Citation Nr: 1805304 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-38 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial disability evaluation in excess of 50 percent prior to May 2, 2011 for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1958 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which, in pertinent part, granted service connection for PTSD, rated 50 percent, effective August 25, 2009 (date of claim). The Veteran disagreed with the rating assigned for that disability. See August 2012 notice of disagreement. In an October 2014, the Veteran was awarded a 100 percent rating for his service-connected PTSD, effective July 27, 2012. In April 2015, the RO issued another rating decision that awarded an earlier effective date of May 2, 2011, for the award of the 100 percent rating for the Veteran's service-connected PTSD. Accordingly, what remains on appeal is entitlement to an initial disability evaluation in excess of prior to May 2, 2011, for the Veteran's service-connected PTSD. A hearing was held before a Decision Review Officer (DRO) in July 2015 and before the undersigned Veterans Law Judge (VLJ) at the Board in September 2017. A hearing transcript of both hearings is of record. In September 2017, the Veteran submitted an Intent to File notice. The Agency of Original Jurisdiction (AOJ) should provide the Veteran with the appropriate application to file for the general benefit selected on the form. Because the Board does not have jurisdiction over the incomplete claim, it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 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 Prior to May 2, 2011, the Veteran's PTSD resulted in total occupational and social impairment. CONCLUSION OF LAW Prior to May 2, 2011, the criteria for a rating of 100 percent for service-connected PTSD were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The duty to notify has been met. See VCAA correspondence dated November 2010 and September 2017 Board hearing transcript. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has associated the Veteran's service treatment records and VA treatment records with the claims file. The Veteran was also afforded adequate examinations. The examiners considered the relevant history, provided a detailed description of the condition, and provided an extensive analysis to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria, Factual Background, and Analysis As noted in the Introduction, the Veteran's service-connected PTSD is currently assigned an initial rating of 50 percent prior to May 2, 2011, and 100 percent from that date. It is his contention that he warrants a rating in excess of 50 percent prior to May 2, 2011, for his service-connected PTSD. Specifically, in a December 2014 statement, the Veteran contended that he had suffered from PTSD ever since his tour in Vietnam, which was 44 years before the award of his 100 percent rating for his PTSD. He explained since his tour in Vietnam, he did not recognize his symptoms as being indicative of PTSD until they were later diagnosed as such. He argued that while he did not seek mental health treatment in 2009 to evaluate the severity of his PTSD at the time, he believes his disability was as bad then as it was when it was finally diagnosed in 2011, and thus warrants a 100 percent rating from that time. Disability ratings are determined by applying the criteria set forth in 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 (2012); 38 C.F.R. § 4.1 (2017). 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 (2017). 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 (2017); 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 (2017). 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 (2017). 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 average impairment of earning capacity due to PTSD is determined by the criteria set out in the General Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Under these criteria, a 50 percent rating is warranted where the psychiatric condition produces occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; 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. A 100 percent evaluation is warranted where 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. Although PTSD is rated under the General Rating Formula, the use of the term "such as" in 38 C.F.R. § 4.130 indicates that the listed symptoms are not intended to constitute an exhaustive list. Rather, the symptoms listed under the General Rating Formula for Mental Disorders are to serve as examples of the type and severity of symptoms or their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms to be considered when rating a Veteran's PTSD are not limited to those listed in 38 C.F.R. § 4.130. Instead, VA shall consider all symptoms of a Veteran's PTSD that affect his level of occupational and social impairment, including, if applicable, those identified in the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided additional guidance in rating psychiatric disability. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Specifically, the Federal Circuit 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. Id. at 2. It 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. 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 2. Within the DSM-IV, Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score is just one part of the medical evidence to be considered and is not dispositive. The same is true of any physician's statement as to the severity of a disability. It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record. A GAF score 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 defined as 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 relationships. See Diagnostic and Statistical Manual of Mental Disorders. As was noted above, the Veteran has been awarded a 100 percent rating for his service-connected PTSD, effective May 2, 2011. This award was based on the report of a private psychological evaluation conducted by Dr. A.M.-M. on that same date. In particular, during that private psychological evaluation, the Veteran presented with casual attire and adequate hygiene. He reported being divorced twice, having poor sleep and experiencing nightmares that woke him up on a regular basis. His appetite was adequate and energy level was low. He reported visual and auditory hallucinations, which he only admitted to others in 2002, though he experienced them following his service in Vietnam. He expressed feelings of worthlessness and hopelessness about his future but denied any current intent to take his life or others. During the evaluation, the Veteran worked hard to concentrate but he kept a running verbal dialogue while he thought out his answers. At one point, he collapsed from emotional pain over someone's death and needed to regain his composure to continue. The Veteran's "depressed mood" and "cognitive and physical fatigue" scales were both elevated to a significant clinical level and he felt despondent, hopeless and worthless. Additionally, he noted diminished interest in pleasurable activities. Dr. A.M.-M. noted that the Veteran might be overly self-critical and might appear to have inadequate psychological defense mechanisms. The Veteran also reported preoccupation with feelings of guilt and unworthy. He felt regretful and unhappy about his life and was plagued by anxiety and worry about the future. Suspicious of the actions of others, he tended to blame them for his negative frame of mind and had a potential to physically or verbally attack others when he was angry. Dr. A.M.-M. diagnosed PTSD and bipolar disorder, and assigned a GAF of 35. After reviewing the pertinent evidence of record, the Board finds that the symptoms related to the Veteran's service-connected PTSD more closely approximated the criteria noted for a 100 percent evaluation under 38 C.F.R. § 4.130, Diagnostic Code 9411, as of August 25, 2009 (his date of claim). In this regard, the Board acknowledges that the available medical evidence prior to May 2, 2011, is limited. However, it is not shown by the record that the Veteran experienced a worsening of symptoms in May 2011. Rather, the competent evidence of record reflects that his PTSD symptoms have been consistent throughout the entirety of the appeal period. Specifically, in addition to the Veteran's lay statements to that effect, he submitted a December 2014 letter from D.E., D.O., who reported that the Veteran had endorsed depressive symptoms as early as June 2008 and continued to require prescription medication to assist with his mental condition. D.E., D.O., indicated that the Veteran had suffered from PTSD as well as bipolar disorder for many years, and that his symptoms had been long standing since his military career manifesting in varying degrees during his adulthood. The Veteran also submitted an October 2015 letter from Dr. A.M.-M., who reported that while she had first seen the Veteran in March 2011, based on information regarding his history, the symptoms he presented with at that time clearly began much earlier than 2011. Additionally, she reported that his symptoms were at the 100 percent disability rating when she met him and had continued to progress with the agitation he had felt about not being supported by the government he served. In particular, he had suffered broken marriages, family relationships, poor interpersonal relationships with neighbors and coworkers, flashbacks, avoiding triggers and an inability to keep his jobs. The Veteran also presented testimony at a July 2015 DRO hearing and at a September 2017 Board hearing to the effect that his mental condition was as severe for the period from 2009 to 2011 as it was after that date. In particular, at the July 2015 DRO hearing, the Veteran testified that he experienced a lot of anxiety as well as anger. He took Xanax to the point he was taking it daily, but did not want to continue to take addictive drugs. He further testified that at times he felt like suicide would take care of all his problems, but ultimately he did not want to kill himself. He mentioned he would rather have the state charge him from killing somebody else, like a politician. He also indicated he was suspicious of a lot of people as he could only trust himself. At the September 2017 Board hearing, the Veteran testified that he had last worked at a refinery and retired about 1993. He tried to work other jobs following his retirement but he would either get fired from his jobs or he was "relieved", which the Veteran characterized as essentially being fired. Additionally, the Veteran discussed his symptoms in 2009. He stated that he had poor sleep and would go to the doctors to get medication to help him sleep. His mind would race with thoughts of Vietnam, marriage or just problems in general. He would often be awakened by his own yelling in his sleep following nightmares. Due to his lack of sleep at night, he was fatigued during the day. In terms of his social life, the Veteran testified he used to go out dancing but had not in a long time following an issue in a nightclub and the strobe lights. He also testified that he did not have contact with family members because they misunderstood each other. Additionally, he testified that from 2009 through 2011, he essentially stayed away from others except for one friend. However, he had recently had a falling out with that one friend too. The Veteran also testified that he suffered from anger outbursts but that his memory was fair for his age. He indicated he had difficulty expressing himself and suffered from panic attacks. Sometimes his anger would cause him to have problems catching his breath as well. The Veteran described spending his days watching FOX television and sometimes he would go out in the evening or fish at night off his back porch. Mostly, he indicated he stayed in the house and just paid attention to what he was going to eat for dinner. He noted he was suspicious of certain people and most certainly with interactions with government authorities. The aforementioned medical and lay evidence of record supports the finding that the Veteran's symptoms have been as debilitating as they were in 2011 for the entire appeal period as opposed to worsening in 2011. Accordingly, and resolving all reasonable doubt in the Veteran's favor, the Board finds that for the period prior to May 2, 2011, the Veteran's service-connected PTSD resulted in total occupational and social impairment. As such, he is entitled to a (maximum) rating of 100 percent prior to May 2, 2011, and the appeal as to this issue is granted. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). The Board acknowledges the representative's contention raised at the September 2017 Board hearing regarding the issue of entitlement to individual unemployability if a 100 percent disability rating for PTSD was not found to be warranted. However, because the Veteran's appeal is being granted in full therein, the issue of unemployability will not be addressed further. ORDER An initial disability evaluation of 100 percent, prior to May 2, 2011, for service-connected PTSD is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs