Citation Nr: 1806307	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  10-03 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel






INTRODUCTION

The Veteran had active service from July 1990 to February 1992 and from February 2003 to October 2003.

This matter was originally on appeal from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Huntington, West Virginia.

The case was remanded by the Board in March 2016 and June 2017 for additional development. Said development having been completed, the case has been returned to the Board for adjudication. 


FINDING OF FACT

For the entirety of the appeal period, the Veteran's service-connected PTSD more nearly approximates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as irritability, depressed mood, chronic sleep disturbances, inability to establish and maintain effective relationships, panic attacks, and social isolation. Total occupational and social impairment has not been shown at any time during the appeal period.


CONCLUSION OF LAW

The criteria for a rating in excess of 70 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.130, Diagnostic Code 9411 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

VA must assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which part, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

Notice to a claimant should be provided at the time or immediately after VA receives a complete or substantially complete application for benefits. 38 U.S.C. § 5103 (a) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The Board finds that the Veteran has been provided adequate notice in response to the claims. The record shows that he was mailed a letter in July 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence, as well as providing him appropriate notice with respect to the disability rating and effective date elements of the claim. 

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 Veteran was provided a VA examination with respect to the claim for a psychiatric disability. The examination report adequately provides the findings necessary to a resolution to the appeal. The Board notes that the Veteran's representative asserted that the last VA examination concerning PTSD occurred more than 2 years ago and therefore the findings are too old for consideration. However, neither the representative nor the Veteran has contended that the symptomology of PTSD has worsened since 2015, and a review of the medical evidence since 2015 does not show the condition has worsened since that time. Therefore, the Board finds that a remand for an additional VA examination is not warranted.

The Board notes that the Board has previously remanded this matter for the Veteran to provide the required releases in order to obtain private psychiatric treatment records identified by the Veteran and provided the requested forms to the Veteran in June 2017. The Veteran did not respond to the request nor submit the private treatment records requested. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Increased Rating

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). 

When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating 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 rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b) (2017).

The Veteran's service-connected PTSD is currently assigned a 70 percent rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A General Rating Formula for evaluating psychiatric impairment other than eating disorders contains the actual rating criteria for evaluating the Veteran's disability.

Pursuant to the General Rating Formula for Mental Disorders, 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 work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2017).

A rating of 100 percent is warranted 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2017).

The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but to serve only 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). 

VA considers psychiatric disabilities based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2017). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual.

The Board notes that the newer DSM-5 has now been officially released.  An interim final rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-5. However, the provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. As the Veteran had perfected his increased-rating claim for PTSD at that time, the Board will thus evaluate his claim using the DSM-IV, including analysis of his assigned GAF scores.

GAF scores ranging between 41 and 50 are assigned when there are 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). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th. ed. (1994).

A May 2008 letter from the Veteran's private treating psychiatrist reported that he had been treating the Veteran since 2004, when he was diagnosed with PTSD. Symptoms were noted as insomnia, nightmares, anxiety, panic attacks, depressed mood, flashbacks, intrusive thoughts, hypervigilance, poor concentration and short-term memory, poor impulse and anger control, and social withdrawal, all associated with his PTSD. A GAF of 45 was assigned. The Veteran was noted to receive supportive psychotherapy and pharmacotherapy for his psychiatric disorder. The private psychiatrist reported that the Veteran had shown some improvement with this treatment regimen. However, due to the severity and chronicity of his PTSD, he should be considered as permanently and totally disabled.

An October 2008 letter is of record from the United States Office of Personnel Management (OPM) to the Veteran noting that he had been found to be disabled for his position as a Primary Care LPN due to chronic PTSD. 

A December 2008 VA PTSD examination reported showed that the Veteran reported becoming angry and verbally abusive towards his girlfriend and noted that his relationships with other family members were problematic. The Veteran reported that he was distant from his mother, that he had threatened physical harm to his father, and that his sister did not want to be around him for more than a couple of hours. The Veteran also reported that he had no social relationships and that he spent the majority of his time watching movies and video games. The examiner noted that the Veteran's psychosocial functioning at that time appeared to be fairly poor, that he was involved in a volatile relationship, and that his relationships with all other family had deteriorated. The examiner noted that problematic family relations appeared to be related to irritability, social distancing, and anger outbursts. The examiner noted that the Veteran's social impairment was likely related to impaired abstract thinking and social distancing. Psychiatric examination revealed circumstantial and tangential thought process, sleep impairment, poor impulse control, and an inability to appropriately interpret the phrase, "People who live in glass houses, should not throw stones." The Veteran reported that he had recurrent thoughts of suicide occurring on a weekly basis with no plan or intent to harm himself. The examiner noted, however, that the Veteran's impulsivity placed him at a chronic increased risk for suicidal behaviors. The examiner noted that the severity of PTSD symptoms based on psychometric data was severe. The validity of psychological test results was noted to be "probably valid." The examiner noted that the Veteran reported experiencing extreme severity of nearly all symptoms assessed and commented that if such symptoms were actually experienced extremely, they would most likely be highly observable during the assessment. The examiner, however, noted that because the Veteran had demonstrated substantial difficulties with linear thought and abstract thinking, it may have made it more difficult for him to view his experiences on a continuum as was required by the testing. As such, the examiner found that the Veteran's answers may have reflected some over-reporting of experiences. 

With respect to his occupational functioning, the Veteran reported that he was chronically tardy to work, had missed at least a month of work in the prior year, and had difficulty concentrating during non-routine tasks that resulted in forgetting to complete tasks. The Veteran reported positive relationships with most coworkers and supervisors except for two with whom he engaged in verbal altercations. The examiner noted that occupational impairments were related to motivational disturbance, anxiety, desire to isolate, difficulty concentrating, irritability, anger outbursts, impaired abstract thinking, and nonlinear thought processes. The examiner noted that mild concentration impairment, significant impairment of abstract thinking ability, and non-linear thought processes were manifested during the assessment. The Veteran was diagnosed as having PTSD; and a GAF of 45 was assigned due to the presence of moderately-severe to severe symptoms. The examiner found that the PTSD symptoms resulted in reduced reliability and productivity. 

A September 2011 letter from a private mental health nurse practitioner noted that the Veteran had been under her care since August 2011 and that his symptoms included insomnia, nightmares, anxiety, panic, anger, social isolation and intrusive thoughts, hypervigilance, and poor impulse control. It was recommended that due to the chronicity and severity of his psychiatric illness, he remain permanently and totally disabled. 

An October 2015 VA examination shows that the Veteran reported impaired sleep, nightmares, irritability, severe anger and isolation, and hallucinations. The examiner noted that the Veteran's presentation was not consistent with psychosis, and he had difficulty explaining the hallucinations. The examiner noted that the Minnesota Multiphasic Personality Inventory-2 was administered but that the symptom profile was invalid due to gross over-reporting of symptoms. The examiner noted that the Veteran's level of impairment was occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner specifically noted that despite the Veteran's report of having been "medically retired due to PTSD," he also reported excellent job performance with no issues from PTSD symptoms, and the examiner concluded that there was no indication of occupational impairment due to PTSD. The examiner further noted that the Veteran's attitude was cooperative, and his thought process and content were unremarkable. Insight and judgment were adequate, and speech was within normal limits, with no perceptual abnormalities reported or observed. The Veteran's mood was noted as depressed, but there was no evidence of flattened affect, difficulty in understanding complex commands, impairment of short or long-term memory, suicidal ideation; obsessional rituals which interfere with routine activities; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 

The examiner noted that he Veteran carried a historical diagnosis of PTSD but that upon interviewing him, he did not endorse the full criteria for PTSD and there were multiple clinical indicators of symptom exaggeration. The examiner also noted that the Veteran's test results indicated extreme over-reporting of symptoms and functional impairment and that if this were an initial examination, the examiner would have been unable to offer any diagnosis because of the extent of over-reporting. The examiner was unable to assign a GAF score due to the over-reporting of symptomatology.

A review of VA mental health treatment records from 2017 show that the Veteran continued to receive treatment from a private psychiatrist and was also working to improve his social functioning.

Based on a review of the evidence, the Board finds that the Veteran's PTSD is appropriately rated as 70 percent disabling. In continuing the 70 percent rating for the Veteran's PTSD, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, by 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 in the rating schedule to warrant the assigned rating for an PTSD. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

During the appeal period, the Veteran's PTSD has been manifested by chronic sleep impairment, irritability, depression, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board finds that this symptomatology is consistent with occupational and social impairment, with deficiencies in most areas, the criteria for a 70 percent rating. The Board recognizes that the symptoms noted in the rating schedule are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 70 percent rating are demonstrated throughout the appeals period. 

Moreover, the Board finds that a rating higher than 70 percent is not warranted for any part of the appeal period. The evidence shows that the Veteran has maintained most of his independent functionality throughout the appeal period. The evidence of record does not show symptomatology commensurate with a 100 percent schedular rating, demonstrating total occupational and social impairment. The Veteran has not demonstrated total social impairment. The Board notes that the Veteran has been awarded a total rating based on individual unemployability (TDIU) due to his service connected disabilities, to include PTSD, which reflects the severity of his symptoms in preventing him from gaining and maintaining employment. However, there is no evidence that the Veteran is totally both occupationally and socially impaired. Here, the Board notes that the Veteran reports living with his wife who is also his caregiver, and is socially active through the internet with other Veterans. Additionally, he has never been found to not be able to conduct activities of daily functioning despite the severity of his PTSD. Further, despite the Veteran's report of having retired due to PTSD, the October 2015 VA examiner specifically noted that the Veteran described exemplary work performance at that time, and found him to have no clinically significant occupational impairment attributable to PTSD. The Board also notes that at no time during the appeal period has the Veteran showed symptoms of such severity as gross impairment in thought processes, persistent delusions or hallucinations; grossly inappropriate behavior; a persistent danger hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

The Board further notes that a GAF score of 45 was assigned during the appeal period, but that this alone does not support the assignment of any higher rating during the appeal. According to the DSM-IV, GAF scores ranging from of 41 to 50 indicates 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). 

In this case, the assigned GAF scores are indicative of serious symptoms; this is reflected in the Veteran's current rating of 70 percent. A GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue. Rather, they must be considered in light of the actual symptoms of the Veteran's disability, which provide the primary basis for the rating assigned. 38 C.F.R. § 4.126 (a) (2017). In this case, the Board finds that the extent and severity of the Veteran's actual PTSD symptoms reported during the entire appeal period are suggestive of occupational and social impairment with deficiencies in most areas, as contemplated in the assigned 70 percent rating, regardless of the GAF scores. A review of the Veteran's VA treatment records simply does not suggest that his symptoms are of the frequency and severity of total social and occupational impairment. The Board finds that the descriptions of the Veteran's symptomatology noted during mental evaluations are the most accurate guide to identifying the severity of the psychiatric condition.

Consideration has been given to assigning staged ratings. However, the Board finds that at no time during the period in question has the disability warranted higher schedular ratings than those assigned because total social and occupational impairment due to psychiatric symptomatology has not been shown during the period under review. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds, as discussed above, that the Veteran's PTSD symptomatology does not represent the criteria required for a 100 percent rating at any point during the appeal period. 

In reaching the above conclusions, the Board has considered the Veteran's and his spouse's statements regarding the severity and frequency of psychiatric symptoms. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, even with consideration of the Veteran's statements, the VA examination reports and other probative evidence of record have consistently shown that the Veteran's service-connected psychiatric disability does not result in total social and occupational impairment at any point during the appeal period. The Board finds that those reports and the treatment records are the most persuasive evidence of record. Thus, to the extent that the Veteran asserts that his service-connected PTSD is worse than evaluated, the Board points out that the predominant findings during clinical examinations and treatment reports over the years do not establish that he has more severe disability in this respect. 

Accordingly, the preponderance of the evidence is against the assignment of a rating greater than 70 percent for PTSD, and the claim is denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Entitlement to a rating in excess of 70 percent for PTSD is denied.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs