Citation Nr: 1804631 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-04 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depression. REPRESENTATION Veteran represented by: Chisholm Chisholm & Kilpatrick ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to August 1968 and from September 1970 to February 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) The Veteran was initially assigned a 30 percent disability rating for his PTSD with depression. In a February 2013 rating decision, the RO granted an increased disability rating of 50 percent. Because the increased disability rating assigned is not the maximum ratings available for these disabilities, the claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board previously addressed the issue on appeal in a September 2015 decision in which the Board denied entitlement to a rating in excess of 50 percent for a PTSD. The Veteran appealed the Board's decision as to the denial of entitlement to a rating in excess of 50 percent for PTSD to the United States Court of Appeals for Veterans Claims (Court). In an April 2017 memorandum decision, the Court vacated the portion of the Board's September 2015 decision as it pertained to the Veteran's claim for an increased rating for PTSD and remanded that matter to the Board for further adjudication. In December 2017 the Veteran's attorney argued that the Board should find that the Veteran's claim for TDIU is properly before it for consideration. As noted by the Court in its memorandum decision, the claim for TDIU was remanded by the Board to the RO for additional development in May 2017. As the issue not been recertified to the Board, and is still being developed, it will not be considered at this time. FINDING OF FACT The Veteran's PTSD symptomatology more nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130 Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regarding the duty to notify, once a claim of service connection has been granted, the filing of a notice of disagreement with the RO's rating of a disability does not trigger additional 38 U.S.C. § 5103 (a) notice. See 38 C.F.R. § 3.159 (b)(3). Therefore, further VCAA notice is not applicable in the Veteran's claim for a higher initial rating for PTSD with depression. See id.; see also, e.g., Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). 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). In fact, the attorney expressed waived any objection to VCAA notice errors in a November 2017 letter. Accordingly, the Board will address the merits of the claim. II. Increased Rating for PTSD Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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. Id. 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. 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A GAF (Global Assessment of Functioning) score is a scale reflecting the psychological, social, and occupational functioning on 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). This is more commonly referred to as DSM-IV. A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). A GAF of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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 peers or co-workers). A GAF of 61 to 70 is indicative of 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. A GAF of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Facts and Analysis In an April 2009 statement submitted to the Social Security Administration (SSA), the Veteran reported that he spent time with others one or two times per week visiting, playing cards, or playing dominoes. He stated that he went to church weekly and a senior movie monthly. He reported that he did not need anyone to accompany him, but his wife went with him because he needed someone to drive. The Veteran underwent a VA examination in August 2009. The examiner reported that the Veteran was dressed in clean clothes and had good hygiene. The Veteran denied any hallucinations or delusions and was fully oriented and in good contact with reality. While the examiner noted that the Veteran's expressive language was reduced by his depression, his speech was clear and he had no apparent difficulty with word finding or articulation. His eye contact was good and he could shift his attention on demand. The Veteran's psychomotor status was slowed, but it was still within the average range. The Veteran did not want to have his back to the door. He was not defiant or angry. At the time of the examination the Veteran was living with his wife, with whom he rode a motorcycle when he could. He stated that he no longer engaged in his prior hobbies, in part because of a lack of motivation. He stated that he normally slept through the night. The Veteran also reported visiting with his neighbors, but described extreme anhedonia as well as social isolation. He stated that the only friends they had were friends his wife had made, though he was able to chat with familiar faces in the park where he lived. The examiner stated that the Veteran's symptoms included social withdrawal, problems with intimacy, intrusive memories, avoidance of triggers and a significant decline in the ability to assert himself as well as cognitive efficiency, anhedonia, feelings of worthless, reduced energy, social avoidance, and restricted range of affect. The examiner further stated that the Veteran had no real hobbies and no real friends outside of his marriage, and described his marriage as strained. The Veteran was above average in all areas of memory. His reports of problems with attention were not corroborated during the examination or by objective testing. His judgment was normal and unimpaired. He had no problem with or loss of orientation. examiner noted that the Veteran had never been suicidal. During a November 2009 VA examination for his genitourinary conditions, the Veteran answered questions appropriately, his memory seemed grossly intact, and his mood was euthymic. In his December 2009 notice of disagreement the Veteran reported that he experienced problems with intimacy, intrusive thoughts, avoidance of triggers, decline in an ability to assert himself, anhedonia, low self-esteem, worthlessness, low energy, restricted range of effect [sic], became emotional when talking about his experiences, irritability, social isolation, no hobbies or friends, kept his back to wall, and had bad dreams. The Veteran was afforded a VA examination in March 2010. The examiner stated that the Veteran's cognition, memory and executive functioning were all above average or higher for his age, but the symptoms associated with PTSD imposed moderate limitation on his social functioning, explaining that his symptoms interfered with functioning on an occasional basis, but did not preclude non-interpersonal work. The examiner opined that the Veteran's symptoms did restrict the range of work the Veteran could do both effectively and efficiently, but did not preclude was still able to do work that did not require interaction with the public The Veteran had no significant limitation in the activities of daily living. The examiner assigned a GAF of 47. During an August 2012 primary care appointment, the Veteran stated that if he could sleep all day he would. He did not, however, report sleeping all day. During a February 2013 visit with his primary care physician, the Veteran denied any current depression or active mood issues. He denied any suicidal or homicidal ideation. Otherwise, private treatment records dated from July 2012 to November 2013, the Veteran had slow to normal speech, he was oriented times three, had no thought disorder, he had appropriate mood, flat to appropriate affect, and good insight and judgment. He denied any suicidal or homicidal ideation. The Veteran's was generally assessed as having major depression, which was recurrent and mild. In his February 2013 application for TDIU, the Veteran reported that he had stopped working in October 2009 and was prevented from working by his PTSD. In a March 2014 statement the Veteran again indicated that he voluntarily stopped working in October 2009. The Veteran was afforded a VA examination in April 2014. During the examination the Veteran reported that he had no relationship with his two children. He said that he had no one nearby that he socialized with and preferred not to socialize. He indicated that he had not worked since 2011, which contradicted his earlier reports. He stated that his mood was "pretty good," and the examiner noted that the Veteran's affect was congruent with his mood. The examiner observed that the Veteran was alert and fully oriented. His speech had normal in rate, tone, and syntax. The Veteran's thought content and process were unremarkable. His mood presented as euthymic with full and reactive, affect. The examiner noted no observable responsiveness to internal stimuli. The Veteran denied hallucinations, delusions, suicidal and homicidal ideation, intent, and planning. The examiner noted no observable impairment in attention, concentration, or memory. The Veteran indicated that his symptoms had caused problems in his life because he did not trust people, would not go to crowded places, had conflict with his wife and on the job, and had irritability and dislike of people in general. The examiner reported that the Veteran had recurrent, traumatic memories and dreams related to his stressor; avoidance behaviors; persistent and exaggerated negative beliefs or expectations; a persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of attachment or estrangement from others; irritable behavior and angry outbursts; hypervigilance; an exaggerated startle response; and sleep disturbance. The examiner opined that the Veteran's symptoms caused clinically significant distress or impairment in social, occupational, or other areas of functioning; however, the examiner also opined that the Veteran's symptoms appeared to be mild in nature. The examiner opined there was nothing in the evaluation that would suggest that the Veteran's symptoms of PTSD, alone, precluded him from obtaining and maintaining gainful employment. The examiner indicated that the Veteran's symptoms of PTSD did not impact his ability to engage in physical and/or sedentary work if he so chose. The examiner further opined that the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or his symptoms were controlled by medication. In a July 2017 statement the Veteran reported short-term memory loss. He stated that he was extremely anxious and avoided crowds at all costs, leaving stores if they became too crowded. When he attended church, he reported that he sat in the back so that he could visualize the entire area and know how close he was to the door. He reported that he was friendly with one couple. He had not spoken to his brother in 25 years, and had not spoken to his children in 20 years. The Veteran reported that his wife had three children, with whom he got along fine, but tried to stay out of sight when they visited and preferred not to be involved. During a September 2017 private employment evaluation, the Veteran reported becoming more depressed, sleeping excessively, minimal enjoyment in activities, irritability, angry and short fused behaviors particularly at work and with his wife. He indicated that nightmares, anxiety, and panic attacks were on the increase as well. The Veteran reported that during a typical day he would run errands with his wife, but would often return to the car and wait as public environments often trigger panic attacks. He indicated that before going to bed he checked the windows and door locks and walked the perimeter of house. He stated that he was able to sleep uninterrupted unless he experienced a nightmare. The Veteran reported rarely socializing, but had the friendship of one couple. He reported that he was estranged from his children. The Veteran asserted that he did not trust people and was hypervigilant in public, always choosing to sit with his back to the wall. He indicated that he and his wife would occasionally go to the movies, but only in the late morning or early afternoon when the theater tended to be empty. He also reported attending Mormon sermons two Sundays per month, but always sat in the back and left after one hour. He further stated that he had good days and bad days, reporting that on bad days he did not feel like getting out of bed and slept most of the day. The Veteran asserted that he retired from his job in October 2009 due to the symptoms of his PTSD, which he described as intrusive thoughts, flashbacks, nightmares, depression, anxiety, panic attacks, and concentration deficits were causing fatigue and irritability during the day. He stated that he lost patience with his customers and employees, often getting into disagreements with them. As a result of this, as well as difficulties he attributed to his other service-connected disabilities, he asserted that he was demoted to part-time assistant manager and then to part-time salesperson with a decrease in pay, after which he realized he could no longer maintain employment and retired. Initially the Board notes that the Court, in its April 2017 memorandum decision, found that the Board's September 2015 decisions had failed to properly analyze Veteran's symptoms and their effects on social functioning; considered factors irrelevant to disability rating (i.e. lack of treatment); and failed to consider evidence that contradicted findings. The Court further found that Board relied "almost solely on the absences of specific symptoms." The Court further found that while the Board addressed frequency, severity, or duration of some of the Veteran's psychological symptoms, it failed to address all these factors for any symptom, citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed.Cir.2013). Further, the Court found that the Board's consideration of a lack of treatment is not contemplated by the rating criteria in 38 C.F.R. §4.130 and the Board did not explain how a lack of treatment was relevant to the denial of a higher rating. However, even upon careful review and reconsideration of the evidence of record the Board finds that the preponderance of the evidence is against a rating in excess of 50 percent, as the weight of the evidence is against a finding that the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran has consistently denied any suicidal ideation. He has never reported any spatial disorientation, and, to the contrary, he has generally been observed as being fully oriented. There is no suggestion in the evidence that the Veteran has neglected his personal appearance or hygiene. The Veteran has demonstrated some ritual behavior. For instance, in the September 2017 employment evaluation the Veteran reported that he checked the windows and door locks and walked the perimeter of his house before going to bed. The Veteran has also reported, as well as demonstrated, that he does not like to sit with his back to doors in public. However, there is no indication that these behaviors have interfered with his routine activities. The Veteran's speech has generally been evaluated as good, with some periods of slow speech. And while the August 2009 examiner reported that the Veteran's expressive language was reduced by his depression, his speech was clear and he had no apparent difficulty with word finding or articulation. Thus there is no indication that the Veteran's speech has been intermittently illogical, obscure, or irrelevant at any point during the period on appeal. The Veteran has stated that he is socially isolated, experiences feeling of detachment or estrangement from others, and has reported that he has few friends outside of his marriage, stating that only friends he did have were those made by his wife. The Veteran has stated that when he was working he often got into disagreements with his employees. The Veteran is estranged from his children and his brother. But, while he has described his marriage as strained, he has remained married and reported that he and his wife run errands, attend church, and occasionally go the movies together. Additionally, in his July 2017 statement he indicated that he was friendly with one couple and got along fine with his wife's three children, though he preferred to stay out of sight and not be involved. The Board also finds significant the April 2014 VA examiner's opinion that although the Veteran's symptoms caused clinically significant distress or impairment in social functioning, the symptoms appeared to be mild in nature. Thus, based on the evidence of record, the weight of the evidence clearly establishes that the Veteran has difficulty in establishing and maintaining effective work and social relationships, which is more indicative of the symptoms associated with a 50 percent rating; however, as the Veteran has been able to maintain some friendship and has remained married, though with some strain, there is no indication that his PTSD has resulted in an inability to establish and maintain effective relationships. Id. Further, there is no indication that the Veteran experiences near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. In April 2009 he reported that he could function independently. In November 2009 his mood was euthymic. In March 2010 a VA examiner found that the Veteran's symptoms did not significantly limit the activities of daily living and only interfered with his functioning on an occasional basis. In February 2013 the Veteran denied any current depression or active mood issues. In private treatment records dated from July 2012 to November 2013 the Veteran had appropriate mood. During an April 2014 VA examination he stated this mood was "pretty good" and the examiner reported the Veteran's mood as euthymic and opined that while his symptoms, which included a persistent negative emotional state and persistent and exaggerated negative beliefs or expectations, caused clinically significant impairment in his functioning, the symptoms appeared to be mild in nature. Finally, while the Veteran asserted that panic and depression were on the rise in the September 2017 employment assessment, he also stated that he had good days and bad days. Further, he reported that he was still going to church twice a month and socialize with one couple, though rarely. Therefore, there is no indication, based on the Veteran's own reports, that his symptoms have become near-continuous or have affected his ability to function independently, appropriately, or effectively. The Veteran's symptomatology has consistently included anger and irritability, especially with his wife and, when he was working, customers and employees, which often resulted in disagreements. Likewise, the April 2014 VA examiner reported that the Veteran's symptoms included irritable behavior and angry outbursts. Thus, while there is no indication in the evidence that the Veteran has exhibited period of violence, his symptoms are indicative of impaired impulse control and difficulty in adapting to stressful circumstances. On the other hand, the Veteran has consistently exhibited symptoms associated with the 50 percent rating criteria. The Veteran has regularly reported losing interest in his former hobbies. Additionally, in an August 2013 private treatment record he stated that if he could sleep all day he would, and has since reported excessive sleeping. See, e.g., September 2017 employment evaluation. These symptoms are more indicative of disturbances in motivation. The Veteran's affect has regularly been described as flattened or with restricted range, which is indicative of the symptomatology associated with a 50 percent rating. While the Veteran has reported that he has experienced short-term memory loss, and is competent to report his symptoms, VA examiners in August 2009, November 2009, March 2010, and April 2014 reported that there was no observable impairment in his memory. Moreover, impairment in short-term memory is characteristic of a 50 percent rating. Additionally, as discussed above, the Veteran's symptoms have resulted in difficulty in establishing and maintaining effective work and social relationships. Further, the Board finds persuasive the opinions of the March 2010 and April 2014 VA examiners. The March 2010 examiner found that the Veteran's symptoms the associated with PTSD imposed moderate limitation on his social functioning on an occasional basis and did not preclude non-interpersonal work. The April 2014 examiner opined 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 his symptoms were controlled by medication, in line with a 10 percent rating. Finally, while not dispositive, in March 2010 the Veteran was assessed with a GAF score of 47, indicative of serious symptoms. However, the symptoms otherwise described in the evidence of record do not meet the criteria for a 70 percent rating. In summary, the evidence of record shows that a disability rating of 50 percent, but no higher, is warranted for the Veteran's PTSD. A 50 percent disability rating during this period contemplates the severity, frequency, and duration of the Veteran's PTSD symptoms and is based on all of the evidence of record. See 38 C.F.R. § 4.126(a). While the Board acknowledges that the Veteran has exhibited factors such social isolation, impaired impulse control, and difficulty in adapting to stressful circumstances, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran's symptoms appear consistent with no more than occupational and social impairment with reduced reliability and productivity. Thus, the criteria for a finding of a 70 percent evaluation or higher are not met during this period, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an initial rating in excess of 50 percent for acquired psychiatric disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs