Citation Nr: 18150090 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-47 437 DATE: November 14, 2018 ORDER Entitlement to a rating greater than 50 percent for post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s PTSD manifested with symptoms of nightmares, difficulty sleeping, depression, anxiety, avoidance, and hypervigilance causing social and occupational impairment with reduced reliability and productivity, but not impairment with deficiencies in most areas or total social and occupational impairment or symptoms that equate in severity, frequency or duration to this level of impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1966 to February 1968. Entitlement to a rating greater than 50 percent for PTSD. 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). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). The Veteran’s PTSD has been evaluated as 50 percent disabling for the entire period on appeal under Diagnostic Code 9411. Diagnostic Code 9411 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Under the General Rating Formula, a 50 percent rating is assigned when a veteran’s PTSD 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 70 percent evaluation is warranted when there is 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The maximum schedular rating of 100 percent 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 or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2017). The rating agency shall assign an evaluation based on all 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) (2017). Use of the term “such symptoms as” in § 4.130 indicates that the list of symptoms that follows is “non-exhaustive,” meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and because the plain language of the regulation makes clear that “the veteran’s impairment must be ‘due to’ those symptoms,” 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, 713 F.3d at 116-17. Global Assessment of Functioning (GAF) scores are a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32. Scores ranging from 41 to 50 are assigned when there are 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). 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 38 C.F.R. § 4.130 (incorporating by reference the VA’s adoption of the DSM-IV for rating purposes). Lower numbers on the GAF scale reflect more severe symptoms; higher numbers reflect less severe symptoms. The Board notes that although the DSM has been updated with a 5th Edition (“DSM-V”), to include GAF scores being dropped due to their “conceptual lack of clarity,” since some of the Veteran’s examinations took place prior to the adoption of the DSM-V, the DMS-IV criteria will be utilized in conjunction with all other pertinent evidence of record. The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Veteran is seeking an increased rating for his PTSD contending that his condition has worsened. As the Veteran’s claim for an increased disability rating was received by VA in March 2013, the Board will consider evidence of severity of symptoms from March 2012, one year prior to the receipt of the present claim. 38 C.F.R. § 3.400 (o)(2); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). The evidence shows that in a May 2012 psychiatry visit to establish care in the PTSD program, the Veteran reported worsening problems with nightmares every night, frequent thoughts of Vietnam, and insomnia over the past two years. He further reported that loud noises lead to flashbacks and that he doesn’t like to see soldiers in uniform. However, he does not have many problems being around other people, and that he is not anxious and usually feels calm. He denied suicidal ideation, but noted that he has a depressed mood due to personal finances. Upon examination, the examiner noted that the Veteran was alert, interactive, and dressed casually. His mood was depressed and affect was described as downcast. The Veteran denied suicidal/homicidal thoughts, there was no evidence of psychotic symptoms, and insight and judgment were good. The examiner diagnosed the Veteran with PTSD, adjustment disorder with depressed mood, and assigned a GAF score of 55. In September 2012, the Veteran received a VA examination to determine the severity of his PTSD. The Veteran reported that it was difficult to be near or associate with others in uniform, and that it was difficult to come to VA for services. Socially, the Veteran reported having a good relationship with one sister, and that he was previously married for nine years, but divorced due to irreconcilable differences. He further reported that he has friends with whom he enjoys fishing and going out on the boat, and that he also enjoys spending time on the beach, walking, and spending time with his dog. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The examiner diagnosed the Veteran with PTSD, anxiety, depression, and alcohol abuse, assigning a GAF score of 55. Further, the examiner noted that the Veteran’s symptoms overlap such that depression is likely related to PTSD as he feels depressed when he is not busy and has time to think about his experiences. The examiner found that his symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. In an April 2013 psychiatry visit, the Veteran reported that he wanted help with his PTSD symptoms, especially insomnia and nightmares. He reported that he is only able to sleep 3-4 hours per night, and that he has nightmares nearly every night. He further reported having trouble with concentration, losing interest in activities, being uncomfortable around crowds, and having a depressed mood fairly frequently. The examiner noted that the Veteran was casually dressed, affect is anxious and downcast, insight and judgment were noted as good, and the Veteran exhibited no evidence of suicidal/homicidal thoughts, and no psychotic symptoms. The examiner assigned a GAF score of 55, and referred the Veteran for prolonged exposure therapy (PE). Although the Veteran declined any medications, it was subsequently noted in a May 2013 mental health note that the Veteran reported he would attempt treatment with cannibis use. In a July 2013 pharmacy note, it was noted that the Veteran began taking medications in June 2013, but discontinued them due to the side effects. He reported being moody, inattentive, anxiety, and irritable at times. He further reported having intrusive thoughts, sporadically, nightmares continuing three times a week, difficulty sleeping, hypervigilance around crowds, and exaggerated startled response with loud noises. The Veteran reported that he continues to use marijuana nightly, and denied having flashbacks and suicidal/homicidal ideations. Socially, the Veteran reported that his girlfriend continues to be supportive and they go out three times per week. He further reported socializing with friends and relaxing by his pool. Upon examination, the examiner noted that the Veteran was alert and interactive, casually dressed, with fair grooming, oriented, with anxious affect. Thought process was logical and coherent, and the Veteran denied suicidal/homicidal ideations, hallucinations, and paranoid ideations. The examiner diagnosed the Veteran with PTSD, and regular marijuana use-r/o abuse, and assigned a GAF score of 55. The examiner prescribed mirtazapine for sleep, and advised the Veteran to follow up with his physician. In a June 2013 VA examination, the Veteran reported symptoms of sleep disturbance, nightmares, flashbacks, startled response, anxiety, avoidance of crowds, withdrawn, hypervigilant, depression, and anger. The Veteran further reported being in a relationship for one year and that they go out to dinner on occasion. He reported that he goes to auto races and is able to avoid the large crowds since he still has access to the pit area. He further reported that large crowds “spook him,” and that he goes to Publix late at night to avoid crowds. Occupationally, the Veteran also reported that he would like to work, but has had difficulty finding a job due to his age and a decrease in sponsorship in the racing industry. The examiner diagnosed the Veteran with PTSD, cannabis dependence, and found that the Veteran’s symptoms cause occupational and social impairment with reduced reliability and productivity. The examiner assigned a GAF score of 55, but noted that the Veteran’s symptoms have increased due to his inability to find employment. The examiner explained that the Veteran has expressed increased withdrawal from social activities involving large crowds, and has had too much time to think, which appears to have increased his anxiety and depression, thus, leading to increased sleep issues. In a December 2013 mental health visit,, the Veteran reported having a “setback.” He reported an increase in intensity and the frequency of his nightmares, and that he is again having difficulty falling asleep; however, the Veteran reported that the holiday season is usually difficult for him. He further reported that he went to the mall a few times with his girlfriend, but could only manage being there a few minutes. The examiner noted the Veteran was adequately dressed, alert and oriented to person, place, and time. The Veteran’s behavior was cooperative, not guarded, not suspicious, and not hostile. Mood was unremarkable, affect was described as congruent, attention and concentration was intact, memory was intact, thought process/content was within normal limits, and insight and judgment was intact. There was no evidence of suicidal/homicidal ideations, psychosis, delusions, or hallucinations. The examiner diagnosed the Veteran with PTSD and cannabis use disorder, and recommended the Veteran meet with the PTSD coordinator. In a February 2014 psychiatric visit, the Veteran reported that he was not taking any medications as he did not find them beneficial, but he smokes marijuana nightly to help with sleep. He further reported that he no longer wants to be seen in the PTSD clinic, but would like to be transferred to the MHC to resume therapy with his previous clinician to work on nightmares and decreasing avoidance. The examiner submitted a consult to MHC per the Veteran’s request. In an April 2014 psychology consult, the Veteran reported participating in the prolonged exposure therapy program, but that it did not help with nightmares. He further reported difficulty sleeping due to nightmares, and that he used marijuana to help with sleep. The examiner noted the Veteran was well-groomed, oriented in all spheres, and cooperative. Thought process was coherent, insight and judgment were intact, psychomotor activity was within normal limits, and mood and affect seemed anxious. The Veteran denied suicidal/homicidal ideation, hallucinations, and there was no evidence of delusional content. The examiner diagnosed the Veteran with cannabis use disorder, and mild PTSD, and advised the Veteran to return for a follow-up. Analysis After considering the above and remaining evidence, the Board finds that a rating greater than 50 percent is not warranted as the Veteran’s symptoms of nightmares, insomnia, intrusive thoughts, flashbacks, avoidance, depression, irritability, and anxiety moderately impaired his social and occupational functioning. In support thereof, the Board finds that throughout the period on appeal, the Veteran’s symptoms have varied in frequency, severity, and duration. Additionally, although the Veteran has reported a number of symptoms throughout the appeal period, his symptoms have been intermittent, including his depression, which has been attributed to situational factors. Moreover, the Veteran’s symptoms did not rise to a level of severe; thus, warranting a higher rating. For example, in his April 2013 psychiatric visit, the Veteran reported having nightmares nightly; however, in a July 2013 pharmacy note, it was noted that the Veteran reported having nightmares three times a week. Similarly, in a May 2012 psychiatric visit, the Veteran reported that loud noises lead to flashbacks, and he reiterated having flashbacks in his June 2013 VA examination; but in his July 2013 pharmacist visit, he denied flashbacks altogether. Additionally, in some instances, the Veteran has reported only a few symptoms such as in his April 2013 psychiatric visit, when he requested help for nightmares and insomnia. Similarly, in December 2013, he noted that his “setback” was due to nightmares, difficulty sleeping, and difficulty in crowds. Likewise, in his February 2014 psychiatric visit, he requested assistance with nightmares and decreasing avoidance. With regards to his reported setback in December 2013, the evidence does not show a significant worsening of his symptoms that would warrant a higher rating. As noted previously, during his reported setback, the Veteran also stated that the holiday season is difficult for him. Additionally, after examining the Veteran, there was no indication that the Veteran’s symptoms worsened such that a higher rating would be warranted as the examiner noted the Veteran’s behavior was cooperative, not guarded, not suspicious, and not hostile. Mood was unremarkable, attention, concentration, memory, judgment, and insight were intact, thought process/content was within normal limits, and there was no evidence of suicidal/homicidal ideations, psychosis, delusions, or hallucinations. Further, although the Veteran reported having episodes of depression, the evidence shows that his depression stemmed from financial difficulties. This notion is evidenced in his May 2012 psychiatric visit where the Veteran reported being depressed due to finances. The examiner in his June 2013 VA examination also noted that the Veteran was depressed due to not working, and that the Veteran’s symptoms have increased due to his inability to find employment. Likewise, the September 2012 examiner noted that the Veteran is depressed when he is not busy and has time to think about his experiences. Despite attributing his depression to not working, the Board also recognizes the June 2013 examiner noted an increase in the Veteran’s symptoms due to his increased withdrawal from social activities involving large crowds; however, the Board finds that the Veteran’s symptoms did not increase such that a higher rating is warranted as the same examiner found that the Veteran’s symptoms cause occupational and social impairment with reduced reliability and productivity, indicative of moderate impairment. Moreover, the examiner assigned a GAF score of 55, also indicative of moderate impairment. In fact, throughout the entire appeal period, the Veteran’s GAF score of 55 has consistently been reported by multiple examiners as evidenced in his May 2012 psychiatric visit, September 2012 VA examination, and again in April and October 2013 mental health visits. Other evidence which support the Board’s findings include the Veteran’s social functioning. Socially, the Veteran has reported having a good relationship with his sister, and as noted in his June 2013 VA examination, he has been in a romantic relationship for one year. Although the Veteran is previously divorced, he was married for nine years and reported that the divorce was due to irreconcilable differences, as opposed to symptoms related to his PTSD. He further reported that he spends time with friends going fishing and out on the boat, he goes out with his girlfriend, and that he enjoys spending time on the beach, walking, and spending time with his dog. Furthermore, despite the Veteran’s reports of being anxious around crowds, the Board notes a November 2013 mental health visit where the Veteran reported that he had the best birthday as he was able to go dancing and to a restaurant. In a subsequent November 2013 mental health visit, the Veteran reported that he and his girlfriend had scheduled a trip to Las Vegas and would be seeing a Cirque Du Soleil show. Similarly, there is no evidence that the Veteran’s symptoms significantly impaired his occupational functioning. Although the Veteran reported not having worked since 2008, he also reported that his lack of employment was due to a lack of funding. Furthermore, the Veteran reported having worked in the auto industry for 45 years and reported having no problems due to his PTSD symptoms. Moreover, he reported in his June 2013 VA examination that he would like to work, but was having difficulty finding employment due to his age. Given the above, the Board finds the Veteran’s PTSD symptoms more nearly approximated the criteria for a 50 percent rating, and no higher, as his symptoms caused moderate impairment, and were not of the severity, frequency, or duration that would warrant a higher rating. As explained above, although the Veteran consistently reported problems primarily with insomnia, difficulty in crowds, and nightmares, these symptoms did not cause severe impairment as the Veteran reported a reduction in his nightmares in July 2013. Additionally, despite his reported anxiety in crowds, the Veteran has maintained a romantic relationship and has friends whom he socializes with regularly. Moreover, during the Veteran’s mental health visits and VA examinations, examiners have consistently reported that the Veteran presented adequately groomed, with normal thought content and process, attention and concentration intact, and no evidence of delusions, hallucinations, psychosis, or suicidal/homicidal ideations. The Board also notes that the Veteran successfully completed prolonged exposure therapy in November 2013, and continued to maintain social and occupational functioning without the benefit of medications. As noted in a February 2014 psychiatric visit, the Veteran reported that he was not taking any medications as he did not find them beneficial, but he smokes marijuana nightly to help with sleep. Furthermore, the evidence is silent for any further mental health treatment or visits since May 2014 as the Veteran was advised in a May 2014 psychology visit that he could no longer receive treatment from the PTSD clinic due to his daily marijuana use. However, during visits for other medical treatment, the Veteran’s PTSD was reported as stable. This finding is evidenced in July 2014 and February 2015 primary care follow-up visits where it was noted that the Veteran’s depression, anxiety, and PTSD were stable. In a July 2015, primary care risk assessment, PTSD and depression screens both revealed negative results. Although a positive PTSD screen was noted in a January 2016 primary care visit, the examiner noted that the Veteran’s PTSD, depression, and anxiety were stable, and the Veteran denied suicidal ideation and refused treatment. Likewise, in a July 2016 primary care note, the Veteran requested medication for insomnia; however, PTSD, depression, and anxiety were again noted as stable. Lastly, the Board recognizes that the Veteran has submitted a February 2015 medical opinion to substantiate his claim for a higher rating. However, the Board does not find the opinion probative for the following reasons. First, the Board notes that the clinician found that the Veteran has occupational and social impairment equivalent to a 70 percent rating; however, this finding is inconsistent with the evidence. As noted previously, the Veteran’s GAF scores were consistently noted at a score of 55, and the Veteran was found to have social and occupational impairment of reduced reliability, both indicative of moderate impairment. In fact, the September 2012 examiner found that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning, nor did he require the use of continuous medications. Moreover, in an April 2014 mental health visit, the examiner diagnosed the Veteran with “mild PTSD.” The Board also notes that while the clinician indicated he reviewed the Veteran’s history and personally interviewed the Veteran, there is no accompanying examination to support his findings. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Furthermore, the Board notes there is a significant difference in the level of expertise and professional credentials of the VA examiners versus the clinician that provided the February 2015 medical opinion, as the VA examiners were licensed psychiatrists or psychologists, while the private clinician is a licensed professional counselor. While not dispositive, the level of experience of the licensed psychologists/psychiatrists does lend more credibility and weight to their conclusions. (Continued on the next page)   Therefore, in light of the above findings, the Board concludes the Veteran’s PTSD more nearly approximated the criteria for a 50 percent rating, and no higher, as his symptoms were moderate and were not of the severity, frequency, or duration that would warrant a higher rating. Further, the Veteran’s symptoms did not cause occupational and social impairment with deficiencies in most areas, nor total occupational and social impairment. Accordingly, the Veteran’s claim for a rating greater than 50 percent is denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel