Citation Nr: 18143752 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-19 844 DATE: October 22, 2018 ORDER Severance of service connection for post-traumatic stress disorder (PTSD) was improper and service connection is restored. Entitlement to a rating higher than 10 percent, prior to April 14, 2011, for PTSD is denied. Entitlement to a rating higher than 30 percent from April 14, 2011, to April 1, 2013, for PTSD is denied. Entitlement to a rating of 70 percent, but not higher, for a psychiatric disability, effective April 2, 2013, but not earlier, is granted. FINDINGS OF FACT 1. The evidence of record does not establish that the award of service connection for PTSD was clearly and unmistakably erroneous. 2. Prior to April 14, 2011, PTSD resulted in 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. 3. From April 14, 2011, to April 1, 2013, PTSD resulted in 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). 4. As of April 2, 2013, but not earlier, the Veteran’s psychiatric disability has been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Some of the symptoms include suicidal ideation, sleep impairment, and irritability. CONCLUSIONS OF LAW 1. Severance of the award of service connection for PTSD was improper. 38 U.S.C. §§ 1110, 1131 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105(d), 3.159, 3.326(a). 2. Prior to April 14, 2011, the criteria for a rating higher than 10 percent for a psychiatric disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 3. From April 14, 2011, to April 1, 2013, the criteria for a rating higher than 30 percent for a psychiatric disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 4. The criteria for a 70 percent rating for a psychiatric disability are met as of April 2, 2013, but not earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to November 1970. Service medical records show that the Veteran served in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2010 and August 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. An April 2013 rating decision increased the Veteran’s PTSD rating from 10 percent to 30 percent effective April 14, 2011. An April 2016 rating decision proposed to sever service connection for PTSD. An August 2016 rating decision severed service connection for PTSD effective November 1, 2016. 1. Entitlement to restoration of service connection for PTSD, effective November 1, 2016 Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous with the burden of proof being upon VA. In order to sever service connection, VA must demonstrate that the grant was clearly and unmistakably erroneous and that the VA has followed the applicable procedural safeguards. Once service connection has been granted, it may be withdrawn only after VA has complied with specific procedures and VA meets the high burden of proof. In effect, § 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. 38 C.F.R. § 3.105(d); Baughman v. Derwinski, 1 Vet. App. 563 (1991). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the claim that, had it not been made, would have manifestly changed the outcome, whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). The same standards apply in a determination of clear and unmistakable error in a prior decision and a determination as to whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection. However, for the latter case the reviewable evidence is not limited to that which was before the RO at the time of the challenged rating decision. Daniels v. Gober, 10 Vet. App. 474 (1997); Allen v. Nicholson, 21 Vet. App. 54 (2007). The severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence establishes that service connection is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). Turning to the merits of the severance, there is a three-pronged test to determine whether clear and unmistakable error is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). The Veteran asserted that he was entitled to service connection for PTSD based on a fear of hostile military activity during service in Vietnam. A September 2010 rating decision granted service connection for PTSD. A September 2010 VA examination found that the Veteran did not have PTSD in the narrative due to not having avoidance of stimuli, but listed an Axis I diagnosis of chronic PTSD in the same examination report. A May 2012 VA examiner opined that the Veteran’s PTSD diagnosis was in error, and that the correct diagnosis was anxiety disorder. An August 2016 rating decision found that the Veteran did not and never had a diagnosis of PTSD that had been related to a fear of hostile military or terrorist activity in service. That decision stated that although a September 2010 VA examination examiner diagnosed PTSD, the examiner “didn’t expressly relate PTSD to fear of hostile military activity in Vietnam.” The RO added that in the same examination, the examiner stated that the Veteran did not present with PTSD, because he was “‘too happy’ and ‘too liking’ how things were going…” The Board finds that the severance of service connection for PTSD was based on a difference of opinion amongst VA examiners. Although, the RO may now believe that examination to be defective, it was accepted at the time of the September 2010 decision as an adequate diagnosis. That alone does not satisfy the first prong of the three-part test of the CUE analysis because it is not more than a simple disagreement as to how the facts were weighed or evaluated at the time of the original decision. While the September 2010 VA examination was confusing because it diagnosed PTSD at once place in the examination and found there was no PTSD in another part of the examination, a reasonable reviewer could have resolved reasonable doubt in favor of the Veteran at that time and found that a diagnosis of PTSD was warranted. As no other possible stressors were mentioned in the examination report other than Vietnam war experiences, attribution of PTSD to a fear of hostile military action in service could be inferred from the examination report. In addition, an April 2013 VA treatment record found that the Veteran met the criteria for a diagnosis of PTSD, with four avoidance symptoms, which is also evidence against severance, which weighs against a finding that service connection for PTSD was clearly and unmistakably erroneous. Therefore, the Board finds that no clear and unmistakable evidence has been found establishing that the award of service connection based on the September 2010 VA examination was in clearly and unmistakable in error. In the absence of clear and unmistakable evidence showing error, the Board concludes that severance of the award of service connection for PTSD effective as of November 1, 2016, was improper. 2. Entitlement to an increased rating for a psychiatric disability The Veteran contends that the record supports the assignment of a rating in excess of 30 percent for PTSD as the disability is productive of social impairment and depressive symptoms which impacts his daily and vocational activities. In a May 2012 statement, the Veteran stated that his symptoms have increased in severity. Diagnostic Code 9411 is used to rate PTSD and other mental disorders and applies the General Rating Formula for Mental Disorders. A 10 percent rating is assigned when a psychiatric disability causes 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 where symptoms are controlled by continuous medication. A 30 percent rating is assigned when a psychiatric disability causes 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 such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned when a psychiatric disability causes 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned when a psychiatric disability causes 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned when a psychiatric disability causes 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, Diagnostic Code 9411. In evaluating the evidence, the Board also considers the Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 61 to 70 indicates some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally reflects that a person is functioning well, and has some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. A GAF score of 41 to 50 indicates there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals), or any serious impairment in social, occupational, or school functioning (e.g., no friends, inability to keep a job). The Board notes that an examiner’s classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered, but is not determinative in and of itself, of the percentage rating to be assigned. The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran’s service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the enumerated factors listed in the VA’s Schedule for Rating Disabilities. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (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 DSM-IV). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be due to those symptoms, a veteran may only qualify for a given disability 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 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). In a July 2010 private treatment record, the Veteran reported suicidal thoughts with no plans to act or attempts, feelings of hopelessness or despair, substance abuse, sleep disturbances, and medical problems. There was no anxiety, irritability, aggression, depression, or hallucination noted on examination. The Veteran appeared neat, friendly, cooperative, oriented to time place and person, with flat affect, and with fair judgment and appropriate speech. The record then shows ongoing group counseling sessions for PTSD and substance abuse. There were no reports of homicidal thoughts or plans. In a September 2010 VA examination, the Veteran appeared well dressed, groomed with good hygiene, thinking processes were appropriate and goal directed, and there was no evidence of suicidal ideations, delusions, ideas of reference, or loose associations during the interview. The examiner observed the Veteran to be alert and very oriented to person, place, and time. The Veteran reported recurrent and intrusive distressing recollections, distressing dreams, and irritability or outburst of anger. The Veteran described seeing images of people hanging upside down and two people who were run over by his truck. The disturbances caused significant distress or impairment in social, occupational, or other important areas of functioning. The examiner noted that the Veteran had a difficult time getting and maintaining a job upon separation from service, but was eventually able to obtain a job as a probation officer for twenty-two years. Following his job as a probation officer, the Veteran worked in real estate where he enjoyed the work and the people. The Veteran was assigned a GAF score of 61. The examiner concluded that the Veteran’s level of trauma was “very low” and indicated that “he seems to be well past that now.” It was opined that the Veteran did not have PTSD and did not have any other mental disorders. The rationale provided was that the Veteran was “too happy and too liking how things were going for him.” In a May 2012 VA examination, the examiner opined that the Veteran did not have PTSD, but diagnosed anxiety disorder that was more likely than not related to military stressors. The examiner concluded that symptoms were not severe enough either to interfere with occupational and social functioning, or to require continuous medication, but were mild in nature. On examination, the Veteran described having an active lifestyle, working out, visiting with friends, maintaining a good relationship with his children, and being involved in a romantic relationship. The Veteran reported that he still experienced sleep disturbances, moderate symptoms of re-experiencing the events, and disturbances of motivation and mood. The Veteran described himself as very sociable, popular, “life of the party” and that he had been withdrawn since his divorce in 1986. The Veteran was assigned a GAF score of 65. An April 2013 primary care psychology medical note indicated that the Veteran was receiving treatment for PTSD. The Veteran reported problems with sleep onset and maintenance, decreased interest, increased guilt, and decreased concentration. The Veteran denied any suicidal or homicidal thoughts. Other symptoms included detachment from others, irritability, difficulty falling asleep, avoidance, trouble concentrating, and hypervigilance. In a September 2014 PTSD disability benefits questionnaire form completed by a licensed psychologist, the examiner noted a diagnosis of PTSD. The Veteran was noted to have occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, and/or mood. The Veteran reported that he self-medicated with alcohol daily. The Veteran experienced recurrent distressing dreams of the event, efforts to avoid people or places that aroused recollections of the trauma, a feeling of detachment or estrangement from others, irritability or outbursts of anger, difficulty concentrating, and hypervigilance. Symptoms attributed to the diagnosis were depressed mood, anxiety, suspiciousness, chronic sleep impairment, near continuous pain or depression affecting functionality, disturbances of motivation, instability, difficulty establishing or maintaining effective work and social relationship, difficulty adapting to stressful circumstances including work or work like setting, an inability to establish and maintain effective relationships, and persistent delusions and hallucinations. The Veteran was assigned a GAF score of 50. No suicidal or homicidal ideation was noted on examination. There is a letter of record, that appears to be dated from October 2014. However, it is unclear who the author of the letter is, and the letter appears to be one page out of forty-two pages that are not available. The letter states that the Veteran should have a GAF score of 50 “as this expert believes his PTSD and social impairment are emotionally debilitating.” The Veteran was noted as being incapable of sustaining the stress from a competitive work environment and engage in gainful activity. The author of the letter then stated that the GAF score of 50 related back to his original claim date. Symptoms noted in the letter included hypervigilance, sleep impairment, difficulty adapting to stressful circumstances, and an inability to maintain effective relationships. Since it is unclear who authored that letter, and it is more than one year prior to the date of claim for increase, it is found to be of little probative value. Medical treatment records from October 2015 through November 2017 noted ongoing treatment for depression, PTSD, and sleep impairment. A May 2015 primary care note indicated decreased interest, energy, concentration, sleep impairment, and increased guilt. In an October 2015 VA examination, the examiner noted the Veteran did not meet the criteria for a PTSD diagnosis, but did have a diagnosis of an unspecified depressive disorder. The examiner opined that the Veteran experienced 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 Veteran denied thoughts or plans to hurt self or others, but did exhibit sleep impairment, labile affect, controlling behaviour without obsessional rituals or behaviour, and disturbances of motivation and mood. In a September 2015 primary care psychology note, the Veteran reported ongoing problems with sleep impairment. In an April 2018 VA examination, the Veteran reported having a strong relationship with his two adult daughters. The Veteran stated that he spends most of his time at home alone watching television. He still experiences sleep disturbances, avoids large crowds, and tries to avoid stimuli that may remind him of his service in Vietnam. The Veteran reported experiencing his first thoughts of suicide a few days prior to the examination. The examiner opined that the Veteran’s symptoms would cause occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Prior to April 2013, the Veteran’s disability picture most nearly approximated the assigned 10 percent rating effective April 20, 2010, and the assigned 30 percent rating effective April 14, 2011. VA examinations and medical treatment records show that the Veteran experienced sleep impairment, disturbances of motivation and mood, and irritability and outburst. There was one report of suicidal thoughts in July 2010 and no more until April 2018. In fact, the May 2012 examiner opined that symptoms were not were not severe enough either to interfere with occupational and social functioning. The Veteran was also assigned GAF scores that fell between 61 and 70 which indicates some mild symptoms. The Veteran was mainly described as appearing neat with good hygiene, organized, and oriented to time and place. Therefore, the Board finds that a review of the medical records shows an overall condition that more nearly approximates the assigned ratings prior to April 14, 2011. The evidence shows mild or transient symptoms prior to April 14, 2011, which caused 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. From April 14, 2011, to April 1, 2013, the evidence shows a psychiatric disability caused 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). As of April 2, 2013, medical treatment records started to note complaints of irritability, hypervigilance, more severe sleep impairment, and avoidance. Those symptoms were consistent with what was found in the September 2014 VA examination. In September 2014, the Veteran exhibited occupational and social impairment with deficiencies in most areas as a result of symptoms that included depressed mood, anxiety, sleep impairment, disturbances of motivation, instability, irritability, hypervigilance, and an inability to establish and maintain effective personal and professional relationships among other things. There were still no suicidal or homicidal thoughts noted on examination, but the Veteran was assigned a GAF score of 50. A GAF score of 50 indicates there are serious symptoms or any serious impairment in social, occupational, or school functioning. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that a review of the medical records shows an overall condition that more nearly approximates the criteria for a 70 percent rating as of April 2, 2013, with deficiencies in most areas. Following the September 2014 VA examination, the Veteran continued to report problems with sleep impairment. However, during the October 2015 VA examination, the Veteran’s symptoms appeared to improve and resemble that of a 10 percent rating. Nonetheless, medical treatment records dated May 2015 through November 2015 note complaints and symptoms similar to what was reported in the September 2014 examination. Furthermore, by April 2018 the Veteran’s symptoms, while appearing improved from 2014, were still much more severe than indicated solely by the October 2015 VA examination, including difficulty establishing and maintaining effective work and social relationships. The April 2018 VA examination also noted symptoms similar to those found during the September 2014 VA examination. An additional symptom in the April 2018 VA examination, which had not been present before, was suicidal thoughts. Based on the similarity of the symptoms such as suspiciousness, anxiety, sleep impairment, and disturbances of motivation and mood, the Board finds that the Veteran’s disability picture still more nearly approximates that of a 70 percent rating as of April 2, 2013. The Board notes that while the Veteran was assigned GAF scores as low as 50, which denotes serious symptoms, those scores are only one aspect of what the Board considers when rating the severity of a psychiatric disability. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considering the totality of the Veteran’s symptomatology for his psychiatric disability, and the GAF scores, the Veteran’s disability has not shown to manifest to the severity required for the next higher rating of 100 percent as the evidence does not show total occupational and social impairment. The Veteran has maintained social relationships during the pendency of the appeal with friends and family, thus total social impairment is not shown. The Board finds that the Veteran’s psychiatric disability more nearly approximates a condition that is productive of occupational and social impairment with deficiencies in most areas, as noted by the September 2014 VA examination. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 70 percent rating, and not higher, were met as of April 2, 2013, but not earlier. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel