Citation Nr: 18140608 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 10-18 519 DATE: October 3, 2018 ORDER Entitlement to a disability rating in excess of 30 percent prior to April 1, 2011 and 70 percent thereafter for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Prior to April 1, 2011, the Veteran’s service-connected PTSD resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; reduced reliability, deficiencies in most areas. 2. Beginning April 1, 2011, the Veteran’s service-connected PTSD has resulted in no more than occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 30 percent for PTSD prior to April 1, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, DC (DC) 9411. 2. The criteria for a rating in excess of 70 percent for PTSD from April 1, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1998 to June 1998, from October 2003 to April 2005, and from October 2007 to March 2009. He also served in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision. In February 2012, a Travel Board hearing was held before a Veterans Law Judge (VLJ); a transcript is associated with the record. That VLJ has since left the Board. A January 2018 letter informed the Veteran that the VLJ had left the Board and afforded him the opportunity to have another hearing before a different VLJ. As no response has been received from the Veteran, the Board will proceed with adjudication of the appeal. The undersigned has read the transcript. The Board remanded the claim in December 2014 for additional development. The record reflects substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321 (2017); see generally, 38 C.F.R. § Part IV (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2017). The Veteran’s service-connected PTSD is currently evaluated as 30 percent disabling prior to April 1, 2011, and as 70 percent disabling thereafter. He asserts that the currently assigned evaluations do not adequately reflect the severity of his disability. Therefore, he seeks an increased rating for both periods. The Veteran’s PTSD is currently rated under 38 C.F.R. § 4.130, DC 9411. Under the applicable rating criteria, a 30 percent disability rating is warranted where 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, GAF scores from 61 to 70 reflect mild symptoms or some difficulty in social or occupational functioning, 51 to 60 reflect moderate symptoms or some difficulty in social or occupational functioning, 41 to 50 reflect serious symptoms or any serious impairment in social or occupational functioning, and 31 to 40 reflect some impairment in reality testing or communication. See 38 C.F.R. § 4.130. Turning to the evidence of record, the Veteran was afforded a VA examination in October 2009. The Veteran reported being angry and irritable at home due to stress. He says he functions well at work. He endorsed some degree of social withdrawal and sleep disturbance, but denied hypervigilance and excess startle reaction. Following examination, the examiner noted no panic, paranoia, hypervigilance, or suicidal ideation. The Veteran’s grooming, hygiene, speech, and communication were noted to be appropriate. The Veteran was diagnosed with PTSD with a GAF of 60. The Veteran received treatment at the Fayetteville VA Medical Center (VAMC) in September 2010. Following examination, the attending physician noted the Veteran was pleasant, cooperative, and casually dressed. His thought process was coherent, logical and goal directed. The Veteran denied suicidal and homicidal ideations, with no apparent delusions, hallucinations, or paranoia. A GAF of 61 was assigned. In an April 2011 VA treatment note, the Veteran reported crying all week because he makes everybody hate him. He stated he is tired of crying and “wants to die.” The Veteran was afforded another VA PTSD examination in December 2012. The Veteran was noted as being married, employed, and enjoyed hunting and fishing. The Veteran stated he had no friends and did not want any. Following examination, the examiner found the PTSD more nearly approximated occupational and social impairment with reduced reliability and productivity. Symptoms attributable to the Veteran’s PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining effective relationships. The examiner assigned a GAF of 54. In a February 2013 mental health note, the physician noted the Veteran was clean and neat in appearance. The Veteran’s thought content was logical and goal directed. There was no indication of suicidal or homicidal ideation. His insight appeared fair and his judgment intact, with no apparent gross deficits in cognitive functioning, unusual mannerisms, or observable psychomotor problems. In a June 2014 psychiatric evaluation, the Veteran admitted issues falling asleep and some nightmares. He denied suicidal or homicidal ideation, and denied substance abuse. The attending psychiatrist noted the Veteran was adequately dressed, groomed, cooperative, alert, and oriented. His thought process was linear, goal directed, and reality based. He had no hallucinations, misperceptions, or illusions. He was alert to person, place, date, and situation. In a May 2015 mental health treatment note, the Veteran reports being short-tempered, having nightmares, and fluctuating appetite. He denied any suicidal or homicidal ideation. The attending psychiatrist noted the Veteran was adequately dressed, groomed, cooperative, alert, and oriented. His thought process was linear, goal directed, and reality based. He had no hallucinations, misperceptions, or illusions. He was alert to person, place, date, and situation. The Veteran underwent another VA mental health examination in August 2016. The Veteran described social isolation, marital discord, irritability, and problems in the workplace. Following examination, the examiner found the PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted the Veteran suffers episodic passive suicidal ideation and continued daily painful re-experiencing, avoidance, withdrawal, and hyperarousal symptoms. The examiner assigned a GAF of 35. In a June 2017 mental health note, the Veteran indicated he was married and continued to work, but did not like to talk. The physician noted the Veteran was cooperative and adequately groomed. The Veteran’s thought content was reality based with no delusional material expressed. He displayed no evidence of active suicidal or homicidal ideation, hallucinations, or illusions. For the period prior to April 1, 2011, the Board finds that a disability rating in excess of 30 percent is not for application. Rather, the Veteran’s PTSD more nearly approximated “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” and is therefore adequately contemplated by the assigned 30 percent rating. In this regard, prior to April 1, 2011, the medical evidence of record fails to demonstrate that the criteria set out in DC 9411, or any symptomatology of similar frequency, severity and duration necessary for the assignment of a 50 percent (or higher) rating, had been met. The Veteran’s symptoms as documented in the October 2009 VA examination included irritability, withdrawal, avoidance, and sleep disturbance. Despite the noted symptomatology, the Board finds that the evidence fails to establish social and occupational impairment resulting in more than a reduced reliability and productivity, as shown in the VA examination. Furthermore, the Veteran was able to maintain a marriage and employment. The Veteran’s GAF scores reflect predominantly mild to moderate symptoms, consistent with the assigned rating. Furthermore, at no time during the appeal period, to include on and after April 1, 2011, has total occupational or social impairment been shown. Regardless of the Veteran’s marital status or discord, the Veteran has maintained a relationship with his wife throughout the appeal period. The Veteran has also maintained employment throughout the appeal period. Throughout the period of this claim, manifestations of the Veteran’s PTSD include, but are not limited to, sleep disturbance, nightmares, anxiety, depressed mood, and social isolation. The Veteran, on a few occasions, mentioned suicidal ideations (see April 2011 treatment notes; August 2016 VA examination), but none of these were constant and the majority of the Veteran’s treatment records show he denied experiencing these symptoms. Moreover, the above-described evidence, notably the December 2012 and August 2016 VA examinations, do not document that the Veteran’s PTSD symptoms result in total occupational and social impairment. In summary, the Board believes that the 30 percent rating prior to April 1, 2011, and the 70 percent disability rating thereafter, adequately contemplate the frequency, severity, and duration of his symptoms resolving all doubt in favor of the Veteran. These ratings are assigned based on all the evidence of record rather than any isolated medical finding or assessment of level of disability. 38 C.F.R. § 4.126(a). The Board finds that the Veteran’s myriad of symptoms does not more nearly reflect the frequency, severity, and duration of symptoms ratable at the 50 percent disability level prior to April 1, 2011, or ratable at the 100 percent disability level since April 1, 2011, as discussed above. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In reaching the above conclusions, the Board has also fully considered the lay statements of record, which are competent insofar as they relate to observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Notably, however, the lay evidence of record is not competent to provide an expert opinion as to the Veteran’s level of functional impairment as a result of his observable PTSD symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, it is afforded less probative value than the objective psychiatric medical evidence of record. It is important for the Veteran to understand that this finding does not suggest he does not have problems with PTSD. A 70 percent evaluation is a significant disability, which will cause him many problems, as he has noted, and the Board acknowledges the Veteran continues to seek treatment for his mental health. Without taking into consideration the problems he has cited there would be no basis for the current finding. The only question in this case is the degree of disability, not whether the Veteran suffers from PTSD. Accordingly, the Board finds that a rating in excess of the currently assigned ratings is not warranted for any period of time covered by the appeal. As the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased disability rating for PTSD in excess of 30 percent prior to April 1, 2011, or 70 percent thereafter. There is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (Continued on the next page)   Furthermore, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record regarding the claim of an increased rating for his PTSD. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Moreover, the Veteran has not suggested that he is unemployable, and there is no indication that he is unemployed. Accordingly, a claim for entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) has not been raised by the record. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel