Citation Nr: 18143005 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-26 190 DATE: October 18, 2018 ORDER An initial rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran’s PTSD has been productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent disabling for PTSD have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. § 4.3, 4.10, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to December 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the unorthodox path that this decision has followed through the appellate process. Initially, the Veteran filed a claim for PTSD in April 2008. In August 2009, the RO issued a decision denying PTSD. The Veteran promptly appealed the decision with a notice of disagreement, In December 2010, he requested a BVA hearing at his local office. A hearing was scheduled but testimony was not taken as an agreement was reached for the Veteran to withdraw his hearing request in order to be scheduled for a VA examination to determine the etiology of his PTSD symptoms in August 2011. The Veteran was afforded a VA examination in August 2011. Following the examination an RO rating decision in September 2011 granted service connection for PTSD and assigned an initial rating of 50 percent disabling, effective April 29, 2008. The Veteran promptly filed a notice of disagreement in October 2011. However, the RO failed to respond to or issue an SOC. The matter lay dormant until the Veteran wrote a letter in February 2015 inquiring about his claim. Thereafter, the RO issued a statement of the case (SOC) in May 2016 continuing the PTSD rating at 50 percent disabling. The Veteran perfected his appeal by his Form 9 submission filed in May 2016 requesting a higher initial rating. Entitlement to an initial rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD). Legal Criteria 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. 119, 126-27. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Estban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14 Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazques-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must 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: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The notes the pertinent rating criteria next. Under the General Rating Formula, the criteria for a 50 percent rating are: 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; forgetting to complete tasks); impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for 70 percent rating are: 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. The criteria for 100 percent rating are: 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. The symptoms recited in the criteria in the General Rating Schedule for evaluating mental disorders are not “intended to constitute an exhaustive list, but rather are to serve 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, 442 (2002). Nonetheless, the Court of Appeals for the Federal Circuit (Federal Circuit) acknowledged the “symptom-driven nature” of the General Rating Formula. The Federal Circuit observed that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (emphasis added). The Federal Circuit explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. Indeed, "VA must engage in a holistic analysis" that assess the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Thus, the Board will consider all psychiatric symptomatology when assessing the ratings. The Board acknowledges that psychiatric examinations frequently include assignment of GAF scores. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.)(DSM-5), and 38 C.F.R. § 4.130, has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to DSM-IV and replace them with references to DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221, the Court held that given that the DSM-5 abandoned the GAF scale and that the VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This case was certified to the Board in September 2016; therefore, it was pending before the AOJ on August 4, 2014 and the DSM-5 applies and GAF scores do not have to be utilized.   Analysis As noted above, the Veteran filed a claim for PTSD in April 2008 asserting that his PTSD was related to his active military service. After review of the relevant medical and lay evidence, the Board finds that a rating in excess of 50 percent disabling for PTSD is not warranted. In January 2008, treatment records reveal that the Veteran had a positive screen for PTSD and depression. He displayed no suicidal ideations and was referred for a mental health consultation. In August 2011, the Veteran was afforded a VA examination. He reported social isolation, health difficulties, and that he had been fired from his last job in 2007. He stated that he could not get along with his boss and further stated that he had been fired from many jobs in the past. The examiner recorded symptoms related to depressed mood; anxiety; disturbances of motivation; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and impaired impulse control. Notably, the Veteran had been arrested in 1974 and 2008. He indicated that he had a “quick fuse”. At the time of the examination the Veteran’s behavior was adequate, he was casually dressed with appropriate grooming, his speech was spontaneous with normal rate, and there were no indications of hallucinations, delusions or suicidal ideation. The examiner diagnosed the Veteran with PTSD. His occupational and social impairment were productive of occupational and social impairment with reduced reliability and productivity. The examiner determined that the Veteran was not precluded from working due to his PTSD disability. As noted above, in September 2011, the RO granted PTSD with a 50 percent disability rating, effective April 29, 2008. An appeal was promptly filed in October 2011 and the claim remained dormant for several years. Once the claim became active, the Veteran provided a statement of support in March 2016. He highlighted his current symptoms, such as depression, anxiety, and isolation. He added that VA helped him and has been able to cope better with the origin and long-term struggles from his service-connected PTSD. In addition to the Veteran’s 2016 statement, contemporaneous VA treatment records were associated with the claims file. The records covered a period from the initial denial for PTSD in August 2009 through July 2016. The records reveal that there were periods when he did not seek treatment for his PTSD. Specifically, a treatment note in December 2012 states that the Veteran would like to resume PTSD classes after not attending classes for over a year. When he did begin attending treatment the programs by his own admission were benefiting him “tremendously”, which was his response to a clinician in March 2014. Also in March 2014, a PTSD screening showed no current mental health condition requiring further intervention. Based on the evidence above, the Board finds the Veteran’s PTSD reflected symptomatology more nearly approximated by a 50 percent rating. Specifically, the August 2011 VA examiner found occupational and social impairment with reduced reliability and productivity. In this regard, the Veteran exhibited symptoms such as difficulty adapting to stressful circumstances, to include at a worklike setting and having a short fuse. The Board finds that the current 50 percent rating contemplates that as part of his reduced reliability and productivity. Additionally, during the rating period on appeal, to include at the 2011 VA examination, the Veteran has noted his depressed mood. Although the rating criteria fr the next-higher 70 percent rating contemplates deficiencies in “most areas,” including work, school, family relations, judgment, thinking, or mood, such deficiencies must be “due to” the symptoms listed for that rating level, “or others or others of similar severity, frequency, and duration.” Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). That is, simply because this Veteran has depressed mood, and because the 70 percent level contemplates a deficiency in “mood” among other areas, does not mean his PTSD rises to the 70 percent level. Indeed, the 30, 50, and 70 criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. Id. Here, the Veteran’s depressed mood is expressly contemplated by the 50 criteria, which contemplates “disturbances” in mood. 38 C.F.R. § 4.130. The Board finds that the Veteran is adequately compensated for such impairment. In addition, the contemporaneous treatment records show that his mental health is stable as there is no condition that requires further intervention. The Board recognizes the Veteran’s contention that his symptoms warrant a rating greater than 50 percent disabling. He is competent and credible to report his observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in this instance the VA examination and the contemporaneous treatment records are probative and carry the greatest weight. Additionally, the Board has looked at the totality of the competent and probative evidence and finds that the Veteran’s social and occupational impairment from symptomatology (Continued on the next page)   The Board has looked at the totality of the weight of competent, probative evidence shows the Veteran’s symptomatology (such as depression, anxiety, and impaired impulse control) reflects a frequency, severity, and duration is more nearly approximated by the current 50 percent evaluation criteria. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial rating more than 50 percent disabling for the Veteran’s PTSD disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel