Citation Nr: 1805659 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-01 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to April 30, 2014, and in excess of 50 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, his spouse, and his counselor ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel INTRODUCTION The Veteran had active service from February 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2014, the Veteran testified before the undersigned at a videoconference hearing. A transcript of the hearing is associated with the claims file. In November 2014, the Board granted the Veteran's claim of entitlement to a total disability rating for compensation based on individual unemployability (TDIU) and remanded the claim currently on appeal for further development. The Board again remanded the claim in August 2017, and it now returns for appellate review. FINDING OF FACT For the entire period under review, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, but not by total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 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 a duty to assist argument). II. Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Historically, service connection for PTSD was established in November 2005, at which time the RO assigned an initial 30 percent disability rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective July 29, 2005. The Veteran filed a claim for an increased rating in December 2010. The April 2011 rating decision currently on appeal continued the 30 percent rating, and a December 2015 rating decision increased the rating to 50 percent, effective April 30, 2014. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 30 percent is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent 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); and the inability to establish and maintain effective relationships. A 100 percent rating 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. Evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating;" and the Board would not need to find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, without the examples listed in the rating criteria it would be difficult to determine the difference between a 30 and 50 percent rating. If the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. A veteran may only qualify for a given rating based on mental disorder by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency. Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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). According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), global assessment of function (GAF) was 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). While not determinative, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The revised DSM-5, which among other things, eliminates GAF scores, applies to cases certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093 (Aug. 4, 2014). This case was certified in August 2012; thus, the DSM-IV applies. According to the GAF scale, a score within the range of 61 to 70 represents mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or coworkers). A score within the range of 51 to 60 represents 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 score of 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score between 31 to 40 indicates 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 work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). The Board notes that the GAF scale has been abandoned in the updated fifth edition of the DSM. In this case, however, the DSM-IV was in use at the time the medical entries of record were made. Thus, the GAF scores assigned remain relevant for consideration in this appeal. III. Factual Background In connection with his December 2010 claim, the Veteran underwent a VA examination in February 2011. He described his typical mood as "depressed," and said he was easily irritated at work. He said he was depressed 80 percent of the time. He also said that he could not stay at a job for more than two to three years at a time and suffered from increased absenteeism and tardiness. He also described his 40-year marriage to his wife as "like roommates." His mood was dysphoric and he had a short attention span. He was intact to person, time, and place. His PTSD symptoms included chronic sleep impairment, startled response, frequent nightmares, anger, panic attacks that caused his chest to pound so hard it fluttered, irritability, hypervigilance, intrusive memories, and avoidance behaviors including avoiding big crowds and war movies.. He denied suicidal and homicidal thoughts but noted that he had violent episodes and two months earlier had smashed a cabinet with a steel bar. He also said that when he felt depressed he could neglect his personal hygiene, and that occurred once per month. He said he lacked interest, lacked emotional response, and lacked connections to the people in his life. He was assigned a GAF score of 59. A January 2012 letter from the Veteran's counselor with the Vet Center noted that the Veteran had been in treatment for his PTSD since 1978, that his anxiety affected his ability to maintain a job, that he was noise intolerant, and that he could become belligerent and verbally abusive while on the job. His counselor noted that he exhibited symptoms of depression and anxiety during counseling and that his anxiety had worsened over time. A January 2012 letter from the Veteran's wife noted that the couple had spent much time in couples and individual counseling. She stated that she noticed an increase in the Veteran's PTSD symptoms in February 2011. His ability to deal with work-related issues diminished. He described confrontations with bosses and coworkers and an inability to meet work expectations. She stated that he talked about suicide and feared that he would physically attack his boss and/or coworkers. She noted that he had difficulty controlling his outbursts and would isolate himself. Finally, she stated that he had disrupted sleep that caused him to be up at least five times during the night from nightmares. The Veteran underwent another VA examination in April 2012. The examiner noted that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran noted that he was estranged from his siblings, and had one or two close friends. The examiner noted the Veteran's PTSD symptoms to include: depressed mood; anxiety; chronic sleep impairment; mild memory loss; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; impaired impulse control, such as unprovoked irritability with periods of violence; and feelings of hopelessness. On mental status examination, the Veteran was adequately groomed, alert, and oriented. His affect was stable and relaxed, and his speech and thought processes were generally logical and coherent. He said that he was only happy when he spent time with his grandnephew. Otherwise, he said he experienced depression and hopelessness. He said he avoided watching television because it made him anxious. He reported violent outbursts, and described a physical altercation with a stranger at a gas station. He described his sleep as poor and his memory and concentration as "not good." The examiner noted that the Veteran was capable of managing his financial affairs. In a May 2012 addendum opinion, a VA examiner noted that the symptoms relating specifically to the Veteran's PTSD, rather than his personality disorder, included: recurrent and distressing recollections of the event, including images, thoughts or perceptions; efforts to avoid activities, places or people that aroused recollections of the trauma; feelings of detachment or estrangement from others; restricted range of affect; difficulty falling or staying asleep; irritability or outbursts of anger; and hypervigilance. In a September 2012 VA treatment note, a VA psychiatrist noted that the Veteran was unable to tolerate the routine emotional stressors of a competitive workplace due to his severe, chronic PTSD. In December 2012, the Veteran advised that he was starting an eight-week anger management course. At an April 2014 Board hearing, the Veteran and his wife testified that the Veteran was depressed on a daily basis. His wife said that he had no interest in socializing and isolate himself from people. The Veteran said he had no social relationships and had difficult professional relationships. He argued with his coworkers and got into trouble at work. He also said that he had suicidal and homicidal thoughts, that he was hypervigilant, and that he was easily provoked. His wife said that she had to remind him to shower. She also noted that she and the Veteran did not sleep in the same room. The Veteran underwent a VA examination in December 2015. The examiner summarized the Veteran's level of impairment as that of occupational and social impairment with reduced reliability and productivity. The Veteran described his marital relationship as "weird," and said that he was easily irritated and angered. He said that he had no close friends and no relationship with his siblings. He said that he was okay when he was "left alone" and noted that he had persistent anxiety and irritability. He said he could not watch the news, and felt depressed "quite a bit." His energy was generally low and he had poor sleep. There were no signs of thought disorders, hallucinations, or delusions. Notably, the examiner wrote that the Veteran had intermittent feelings of worthlessness, hopelessness, and passive suicidal ideation. IV. Analysis After a careful review of all lay and medical evidence of record pertinent to the applicable time period at issue, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that the most persuasive evidence regarding the overall severity of his social and occupational impairment due to his service-connected PTSD supports the award of a 70 percent rating. While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected PTSD, the evidence shows no distinct periods of time during the appeal period when the Veteran's disorder varied to such an extent that a rating greater or less than 70 percent would be warranted. See Fenderson, 12 Vet. App. at 126. Overall, the Board finds that throughout the appeal period, the Veteran's PTSD was manifested by: constant depression; irritability; poor concentration; hypervigilance; deficiencies in work and personal relationships; dysphoria; chronic sleep impairment and recurrent nightmares; anger management issues; poor personal hygiene; and violent tendencies. Collectively, these symptoms are of the type, extent, severity, and/or frequency that more nearly approximate occupational and social impairment with deficiencies in most areas of the Veteran's life, including work, family relations, judgment, thinking, and mood. However, the Board finds that the preponderance of the evidence is against a finding that his PTSD resulted in total occupational and social impairment to warrant a 100 percent disability rating. In this regard, there is no evidence in the record showing that his PTSD was manifested by such symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Indeed, VA treatment records indicate that the Veteran has consistently noted to be oriented to person, time, and place. There is nothing in the record which suggests that he has ever suffered from hallucinations or delusions. There is also nothing in the record suggesting that he has been unable to perform activities of daily living, or that he requires personal monitoring for safety. To the contrary, his VA treatment records and VA examination reports note that the Veteran's functioning can be described as satisfactory as he is able to engage in generally normal conversation and can manage his financial affairs. In addition, total social and/or occupational impairment has not been demonstrated as he has been able to maintain a 45-year marriage to his wife, and prior to his 2011 retirement, he maintained employment. Instead, the Board finds that the Veteran's PTSD has been manifested by symptoms that are of the type, extent, frequency, and/or severity that is indicative of occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. In this regard, throughout the appeal period, the Veteran has endorsed thoughts of extreme anger, irritability, and near-constant depression, and has notably reported that he regularly experiences panic attacks, where his chest pounds "so hard it is fluttering." In addition, though the Veteran has mostly denied suicidal and homicidal ideation, his wife has said that the Veteran has talked of suicide, and at his December 2015 VA examination, he expressed intermittent feelings of passive suicidal ideation. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.) Moreover, the record contains evidence that the Veteran has suffered in maintaining effective work and social relationships and has tended to isolate himself in both personal and professional settings. Prior to his retirement, the Veteran reported at his January 2011 VA examination that he became easily irritated at work, felt down and depressed about 80 percent of the time, and could not stay at a job for more than two to three years at a time. With respect to his marriage, he described his relationship with his wife as "like roommates," and said it had been that way since 2001. Moreover, he has no contact with any of his four siblings. He reported having two close friends but engaging in no social activities. He has consistently stated that the only time he has felt happiness is when he spends time with his grandnephew. The Board notes that, in analyzing this claim, the symptoms identified in the General Rating Formula for Mental Disorders have been considered not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms to warrant a higher rating for PTSD. See Mauerhan, supra. While the Veteran has not demonstrated each and every symptom associated with the 70 percent rating criteria since the beginning of the appeal period, the Board emphasizes that not all of the symptoms must be shown to warrant a higher rating. The Board further finds that the GAF score of 59 assigned during the relevant period does not provide a basis for assigning a higher rating. As noted above, a score within the range of 51 to 60 represents 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). In assessing the severity of his PTSD, the Board has considered the competent lay assertions regarding the symptoms the Veteran has experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the criteria needed to support a higher rating require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support the assignment of a higher rating at any point during this appeal than 70 percent. The Board has further considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's PTSD; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning any staged rating for this disability is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD symptoms more nearly approximate the criteria under Diagnostic Code 9411 for a rating of 70 percent, but no higher, for the entire period on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130. ORDER A 70 percent rating for PTSD for the entire appeal period is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs