Citation Nr: 1804936 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 15-36 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran had active service from December 1963 to December 1965. This matter comes to the Board of Veterans' Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2017 videoconference hearing and a transcript of the hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT For the entire period on appeal, the Veteran's service-connected PTSD has been manifested by no worse than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 50 percent for PTSD have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Neither the Veteran nor his representative has raised any issues with the duty to notify. 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."). The Board acknowledges that the Veteran has asserted that the January 2015 VA PTSD examination is inadequate because the examiner was running late, spent no more than fifteen minutes conducting the examination, and failed to consider the Veteran's full range of symptoms. However, the Board finds that such assertions are insufficient to overcome the presumption of regularity regarding VA examiners who conduct compensation examinations. The United States Court of Appeals for Veterans Claims (Court) has held that there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties. See Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Both the Court and the Federal Circuit have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). Indeed, the Board finds no indication within the record, aside from the Veteran's own assertions, that the January 2015 VA examination was rushed or otherwise inadequate. Rather, the examination report, which appears thorough and complete, provides adequate information to consider the applicable rating criteria. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). II. Increased Rating - PTSD Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). 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. 38 C.F.R. § 4.126(a) (2017). When evaluating the level of disability from a mental disorder, VA also 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(b). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to the Veteran's increased rating claim on appeal, the Board has considered the relevant temporal period including one year prior to his October 2014 increased rating claim, as well as whether any additional staged rating periods are warranted. The Veteran's service-connected PTSD is currently rated as 50 percent disabling from December 16, 2005 under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411 (2017). Under the applicable rating criteria, a 50 percent disability rating is warranted when there is 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. Id. A 70 percent disability 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 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 effective relationships. Id. Finally, a 100 percent disability rating is warranted when there is 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 determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). 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, 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). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. 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 rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. One factor for consideration is the Global Assessment of Functioning (GAF) score, which 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). A GAF score of 61 to 70 reflects 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, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflects moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). However, the rating schedule does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule. Rather, they are but one factor to be considered in conjunction with all the other evidence of record. Following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 50 percent for PTSD for the entire period on appeal. In order to warrant an increased 70 percent disability rating, the Veteran's overall impairment from his PTSD would need to approximate 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, DC 9411. Notably, VA treatment records throughout the appeal period document that the Veteran has regularly attended individual therapy twice per month, as well as group therapy twice per month, where he has been an active participant. Moreover, upon mental status examinations throughout VA treatment notes, he has consistently displayed normal speech, logical thought content, and adequate hygiene, without suicidal or homicidal intent. To the extent that the Veteran reported passive suicidal ideation due to pain in October 2014, the Board finds it probative that at that same time he also firmly denied any active suicidal ideation, intent, or plan, and verbalized several reasons for living. Additionally, while the Veteran has subsequently reported occasional suicidal ideation within his October 2015 substantive appeal and at the October 2017 Board hearing, such statements are of lessened probative value when compared to his VA treatment records which document his regular denials of suicidal ideation, and in light of the fact that his reports of suicidal ideation have been made in the context of his claim for increased VA compensation. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Rucker v. Brown, 10 Vet. App. 67 (1997). Upon VA examination in January 2015, the Veteran denied any social life and reported that he avoided groups; however, he also reported a committed marriage to his spouse of 47 years, a great relationship with his adult son, and two grandchildren which were "bright spots" in his life. He reported that he was retired from his job as an industrial mechanic, and that he had spent time working in his workshop since retirement, although he reported losing interest in hobbies in the last several years. The VA examiner concluded that the Veteran's PTSD symptoms, including depressed mood, anxiety, suspiciousness, 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), an inability to establish and maintain effective relationships, and an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), resulted in occupational and social impairment with reduced reliability and productivity. To the extent that the January 2015 VA examiner document PTSD symptoms including difficulty in adapting to stressful circumstances (including work or a work-like setting) and an inability to establish and maintain effective relationships, which are contemplated by the rating criteria for an increased 70 percent disability rating, as well as an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), which is contemplated by the rating criteria for a 100 percent disability rating, the Board finds it probative that the examiner concluded that such symptoms resulted in no worse than occupational and social impairment with reduced reliability and productivity. Additionally, the evidence of record does not otherwise document that such symptoms have resulted in occupational and social impairment, with deficiencies in most areas. The Board has also considered the Veteran's report that he lacks the ability to maintain effective relationships. Additionally, to the extent that the January 2015 VA examiner indicated similarly that the Veteran lacked the ability to maintain effective relationships, the Board finds that this is inconsistent with other evidence of record, including the Veteran's own reports at the January 2015 VA examination, which documents that he has maintained a committed 40-plus-year marriage and strong familial relationships with his son and grandchildren. Moreover, to the extent that the Veteran has asserted that his ongoing marriage is only possible because his spouse is a mental health professional, the Board finds this does not refute the fact that he has an effective relationship with his wife.. The Veteran has also consistently reported irritability and impaired impulse control; however, the evidence of record does not otherwise document that such symptoms have resulted in periods of violence during the appeal period. Moreover, the Veteran specifically denied ever being on the verge of violence towards others at the December 2017 Board hearing. Additionally, the Veteran's documented GAF scores during the period have consistently remained 60, as documented in October 2013, December 2013, and March 2014; such scores reflect no worse than moderate symptoms which do not warrant an increased disability rating. See Carpenter, 8 Vet. App. at 242-44. The Board is aware that it is the factfinder who determines the proper evaluation for a service-connected disability. Thus, while the January 2015 VA examiner indicated that the Veteran's PTSD symptomatology resulted in occupational and social impairment with reduced reliability and productivity, which falls squarely within the rating criteria for a 50 percent disability rating, the Board notes that it has nevertheless made its own determination based upon a full review of the evidence of record. Based upon the evidence of record, including as discussed above, the Board concludes that the preponderance of evidence of record is against psychiatric symptomatology which more closely approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; nor are such symptoms of similar severity, frequency, and duration as those associated with an increased 70 percent disability rating. See 38 C.F.R. § 4.130, DC 9411. Additionally, as the Veteran's symptoms do not meet the rating criteria for a higher 70 percent disability rating, it follows that his symptoms also do not meet the more severe rating criteria for an increased 100 percent disability rating. Significantly, the Veteran has not displayed gross impairment in thought processes or communication; persistent delusions or hallucinations; or disorientation. To the extent that it could be asserted that the Veteran's reported suicidal ideation or ideas of self-harm equate with grossly inappropriate behavior or persistent danger of self-harm, the Board notes that the Veteran's such symptomatology has not resulted in total occupational and social impairment, as he has reported past ability to maintain employment prior to his retirement, as well as the ability to maintain close family relationships. Moreover, although the January 2015 VA examiner documented an intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, such finding is not supported by the additional evidence of record, including mental status examinations which consistently document proper attire, grooming, and hygiene. As such, the Veteran has not shown the severity of occupational and social impairment necessary for an increased 70 or 100 percent disability rating during the rating period, and his symptoms as a whole are not of similar severity, frequency, and duration as those particular symptoms associated with a 70 or 100 percent disability rating. Vazquez-Claudio, supra. Thus, the Board finds that the Veteran's PTSD symptoms do not result in the required level of occupational and social impairment for a disability rating in excess of 50 percent for the entire period on appeal. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim for increase is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs