Citation Nr: 1805866 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-26 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In March 2014, the Veteran appeared at a Board hearing before the undersigned. A transcript of the hearing is associated with the record. In June 2015, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) to afford the Veteran another VA examination and to obtain outstanding treatment records. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) FINDING OF FACT The Veteran's PTSD is productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for the assignment of an evaluation in excess of 50 percent for PTSD are not 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 FINDING AND CONCLUSION 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). As such, the case is ready to be decided on its merits. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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 (2017). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's PTSD is currently rated as 50 percent disabling pursuant to Diagnostic Code 9411. 38 C.F.R. § 4.130. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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, warrants a 50 percent rating. Id. Under these criteria, the next higher rating of 70 percent rating is warranted where the disorder is manifested by 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 that is 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, an inability to establish and maintain effective relationships. Id. The highest possible rating of 100 percent rating requires 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; and, memory loss of names of close relatives, own occupation or own name. Id. 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 mere examples of the type and degree of symptoms, or their effects, which 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 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 the claimant's social and work situation. Id. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to symptoms provided in that Diagnostic Code. Id. at 443. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-V). Id. If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to what would be caused by the symptoms listed in a particular diagnostic code, the appropriate, equivalent rating will be assigned. Id. One factor for consideration is the Global Assessment Functioning (GAF) score, which is based on a scale reflecting the "psychological, social, and occupational functioning in 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) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed., p. 32.)). A GAF score of 61-70 indicates "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. Id. GAF scores ranging from 51 to 60 reflect more 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). Id. GAF scores ranging from 41 to 50 reflect 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). Id. Further, when evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. In February 2009, the Veteran was afforded a VA PTSD examination. The VA examiner diagnosed the Veteran with PTSD and vascular dementia. The Veteran endorsed good relationships with his wife, children, grandchildren, and a friend. He spent his time watching television, working in his workshop, fishing, and attending his grandchildren's sporting events. The Veteran indicated that he was anxious most of the time. His thought process, thought content, psychomotor activity, and speech were unremarkable. He was cooperative, friendly, relaxed, and attentive during the examination. He was appropriately attired. The Veteran did not have hallucinations, delusions, panic attacks, ritualistic behavior, homicidal thought, suicidal thoughts, or episodes of violence. He was unable to maintain minimum hygiene; however, the Veteran was able to engage in his activities of daily life with his PTSD. After 4 hours of sleep, he would wake up and walk around before returning to bed. He retired after suffering a stroke. The VA examiner concluded that the Veteran's PTSD caused mild to moderate limitations in social and occupational functioning and assigned a GAF score of 61. He elaborated that the Veteran's dementia caused severe limitations in functioning and warranted a GAF score between 40 and 45. In December 2012, the Veteran was afforded another VA examination to determine the severity of his PTSD. The VA examiner diagnosed the Veteran with PTSD and vascular dementia. He indicated that it was possible to differentiate the symptoms that were attributable to each diagnosis. The Veteran's memory problems and aphasia were related to his cognitive disorder and his anxiety, depression, angry mood, and limitations in social interaction were related to his PTSD. His mental health diagnoses were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran came to the interview with his wife. He was open, cooperative, and pleasant. He was appropriately attired. He had trouble remembering things and deferred to his wife. His insight and judgment were intact. Additionally, his memory for remote, recent, and immediate events was intact. The Veteran indicated that it was difficult to watch movies on television that were about the military. He avoided crowds and loud noises. His main problem was nervousness and shaky hands. The VA examiner concluded that it was "a sense of giving him the benefit of the doubt that his PTSD is still at about the same level". He indicated that it was somewhat difficult to assess all of the Veteran's symptoms because of his difficulty with memory and expression. In October 2015, the Veteran underwent his most recent VA examination to determine the severity of his PTSD. The VA examiner confirmed the diagnoses of PTSD and vascular dementia. He was able to differentiate the symptoms attributable to each diagnosis. His vascular dementia symptoms were related to memory. He was generally able to remember things well, such as who he is, what is going on, where he is, his wife's name, his children, grandchildren, what he did on the previous day, how to read, and simple arithmetic. His conversation was adequate and appropriate. He was appropriately attired. The Veteran's mental health diagnoses were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran denied any mental health treatment since his December 2012 VA examination. His PTSD symptoms included depressed mood, anxiety, and chronic sleep impairment. He enjoyed relationships with family members. Watching military themed movies or television programs was difficult for the Veteran. He spent most of his time watching television, driving his four wheeler around, and mowing the lawn. The Veteran's treatment records are consistent with the VA examination findings. The Board finds that the weight of the evidence is against a 70 percent evaluation for the Veteran's PTSD. The October 2015 and December 2012 VA examiner found that the Veteran's mental health diagnoses were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The February 2009 VA examiner indicated that the Veteran's PTSD was mild to moderate. The Veteran is not service-connected for vascular dementia. The VA examiners differentiated the symptoms attributable to each diagnosis and found that the Veteran's service-connected PTSD caused depression, anxiety, chronic sleep disturbance, and angry mood. At each examination, the Veteran was appropriately attired and engaged in appropriate conversation. The Veteran's GAF score for his PTSD of 61 indicates mild symptomatology. In order to receive a 70 percent evaluation the evidence needs to demonstrate that the Veteran's PTSD is manifested by 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 that is 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, an inability to establish and maintain effective relationships. Throughout the appeal period, the Veteran has denied suicidal ideation, obsessional rituals, panic attacks, impaired impulse control and has been able to engage in the activities of daily living. He has also maintained relationships with a friend and his family members. Lastly, the examination reports all indicate that the Veteran's PTSD is productive of mild to moderate symptoms. This evidence is against a higher 70 percent disability rating during the appeal period, as the evidence demonstrates occupational and social impairment (the criteria for a 50 percent evaluation). 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his PTSD as the conclusions of the VA examiners were based upon the Veteran's lay statements, a review of the record, clinical findings, and their medical expertise. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Based on the foregoing, an evaluation in excess of 50 percent for PTSD is denied. 38 C.F.R. § 4.130, Diagnostic Code 9411. ORDER An evaluation in excess of 50 percent for PTSD is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs