Citation Nr: 18156189 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 10-23 938 DATE: December 7, 2018 ORDER Entitlement to a higher initial for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to April 21, 2011 and 70 percent disabling from April 21, 2011 to July 15, 2002, is denied. REMANDED Entitlement to service connection for prostate cancer secondary to radiation exposure is remanded. Entitlement to service connection skin cancer secondary to radiation exposure is remanded. FINDING OF FACT 1. For the appeal period prior to April 21, 2011, the Veteran’s PTSD manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks without more severe manifestation that more nearly approximate occupational and social impairment with deficiencies in most areas or that more nearly approximate total social and occupational impairment. 2. For the appeal period from April 21, 2011 to July 15, 2012 the Veteran’s PTSD manifested in is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood without total social and occupational impairment. CONCLUSION OF LAW 1. For the appeal period prior to April 21, 2011, the criteria for a higher initial rating for PTSD in excess of 30 percent not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1—4.14, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. For the appeal period from April 21, 2011 to July 15, 2012, the criteria for a higher initial rating for PTSD in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1—4.14, 4.1264.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in in the Army from February 1953 to December 1953. He is a Korean Conflict Era Veteran. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oregon which denied service connection for prostate cancer and skin cancer. The appeal also arises from a December 2010 rating decision that granted service connection for PTSD and assigned an initial rating of 30 percent effective November 16, 2009. A May 2012 rating decision awarded a 70 percent rating for PTSD effective April 21, 2011. A March 2013 rating decision then granted 100 percent rating for PTSD, effective July 16, 2012. The RO also awarded a TDIU rating for the time period from April 21, 2011 until July 15, 2012. In a July 2013 supplemental statement of the case (SSOC), the RO informed the Veteran that the March 2013 rating award was deemed a “full grant of the benefit sought on appeal for this issue” and, thus, withdrew this issue from appellate consideration. In general, a claimant is presumed to seek the maximum benefits allowable by law unless the appeal is expressly limited. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Here, the award of a 100 percent rating for PTSD effective April 21, 2011 does not satisfy the Veteran’s appeal as his January 2011 statement requested benefits above the 30 percent rating prior to April 21, 2011. Thus, the rating for PTSD for the appeal period prior to April 21, 2011 remains on appeal as the RO’s actions do not constitute a full grant of the full benefits sought for the entire appeal period. In a June 2014 Board decision, the Board remanded the claim for prostate and skin cancers to confirm diagnosis and if confirmed for further development under the “other exposure” ionizing radiation development procedures. Higher initial rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The relevant rating criteria are as follows. Under the General Formula for Mental Disorders, a 30 percent rating is warranted when 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 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 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 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 warranted where 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; 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 rating is warranted for 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; 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. 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 solely on the basis of social impairment. 38 C.F.R. § 4.126. The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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.” 38 C.F.R. § 4.126(a). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 149, 45094 (August 4, 2014). In this version, Global Assessment of Functioning (GAF) scores are not included with regard to evaluating psychiatric disorders. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of the Veteran’s appeal. See Golden v. Shulkin, 29 Vet. App. 221 (2018). The Board notes that a GAF score need not be accepted as probative if it is determined that the score does not reflect the overall psychiatric disability picture at the time of the examination. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others). However, the probative value of the GAF scores will be considered in light of the other evidence of record. Higher initial rating for PTSD in excess of 30 percent prior to April 21, 2011 The Veteran contends that he should be entitled to a higher rating because he has a flat affect, is depressed all the time, is hypervigilant, irritable and suffers panic attacks when in enclosed spaces. In addition, the Veteran contends that his PTSD resulted in his divorce, his inability to socialize with his son, and impaired his potential for advancement at work. Moreover, he states that he has difficulty communicating with people and attempts to mask his discomfort with humor, that he has thought about suicide but does not have the guts to go through with it and that he has trouble remembering names and places. Based on a review of the evidence of record, the Board finds that a rating in excess of 30 percent prior to April 21, 2011 have not been met. The Veteran was afforded a VA examination on December 2009. The examiner noted that the Veteran has never been in legal trouble despite anger issues related to PTSD, he also has no history of interpersonal violence. The examiner noted that the Veteran was attending treatment ordered by an employer due to his anger. The Veteran did not continue treatment because he felt that people were trying to control him with medication. The Veteran is not suicidal. He has been married twice. He has one child with his first wife but does not attempt to maintain a relationship with. Moreover, he has been married to his current wife since 1959 they did not have children. He has no friends and does not engage in social activities. The Veteran suffers from nightmares, difficulty sleeping, anger, difficulty concentrating, hypervigilance. The Veteran alleges that his PTSD was the reason for the failure of his first marriage. The examiner described the Veteran as a person with average to somewhat above average intelligence, abstraction and reasoning abilities are intact, attention span is adequate, orientation was normal, immediate recall and short-term memory are generally intact, he has as sad affect, no hallucinations or delusions, and is not psychotic. The Board finds that the Veteran’s PTSD most closely approximates the 30 percent rating for the appeal period prior to April 21, 2011. In this regard, the Board finds that the PTSD is manifested 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). A flat affect was not shown on objective examination in November 2009 and the Veteran did not report panic attacks during this appeal period. In addition, objective examination found his immediate recall and short-term memory to be intact in the November 2009 VA examination. While the Veteran did report some social impairment due not having friends and that he had divorced his first wife, he also reported maintaining a long-term marriage to his current wife that began in 1959. However, an April 2007 VA examination report reflects the Veteran’s reports that he and his wife had a circle of friends due to his wife’s connections, that he and his wife had coffee with these friends each Tuesday morning, that this group of friends gets together once a month at someone’s house for a social activity and that that they go to breakfast at a local restaurant on Sunday mornings with a friendship group. The Veteran has argued that his PTSD negatively impacted his occupational advancement and promotion opportunities while he was working in that he had consistent conflict with his coworkers and supervisors. However, the Veteran was able to maintain employment in that position for over 30 years prior to voluntarily retiring in 1986 despite these reported difficulties. He reported that he had worked for a mining company in the accounting department and that he later became head of inventory control in a November 2009 VA examination report, suggesting that he had some career advancement and managerial responsibilities. Moreover, the Veteran has reported that his irritability has gotten worse since he retired and the record suggests that his PTSD symptoms had worsened for him to be deemed unemployable by 2013. The record does not suggest that the Veteran was unable to obtain and maintain gainful employment due to his service connected PTSD prior to April 21, 2011. In this regard, the Board finds that such symptomatology, to specifically include the Veteran’s depression, anxiety, nightmares and a lack of motivation, are contemplated in his current 30 percent rating. The objective medical findings do not establish, such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech that was intermittently illogical, obscure, or irrelevant, neglect of personal appearance or hygiene and an inability to maintain effective relationships. Anxiety were consistently reported; however, there is no indication that such anxiety affected the Veteran’s ability to function independently or adapt to stressful circumstances as he maintained his long-term employment and was able to retire from there. Moreover, the Veteran did not demonstrate occupational and social impairment with deficiencies in most areas for the appeal period prior to April 21, 2011. The Veteran has displayed some deficiency with regards to mood as he has consistently reported anxiety and depression during the appeal period. However, the Veteran’s judgment and impulse control have been consistently found to not be impaired and thought processes have been consistently found to be appropriate. He has reported maintaining a relationship with his wife of over 59 years, that he has no close friends and avoided social interaction. Moreover, there have been no findings of, and the Veteran has not reported, psychosis, delusions, visual hallucinations or inappropriate behavior. Although the Veteran reported that his employment as a teacher did not go well because of his PTSD, he maintained long-term employment after that as an accountant. Finally, the Veteran did not attend school or attempt schooling during the appellate period. Therefore, occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood has not been demonstrated. Moreover, the Board finds that the criteria for a 100 percent rating under the General Rating Formula are not met. In this regard, the evidence does not show that the Veteran has 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. In this regard, there was no evidence of perceptual disturbances such as hallucinations, mania or psychosis found on mental status examination. The Veteran’s thought processes were found to not be impaired, his thought content was not found to include delusions or psychosis and he has not reported delusions or hallucinations. While the Veteran reported suicidal ideations in the January 2011 statement in support of claim, suicide attempts were not reported and there is otherwise no indication that he is in persistent danger of hurting himself or others. He has been found to be have appropriate hygiene and appearance and he has not alleged being unable to maintain minimal personal hygiene. Additionally, the Veteran’s PTSD symptoms are not similar in severity, frequency, or duration as found necessary for the assignment of a 100 percent rating for this appeal period. Higher initial rating for PTSD in excess of 70 percent from April 21, 2011 to July 15, 2012 During this period, the Veteran’s PTSD has been assigned a 70 percent rating. In the May 2012 rating decision, the RO awarded an increased rating to 70 percent effective April 21, 2011. The Veteran was afforded a VA exam in April 2011. The examiner noted that the Veteran suffered from depressed moods, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened effect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, unprovoked irritability, impaired impulse control, difficulty adapting to stress, inability to establish and maintain effective relationships. The examiner noted that the Veteran had occupational social impairment with deficiencies in most areas. The Veteran retired in 1986 and has not worked since. He lives with his wife of 52 years. See VA Examination, April 2011. The Board finds that the Veteran’s PTSD most closely approximates the 70 percent rating for the appeal period since April 21, 2011. In this regard, the Board finds that the PTSD is manifested in 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; 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 Board finds that such symptomatology, to specifically include the Veteran’s suicidal ideation, panic attacks, isolation, depression are contemplated in his current 70 percent rating. The Board further finds that the criteria for a 100 percent rating under the General Rating Formula are not met for this appeal period. In this regard, the evidence does not show that the Veteran has 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. In this regard, there was no evidence of perceptual disturbances such as hallucinations, mania or psychosis found on mental status examination. The Veteran’s thought processes were found to not be impaired, his thought content was not found to include delusions or psychosis and he has not reported delusions or hallucinations. While the Veteran reported suicidal ideations, suicide attempts were not reported and there is otherwise no indication that he is in persistent danger of hurting himself or others. He has consistently been found to be have appropriate hygiene and appearance and he has not alleged being unable to maintain minimal personal hygiene. Additionally, the Veteran’s PTSD symptoms are not similar in severity, frequency, or duration as found necessary for the assignment of a 100 percent rating. The Board has considered the Veteran’s assertions as to his symptomatology and the severity of his condition, but, to the extent he believes he is entitled to higher rating, concludes that the findings during medical evaluation, which duly considered the Veteran’s subjective symptoms, are more probative than the Veteran’s lay assertions to that effect. In sum, the Board finds that the preponderance of the competent and probative evidence does not support a finding of total occupational and social impairment. Rather, the evidence more nearly approximates the criteria for a 70 percent rating; thus, entitlement to an increased rating is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a higher rating, to that extent the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). REASONS FOR REMAND Entitlement to service connection for prostate cancer and skin cancer, secondary to radiation, is remanded. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Board June 2014 remand instructed the RO to obtain information regarding the Veteran’s exposure to radiation from the U.S. Army and to follow the procedures for developing the “other exposure” ionizing radiation claims by obtaining a probable dose estimate from the Under Secretary for Health. Although the RO obtained the information from the U.S. Army, the file was not referred to the Under Secretary. Additionally, an April 2018 letter from the Army Dosimetry Center indicates that they had researched the files for records of exposure to ionizing radiation for the Veteran, that they were unable to locate any records for him, and that their records dated back to mid-1954 only. However, the Veteran was at Camp Gifu in 1952. No further actions were taken by the RO to determine the types of training and activities that were conducted at Camp Gifu in 1952 and whether any of the participants had potential exposure to ionizing radiation and/or other chemical/biologic exposures. On remand, the appropriate entities should be contacted to obtain such information. The matters are REMANDED for the following action: 1. Contact the appropriate entity to determine the types of training and activities which were conducted at Camp Gifu in 1952 and whether any of the participants had potential exposure to ionizing radiation and/or other chemical/biologic exposures. The RO is advised of the Board’s factual finding that the Veteran’s report of attending CBRS at Camp Gifu, Japan in 1952 is credible. 2. After completing the development above, the RO should follow the procedures for developing other exposure ionizing radiation claims by obtaining a probable dose estimate from the Under Secretary for Health pursuant to 38 C.F.R. § 3.311(a)(2)(iii). The Under Secretary for Health should be provided the Veteran’s January 2009 Radiation Risk Statement, the soldier statement received in July 2010 and any information provided by the U.S. Army and/or any other appropriate entities to determine the types of training and activities which were conducted at Camp Gifu. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk