Citation Nr: 18145132 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 14-23 121 DATE: October 26, 2018 ORDER Entitlement to an initial rating of 70 percent for service-connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran’s service-connected PTSD has been manifested by occupational and social impairment, with deficiencies in most areas for the entire appeal period. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 70 percent for PTSD have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 2003 to July 2005, from August 2008 to October 2009, and from January 2010 to July 2011. The Veteran testified before the undersigned Veterans Law Judge at an August 2017 Board hearing held at the Regional Office. The claims file contains a transcript of the hearing. Although the record contains evidence not yet reviewed by the agency of original jurisdiction (AOJ), the Veteran submitted a July 2018 waiver of consideration of that evidence by the AOJ. Therefore, the Board may proceed to the merits. 38 C.F.R. § 20.1304(c). In the VA Form 9, the Veteran’s representative questioned why the Statement of the Case issued by the RO had not addressed increased rating claims for a right shoulder condition and tinnitus. While it is correct that the Veteran’s notice of disagreement stated he was appealing “all issues” decided in the 2013 rating decision, the only issue addressed in that decision was PTSD. The rating for the shoulder condition was last adjudicated in an August 2010 decision and tinnitus was last adjudicated in a May 2010 decision, so the February 2014 notice of disagreement could not be accepted as timely with either of those decisions. Therefore, the only issue on appeal at this time is the PTSD rating. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). The currently assigned 50 percent rating is warranted for 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 effective work and social relationships. A 70 percent evaluation is warranted where the disorder is manifested by 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. A 100 percent disability evaluation is warranted where 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 or place; memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as the “DSM-IV”). 38 C.F.R. § 4.130 (2013). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between 0 and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). While GAF scores were intended to be probative of the Veteran’s level of impairment, they were not meant to be viewed outside the context of the entire record. Their utility has been undermined by developments since the DSM-IV was adopted. For instance, VA’s rating schedule now contemplates DSM-5, which no longer uses GAF scores. Although the GAF scores assigned in this case were done when DSM-IV was in effect and potentially have some probative value as to the examiner’s assessment of functioning at that point in time, the American Psychiatric Association dropped the GAF score from the DSM-5 because GAF scores involved a “conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice.” Golden v. Shulkin, 29 Vet. App. 221, 224 (2018) (quoting the DSM-5). Based on this fact, the United States Court of Appeals for Veterans Claims has held: “Any reliance on evidence that expert consensus—as adopted by VA—has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases.” Id. The Board will focus on the symptoms and their effect on social and occupational functioning as described by competent witnesses rather than the numerical GAF score assigned. The state of the medical evidence and the law instructs that it “makes little sense” for the Board to “discuss how the unreliability of [GAF] scores affect the weight they should be assigned.” Id. The specific examination findings, observations, and narrative descriptions of the Veteran’s symptoms, level of impairment, and ability to function are the most probative evidence in this matter. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, 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, 713 F.3d at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). While the Veteran is competent to report (1) symptoms observable to a layperson (i.e. panic or anger); (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay Veteran competent to render opinions regarding the clinical significance of observable symptoms. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). This Veteran, who lacks medical training, is not competent to opine on the clinical significance of his mental health symptoms. See, e.g., Jandreau, 492 F.3d at 1377. Therefore, in evaluating the Veteran’s claims, the Board will rely on the medical evidence of record. The Board, however, has considered the Veteran’s subjective reports of symptoms, particularly as they illuminate or underscore the medical opinions of record. The Veteran and his representative have argued that he is entitled to a 70 percent rating, rather than the currently assigned 50 percent rating, for his PTSD. See August 2017 Appellant’s Brief. The Board agrees. As the Veteran argues, the medical evidence establishes that he has a number of the symptoms listed in the criteria for a 70 percent rating. For example, he notes that, at the April 2011 VA Neuropsychological Testing, he was found to have symptoms including “withdrawal, apathy, numbing, and avoiding, people, places, or events that remind him of trauma.” VA treatment records document suicidal ideation in 2011 and suicidal thoughts in subsequent years, though more recent records indicate he does not have suicidal ideation. See, e.g., December 2012 VA Psychiatry Consult (“He had transient, passive [suicidal ideation] recently but…he has not wish to die (or SI) currently.”); April 2014 VA Psychiatry Note (“He also had some transient, passive suicidal ideation, but indicates that this has also stopped.”); January 2017 VA Social Work Note (“2011 suicidal thoughts and mental breakdown. W/in last 90 days….No current suicidal ideation. The vet reported having suicidal thoughts but no attempts in 2011 due to mental health breakdown while in military.”). Moreover, although the January 2013 VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity (meeting the 50 percent criteria), he listed a number of significant symptoms in the 70 percent criteria including: 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); difficulty in adapting to stressful circumstances (including work or a work like setting). See January 2013 VA Examination. These assessments by the VA examiner are supported by other medical assessments contained in the record. See August 2017 Appellant’s Brief at 5-13 (providing detailed and accurate summary of the medical evidence indicating symptoms listed in the 70 percent criteria); July 2017 Statement of Veteran’s Mother (describing the Veteran’s mental health symptoms); August 2017 Board Hearing Transcript (discussing symptoms and their severity).   In short, the Veteran has a number of symptoms listed in the 70 percent criteria. The evidence against awarding a 50 percent rating consists primarily of the VA examiner’s bottom-line summary of the overall effect on the Veteran’s functioning. However, the Board finds the Veteran’s symptoms and their severity more closely approximate the criteria for a 70 percent rating. As the Veteran’s representative has ably argued, the Veteran need not exhibit all of the listed symptoms to warrant assignment of the higher rating. August 2017 Appellant’s Brief at 5 (citing Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002)); 38 C.F.R. §§ 4.3 and 4.7. The Veteran’s symptoms and their severity more closely approximate the criteria for a 70 percent rating. The Veteran has not argued that he is entitled to a rating higher than 70 percent disabling and the evidence does not support awarding any higher rating. The Veteran does not have total occupational and social impairment and does not exhibit the symptoms typical of a 100 percent rating (set forth above). The greater weight of the evidence supports assigning a disability rating of 70 percent, but no higher, for PTSD. The Veteran’s claim is granted. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board needs to discuss VA’s compliance with the duties to notify and assist. Finally, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kerry Hubers, Counsel