PTSD resulted in 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. Submitted in support of the Veteran's claim was a statement of stressors, dated in December 2011, wherein he reported that, during a support mission in Basra, Iraq, the enemy had set up camp outside their base and they were constantly struck with rockets and mortar. The Veteran also reported that, in August 2010, he and his buddy allowed someone to stay with them and he awoke to find that the man was sexually assaulting him. The Veteran indicated that he never reported the incident for fear of being punished. Also submitted in support of the Veteran's claim were VA progress notes dated from May 2011 to November 2016, which show that the Veteran received ongoing clinical evaluation and treatment for chronic PTSD; he received counseling for his PTSD symptoms. A treatment note, dated in May 2011, indicates that the Veteran presented with symptoms consistent with MST and other combat PTSD from OEF/OIF experiences in Iraq and other stressors. It was reported that the Veteran had Variable Moderate to Excessive symptoms, including nightmares, occasional disturbing memories, avoiding stimuli, flashbacks, hypervigilance, startling easily, and perimeter securing. The assessment was PTSD due to MST & combat, anxiety NOS and depression NOS. When seen in August 2016, the Veteran reported that he does have PTSD from combat, but did not remember his nightmares. The Veteran was afforded another DBQ examination in November 2016. At that time, it was noted that the Veteran's most recent involvement with mental health intervention was in November 2013. The Veteran indicated that he was no longer taking Doxepin. The Veteran also reported that he was no longer taking psychiatric medication nor had any involvement with non-VA mental health nor was there intervention through Vet Center. The Veteran indicated that had a group of colleagues that are Veterans that he plays video games on line, and he worked out three times per week with his wife. The Veteran denied any therapy with non-VA mental health or with Vet. Center. The examiner noted that the Veteran's PTSD was manifested by depressed mood, anxiety and chronic sleep impairment. The examiner stated that the Veteran's PTSD would result in social and occupational impairment with intermittent periods of inability to perform occupational tasks with associated decrease in work efficiency. After a careful review of the evidence of record the Board finds that an evaluation in excess of 30 percent for PTSD is not warranted. PTSD does not result in more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In this regard, the Board notes that, little in the record, including the Veteran's testimony and lay statements, suggest that the criteria for a schedular evaluation in excess of 30 percent are met. In reaching its conclusion, the Board has considered the Veteran's statements regarding his PTSD symptoms and their impact on his functioning. He described depression and difficulty with crowds, and sleep disturbance. However, the evidence as a whole does not demonstrate deficiencies supportive of a 50 percent or higher evaluation. There is no indication of obsessional rituals or other disturbance of thought. The Veteran is able to communicate appropriately. While mood disturbance is evident, the Veteran is not shown to suffer from disturbances of motivation and mood that result in reduced reliability and productivity. It is noteworthy that, following the DBQ examination in November 2011, the examiner stated that the Veteran's PTSD resulted in mild or transient symptoms. In November 2016, the examiner stated that the Veteran's PTSD would lead to intermittent periods of inability to perform tasks with associated decrease in work efficiency. The examiner related that there was no impairment in the Veteran's ability to understand and carry out short simple instructions, no impairment to understand and carry out complex instructions, no impairment exercising judgment in a work place, no impairment in adapting to stressful work circumstances, and no impairment in his ability to effectively relate to coworkers, supervisors and general public. In conclusion, the overall disability picture does not approach the criteria for a schedular evaluation of 50 percent or higher. The objective record does not demonstrate that the Veteran's documented deficiencies in occupational performance, social interaction, and mood are more consistent with the criteria for a higher evaluation. Rather, as noted, competent examiners have concluded that the Veteran's symptoms are productive of no more than an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Moreover, the Veteran himself does not describe symptoms that are productive of more than an occasional decrease in work efficiency and intermittent periods during which he is unable to perform occupational tasks. As such, the Board concludes that the Veteran's overall disability picture is best approximated by a 30 percent evaluation. In sum, the evidence demonstrates that the Veteran's symptoms do not cause occupational and social impairment of the severity contemplated by the criteria for a 50 percent evaluation. The GAF scores assigned during the appeal period support no higher than a 30 percent evaluation. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of entitlement to an evaluation in excess of 30 percent for PTSD, and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). Extraschedular Consideration. The Board has considered whether referral for an extraschedular rating is warranted for the relevant periods on appeal. The Board finds that the Veteran's symptoms are contemplated both in kind and degree by the scheduler criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). In this case, the Veteran has not submitted evidence of unemployability specifically due to his service-connected PTSD. As noted above, while it was noted that the Veteran has not been employed snice his discharge from service, the evidence does not demonstrate that this was due to PTSD or that he is unable to secure and follow a substantially gainful occupation. In fact, following a review of the claims folder, in December 2011, a VA examiner concluded that the Veteran's PTSD in and of itself would not render the Veteran incapable of physical or sedentary employment. The examiner further noted that the Veteran's PTSD in combination with medical issues as noted by Dr Wittowski would not render him incapable of maintaining gainful employment either sedentary or physical. As such, the evidence of record is against a finding that his PTSD rendered him unable to secure and follow a substantially gainful occupation at any time on appeal. In this regard, the treatment reports and examination reports provide sufficient evidence for the Board to conclude that his PTSD did not render him unemployable during any period on appeal. Thus, entitlement to TDIU is not warranted. In summary, the Board concludes that a disability rating higher than 30 percent is not approximated for any period on appeal and that the preponderance of the evidence is against granting a rating higher than 30 percent or TDIU and against remanding for referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 (b) for any other period on appeal. There is no reasonable doubt to resolve in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to an initial rating in excess of 30 percent for PTSD is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs