Citation Nr: 1805445 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-31 133A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In November 2014 and December 2017, the Veteran testified at videoconference hearings before the undersigned Veterans Law Judge (VLJ). A transcript of those hearings is of record and associated with the claims file. This matter was previously before the Board in August 2017, at which time it was remanded for additional development. FINDING OF FACT The evidence of record indicates that the Veteran's PTSD results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment is clearly not indicated. CONCLUSION OF LAW The criteria for a rating of 70 percent, but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in October 2004. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the March 2017 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. Increased Ratings 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. 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 degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 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. See 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). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. PTSD Under Diagnostic Code 9411, the General Rating Formula for Mental Disorders is used for PTSD. 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 (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 rating is assigned 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. Finally, a 100 percent rating is assigned 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The use of the term 'such as' in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated 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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Within the DSM-IV, the 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, of course, 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. As the increased rating claim was still pending before the RO at the time of the August 4, 2014, effective date for the new DSM-V criteria, those criteria would apply, but only from August 4, 2014. The Board finds that it may also still consider DSM-IV throughout the entire time frame on appeal should that criteria be more favorable to the Veteran. A GAF score of 31 to 40 reflects some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as with work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF of 41 to 50 is defined as 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 score of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in his social, occupational, or school functioning (e.g., few friends, conflicts with peers or with co-workers). Scores ranging between 61 and 70 reflect 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," and has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). When evaluating a mental disorder, the Board 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 Veteran received a VA PTSD examination in November 2010 and indicated that he "got along with his wife of 32 years pretty well now." He had two adult children, and described his relationship with them as "real good." He also had a two year old grandson and indicated that he was surprised at how enjoyable it was to have a one. The Veteran also had two brothers and a sister; however, he was only on good terms with his brothers. The Veteran stated that he had acquaintances, but no real friends. He preferred to be alone and did not wish to be bothered with other people. The Veteran was also employed, working as a janitor for 20 hours per week, and he helped care for his grandson one day per week. Upon examination, the Veteran was clean, neatly groomed, and casually dressed. He was cooperative and friendly, and his affect was constricted. The Veteran's speech was noted as unremarkable, spontaneous, clear, and coherent. His orientation was noted to be intact to person, time, and place, and his thought process and content were both noted as unremarkable. The Veteran indicated he experienced panic attacks a year ago, but he was currently on medication for them. He stated that he did not have homicidal thoughts, but experienced suicidal thoughts once in a while. However, he denied any plan. The Veteran's private psychologist submitted correspondence in April 2011 indicating that the Veteran's intrusive recall, sleep difficulty, and combat memories continued to haunt him. He estimated that the Veteran's GAF score was between 48 and 52, depending upon situational factors in his life, including times of year that relate to combat in Vietnam. On his August 2011 notice of disagreement, the Veteran indicated that, since he was granted a 50 percent evaluation for his PTSD, he continued having problems getting along with fellow workers and family members. He also indicated that he had suicidal ideation. However, he was prescribed medication in 2010 and he stated that those symptoms had subsided. The Veteran received another VA PTSD examination in April 2014, and the examiner indicated that the Veteran had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he was married, and maintained a positive relationship with his wife, two children, and six year old grandson; he stated "I feel highly about my family." He also worked in housekeeping at a hospital for the past nine and a half years. The Veteran reported that the work was solitary, but he enjoyed it. He also reported that he was able to complete his duties without difficulty. Upon examination, the examiner noted symptoms including anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was casually dressed with proper hygiene, and his expressive/receptive language skills were within normal limits. His thought process was logical and goal-directed, and he was cooperative. The examiner also noted that the Veteran had significant anger, which was adequately controlled via medication. The Veteran received a Board hearing in November 2014 and testified that he was always described as a nice, easy going, well-groomed, well-spoken person on his VA examinations, but the examiners never printed any of the psychological things that he mentioned to them. He described a bad relationship with a neighbor, and also how his wife was embarrassed of him because of the way he acted in public. The Veteran recounted stories from the supermarket where he yelled at other people to move quicker or open additional lines. The Veteran received a private psychological examination in August 2017 and indicated he was currently married with two adult children and two grandchildren. He enjoyed visiting with his grandchildren, but reported some amount of conflict with his older grandson. He had a periodically strained relationship with his wife, and would often go weeks or even months without speaking to her. The Veteran also reported he worked as an occasional housekeeper for a local hospital. Upon examination, the Veteran was alert and oriented in all three spheres. His mood was described as pessimistic and somewhat irritable at baseline. He demonstrated significant sleep reversal, but no appetite disturbance. The Veteran denied any present suicidal or homicidal ideations. He felt he never left Vietnam emotionally, and recounted difficulties at the grocery store; he always used the self-checkout lanes to avoid even superficial contact with clerks. His most severe symptoms included daily disturbing memories and thoughts of Vietnam, feeling distant from others, irritability and angry outburst, and feeling super alert or hypervigilant. The Veteran had a history of impulsive anger outbursts, including shooting a BB gun at a neighbor's dog and actually hitting his neighbor. He also killed a family pet by hitting it on the head with a frying pan when it would not stop barking. The Veteran also reported terrible road rage. The examiner indicated that the Veteran had a long history of very poor interpersonal functioning. He had serious difficulties getting along with others at work. He also reported many thoughts of disappearing entirely and often isolated from his wife, going weeks without any conversation at all. The examiner found no psychosis or delusions, and the Veteran denied any auditory or visual hallucinations. His thought processes were clear and linear, and no short- or long-term memory difficulties were seen. As a result of the evaluation, the psychologist concluded that the Veteran was 100 percent disabled by his symptoms. He had total social impairment including gross impairment in his ability to maintain even superficial relationships with others. He was totally ineffective in all relationships in his life, including those with his family. The examiner found that the Veteran had a persistent danger of hurting others and hurting animals, and had road rage that was sometimes violent. The Veteran received a second Board hearing in December 2017 and testified at that time that he currently worked part time at a hospital. He initially had problems at work, but testified that his supervisor was very pleased with his work; the Veteran stated that, during an evaluation, his supervisor said he wished he had 100 employees like him. The Veteran recounted incidents where he got frustrated at a gas station and grocery store. He also recounted the incident where he shot a BB gun at his neighbor's dog because it was constantly barking, but accidentally struck his number in the back. The Veteran indicated that he had a good relationship with his wife, but he understood that she had to "put up" with a lot. The Veteran stated that he spent 95 percent of the time alone, and rarely went out. He stated that did not want to see his children often, and the only people he were interested in having around were his grandson and wife. The Veteran used to play a lot of table games with his wife and grandson, but he did not do any of that any more. He also stated that he had several friends who were older, as he felt that he was able to communicate with people who were in their 80s and 90s. With regards to his current job, the Veteran indicated that he did not mind working with others. Considering the foregoing, the Board finds that the Veteran is entitled to a 70 percent, but not higher, rating for PTSD. Initially, the Board notes that the Veteran is married and has two children and two grandchildren, and he has held a part time job for more than a decade, and his own credible testimony at his Board hearings indicates that he is great at it. However, the Veteran's statements indicate that his level of attentiveness in his relationships fluctuates, and while he has not demonstrated a complete inability to establish and maintain effective relationships, the Veteran's testimony and statements with regards to his interpersonal relationships suggests a continual challenge to maintain such relationships. More specifically, it is clear that the Veteran has continuing problems with his ability to maintain effective relationships, he experiences periodic suicidal ideation, and his significant problems with anger management. In this regard, the Board notes the Veteran's apparent impaired impulse control, highlighting the incident with the BB gun and outbursts at the supermarket. The Board further notes the private psychologist's assessment that the Veteran had a persistent danger of hurting others and hurting animals. Consequently, giving the Veteran the benefit of the doubt, that Board finds that a 70 percent rating is warranted for the Veteran's PTSD. As for the highest rating of 100 percent, the Board finds that a preponderance of the evidence is against a finding that his symptoms are consistent with total social and occupational impairment. In addition, with the possible exception of being a persistent danger of hurting himself or others, he also does not regularly exhibit the more specific criteria required for this rating, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, the 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. ORDER An evaluation of 70 percent, but not higher, for PTSD, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs