Citation Nr: 18140505 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 12-20 768 DATE: October 3, 2018 ORDER Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to April 8, 2015, and in excess of 70 percent thereafter, is denied FINDINGS OF FACT 1. Prior to April 8, 2015, PTSD has not been manifested by occupational and social impairment with deficiencies in most areas at any point during this part of the appeal period. 2. Since April 8, 2015, PTSD has not been manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD prior to April 8, 2015, and in excess of 70 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to February 1994. In February 2015, the Board remanded the claim for further development. In July 2017, the Board denied the claim. The Veteran appealed the July 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (JMPR) and remanded the claim back to the Board, which was granted by the Court. The parties agreed that the Board erred when it denied the claim in the face of incomplete compliance with earlier remand instructions. Specifically, the Board failed to comply with its February 2015 remand instructions to obtain an examination “to be conducted, if possible, by a vocational rehabilitation specialist to determine the functional limitations imposed by all of his [the Veteran’s] service-connected disabilities, particularly with respect to his ability to obtain and maintain employment.” The parties found that while the Veteran was provided separate medical examinations regarding his service-connected disabilities, none of the medical examinations were conducted by a vocational rehabilitation specialist, therefore VA failed to comply with the February 2015 Board remand instructions. The parties agreed that a remand was warranted for the Board to ensure compliance with those instructions. The Board finds that compliance with the February 2015 Board remand instructions referred to in the May 2018 JMPR are not necessary to adjudicate the claim on appeal. These particular February 2005 remand directives relate to the Veteran’s claim for entitlement to a total disability evaluation based on individual unemployability (TDIU). Specifically, the directives ask for a vocational rehabilitation specialist to determine the functional limitations imposed by all of [the Veteran’s] service-connected disabilities. Since the February 2015 Board remand, the Veteran has withdrawn his claim for a TDIU in a July 2017 statement, therefore compliance with such directives would be unnecessary. To the extent that the February 2018 remand directives relate to the Veteran’s claim for an increased rating of his service-connected PTSD on appeal, the Board finds that there was substantial compliance to decide the claim. The Veteran has been afforded VA examinations during the period on appeal in which examiners have discussed functional/occupational impairment (i.e. ability to obtain and maintain employment) due to the service-connected PTSD. Therefore, the Board finds that the applicable terms of the May 2018 JMPR have been met and may proceed with appellate review. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to April 8, 2015, and in excess of 70 percent thereafter. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Where, as here, the ratings appealed are the initial ratings assigned with grants of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2017). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is assigned for PTSD manifested by 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 disability rating requires 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); or inability to establish and maintain effective relationships. A 100 percent disability 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; or memory loss for names of close relatives, own occupation, or own name. A Global Assessment of Functioning (GAF) score is a quantifiable assessment of overall functioning used by mental health clinicians that reflects an individual’s “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (both citing the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32 (1994)). The Veteran’s records include evaluations based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes GAF scores, and the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5), which does not use GAF scores. The Board notes that the use of the GAF scale has been abandoned in the DSM-5 because of, among other reasons, “its conceptual lack of clarity” and “questionable psychometrics in routine practice.” See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). In this case, however, DSM-IV was in use during portions of the appeal period when relevant medical entries of record were made. The United States Court of Appeals for Veterans Claims (Court) has held that the use of GAF scores to assign disability ratings in instances where the DSM-5 applies, is inappropriate. See Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet. Claims LEXIS 202, at *1, *9 (Vet. App. Feb. 23, 2018). However, the Court acknowledged that the Secretary did not intend the provisions of this final rule to apply to claims that were pending before the Board (certified for appeal) on or before August 4, 2014. Id. The current Veteran’s claim was certified for appeal to the Board in April 2014, therefore the provisions are not applicable and the GAF scores assigned remain relevant for consideration in this appeal. GAF 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 for Mental Disorders, Fourth edition, p. 46 (1994). 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. at p. 47. 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. The Court in Mauerhan v. Principi stated that “when evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran’s symptoms affecting his level of occupation and social impairment.” See Mauerhan, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational and social impairment equivalent to that which would be caused by those listed in the rating criteria the appropriate equivalent rating will be assigned. Id. at 442. The Veteran contends that his PTSD should be rated higher than the assigned disability ratings of 50 percent prior to April 8, 2015, and of 70 percent thereafter, under 38 C.F.R. § 4.130, DC 9411. Prior to April 8, 2015. During this period on appeal, the Veteran has reported difficulty sleeping including tossing and turning at night and that he hits his wife in his sleep; he also asserted that he experiences outburst of anger for no reason, constant depression, that his problems affected his productivity, and that his anxiety and panic attacks occasionally caused him to leave work. The Veteran also reported that he isolated himself from others at work and that this behavior made it hard on his wife, particularly at family functions. During the December 2010 VA PTSD examination, the Veteran reported that he had been married to his current wife for over four years after being married to his first wife for 15 years. The Veteran indicated that he generally declined invitations to accompany his wife to social events. He reported having five adult children and one 15-year-old daughter with whom he maintained only fair relationships due to the Veteran’s emotional detachment, difficulty showing affection and irritability (e.g. has “disagreements” with the adult children). The Veteran did not have any close friends, avoided crowds, and generally retreated to be alone in his room during visits from family or friends (including his children), however reported close familial relationships with his mother and his eight siblings. The examination report reflects that the Veteran’s social functioning was impacted by PTSD symptoms including anxiety, depression, nervousness, irritability, feeling on edge, occasional worry thoughts, sleep disturbance, memory problems, sadness, tearfulness, social withdrawal, fatigue/loss of energy, feeling helpless and worthless, emotional detachment, social isolation and restricted range of affect. The Veteran reported having a short attention span, being easily distracted, and difficulty completing projects due to difficulty sustaining focus at work and his occupational functioning was impacted by his PTSD symptoms including verbal outbursts and anxiety. The Veteran was noted to be alert, oriented to person, place, and time, and cooperative, with normal and clear speech, and his thought process was goal directed and without audio or visual hallucinations, and suicidal or homicidal ideation. During the examination, the Veteran responded in a logical manner with no inappropriate behavior and had “ok” maintenance of personal hygiene and other basic activities of daily living. He had a problematic memory and it was noted that he forgets to do tasks at times. The Veteran reported having two episodes of panic attacks in his lifetime. The Veteran was assigned a GAF score of 70. A June 2011 VA medical record reflects that the Veteran reported having an incident at work where his supervisor cussed him out in front of his co-workers. The Veteran reported that he needed to leave work because he “was afraid of what [he] might do” and wanted someone to talk to. The Veteran indicated that he stayed out of work for three days following the incident. The psychologist noted that the Veteran appeared open and was engaged in therapy and denied suicidal or homicidal ideation. The examiner described the Veteran’s speech as spontaneous, fluent, and slightly increased in pressure and volume; and thought process was sequential. The Veteran denied perceptional disturbances, paranoid or frank delusional thinking and his cognition appeared grossly intact. July 2012 VA medical records show that the Veteran stated that his mood had been more irritable and that he had been “snappy” with people at home and at work. He discussed his stress as a custodian at the Post Office and reported that he had to leave work sometimes to avoid losing his temper. The Veteran reported having bad dreams more frequently, which fluctuated from a few times week to a few times a month. His mood was described as “depressed sometimes” and “upset”, but denied hopelessness and suicidal and homicidal ideation. A GAF score of 55-60 was assigned. In August 2012, the Veteran presented to VA unscheduled and stated that he left work at the Post Office early that day because he was angry at a co-worker. The treatment provider noted that the Veteran was polite and cooperative, his affect restricted, and in an “upset” mood. The Veteran denied any suicidal or homicidal ideation and was assigned a GAF score of 55. In an October 2012 VA treatment record, the Veteran stated that the combination of medication and group therapy was helping him deal with stress and to interact with others. The Veteran reported that he was learning skills and getting support from the group and felt that he was functioning better at home and at work although he experienced difficulty sleeping about once a week. The Veteran was assigned a GAF score of 60-65. A January 2013 VA medical record reflects that the Veteran continued to “do well” and that he stated his co-workers have commented on his improved mood. The Veteran reported that his anger at home had improved and his wife had noticed. He stated that he continued to benefit from skills discussed in group therapy and felt support from attending group sessions. The Veteran was noted to have grown children who lived out of state and a 17-year-old daughter that visited regularly. The psychiatrist indicated that the Veteran was pleasant, smiled more, had improved grooming, with no hopelessness or suicidal ideation. The Veteran described his mood as, “good as long as I take my medication and go to group.” A GAF score of 60-65 was assigned. In June 2014 VA medical record, the Veteran stated that he continued to do well and that the medicine and counseling helped. The Veteran reported that he had not gotten angry in the past at home or at work and specifically, “I used to fly off all the time.” The Veteran’s 4 and 7-year-old grandchildren were staying with him and it was working out well. He was noted to be pleasant with brighter affect in a “better” mood. The weight of the evidence demonstrates that prior to April 8, 2015, the criteria for a disability rating in excess of 50 percent for the Veteran’s service-connected PTSD have not been met. Specifically, the Veteran’s PTSD has not been manifested by symptomatology more nearly approximating 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); or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The Board has fully considered the frequency, severity, and duration of all of the Veteran’s psychiatric symptoms with respect to their effect on other areas of overall occupational and social functioning. 38 C.F.R. § 4.126(a). The Veteran was assigned a GAF score of 70 during December 2010 VA examination and scores between 55 and 65, as indicated above, prior to January 2013. 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). See Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, at p. 4. The symptomology above based on the GAF scores alone would most closely reflect the criteria for in a disability rating of 50 percent, based on the factors listed in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. However, the determination of a mental health evaluation should be based on all of a veteran’s symptoms affecting his level of occupation and social impairment.” See Mauerhan, 16 Vet. App. at 442-43. While the Board has considered the GAF scores discussed, a thorough review of the symptomology of the Veteran’s PTSD during the appeal period prior to April 8, 2015 still does not more closely reflect the level of symptomatology that falls under a 70 percent rating. For example, the symptoms exhibited by the Veteran are contemplated by the 50 percent disability rating in effect, which encompasses 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. The preponderance of the evidence is against a finding that prior to April 8, 2015, the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. The Veteran consistently denied suicidal or homicidal ideation, delusions, and hallucinations. The Veteran has consistently shown orientation in all spheres, an ability to perform activities of daily living including maintaining minimal personal hygiene and appropriate behavior. In addition, the December 2010 VA examiner documented no gross impairment in thought process or communication and that the Veteran was cooperative. The Veteran maintains relationships with his wife, his daughter, his mother, his eight siblings, and two grandchildren who live with him, which he specifically stated was “working out well.” This is evidence against a finding of the inability to establish and maintain effective relationships. Furthermore, the Veteran had been consistently participating in PTSD group counseling and indicated that he continued to benefit from skills discussed in group therapy and felt support from attending the support group. The Veteran was working full time at the Post Office during this part of the appeal period, which, along with his relationships, is against a finding that he has deficiencies in most areas. Medical records are unremarkable for any risk of self-harm and the Veteran has not been hospitalized for mental health. The record does not show that the Veteran has any intent of self-harm or harm to others. Such is evidence against a finding of deficiencies in family relations. Therefore, in consideration of the frequency, severity, and duration of the Veteran’s symptoms and their effect on the Veteran’s overall occupational and social functioning, the Board finds that the Veteran’s PTSD does not manifest in occupational and social impairment with deficiencies in most areas and a 70 percent disability rating is not warranted prior to April 8, 2015. Since April 8, 2015. The Veteran was most recently provided a VA examination in April 2015. The examiner diagnosed PTSD and major depression, recurrent, moderate and assigned a GAF score of 60. The Veteran reported that he had been married for eight years and his relationship with his wife was “okay.” He had six adult children and nine grandchildren, whom he saw “somewhat.” The Veteran indicated that he did not have any friends, social activities, or recreational interests or hobbies but every once in a while, he would take a vacation with his wife. The Veteran continued to work full-time at his maintenance job for the Post Office for the last 20 years. He missed work “at times” for doctor’s appointments and sometimes he “just doesn’t feel like going to work.” He reported that his job was very stressful and described a verbal altercation with a co-worker which resulted in one-year probation but he indicated he did not plan to retire any time soon. The examiner wrote that the Veteran experienced symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationship, difficulty in adapting to stressful circumstances, including work or a work like setting, and an inability to establish and maintain effective relationships. Beck Depression Inventory and Beck Anxiety Inventory tests were administered which indicated that the Veteran’s depression and anxiety were severe. The Veteran was noted to attend group therapy and was receiving psychiatric treatment and had never been psychiatrically hospitalized nor attempted to harm himself. The examiner indicated that “occupational and social impairment with reduced reliability and productivity” best summarized the Veteran’s level of occupational and social impairment regarding his mental diagnosis, which is the criteria for a 50 percent rating. While the adjudicator makes the determination of what evaluation is warranted for the service-connected PTSD, the examiner’s conclusion that the Veteran’s PTSD was best summarized by the criteria described under the 50 percent evaluation is evidence against a finding that the Veteran’s psychiatric disorder causes total occupational and social impairment. The examiner also found that the Veteran was capable of managing his own financial affairs. The weight of the evidence demonstrates that since April 8, 2015, the criteria for an increased disability rating in excess of 70 percent for the Veteran’s service-connected PTSD have not been met. Specifically, the Veteran’s PTSD has not been manifested by symptomatology more nearly approximating total occupational and social impairment, due to such symptoms as: gross impairment in thought process 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 for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The Veteran has relationships with his family members, which affirmatively shows that he does not have total social impairment. The Veteran is working full time at the Post Office, which affirmatively shows that he does not have total occupational impairment. The Board has fully considered the frequency, severity, and duration of all of the Veteran’s psychiatric symptoms with respect to their effect on other areas of overall occupational and social functioning. 38 C.F.R. § 4.126(a). The Veteran has not shown suicidal or homicidal ideation, delusions, and hallucinations. The symptoms checked by the April 2015 examiner reflect that the orientation in all spheres, an ability to perform activities of daily living including maintaining minimal personal hygiene, appropriate behavior, intact memory processes, and no gross impairment in thought process or communication. In addition, the Board has considered the Veteran’s risk of self-harm, the persistent danger of which VA generally considers indicative of a 100 percent disability evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017); 38 C.F.R. § 4.130. The VA examination reports and clinical records are unremarkable for any risk of self-harm. The record reflects that the Veteran was able to maintain numerous interpersonal relationships including with his longtime wife and his children and grandchildren. The Veteran also attended PTSD support groups. This is evidence against a finding of total social impairment. Although the Veteran reported that his job was stressful, that he missed work at times, and that he had some difficulty with co-workers, he continued to work the maintenance job at the Post Office that he has had for the previous 20 years. The Veteran specifically indicated that he did not plan to retire any time soon. Workplace difficulty and stress would not be indicative that his PTSD caused total occupational impairment since April 8, 2015. Furthermore, in July 2017, the Veteran withdrew his claim for a total disability evaluation based on individual unemployability (TDIU), which is suggestive that the Veteran does not have total occupational impairment. Therefore, in consideration of the frequency, severity, and duration of the Veteran’s symptoms and their effect on the Veteran’s overall occupational and social functioning, the Board finds that the Veteran’s PTSD does not manifest in total occupational and social impairment at any point in the appeal period since April 8, 2015 and a 100 percent disability rating is not warranted. The Veteran’s PTSD symptoms are fully contemplated in a 70 percent rating, which represents occupational and social impairment with deficiencies in most areas. For all the above reasons, the Board finds the preponderance of the evidence weighs against entitlement to an increased disability rating in excess of 50 percent for PTSD prior to April 8, 2015, and in excess of 70 percent thereafter. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel