Citation Nr: 18156841 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 13-18 085 DATE: December 11, 2018 ORDER Entitlement to a disability rating in excess of 50 percent from April 1, 2010, to June 3, 2013, for posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and alcohol dependence is denied. FINDING OF FACT Throughout the period of this claim, the Veteran’s PTSD, MDD, and alcohol dependence, has not been manifest 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); or an inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent from April 1, 2010, to June 3, 2013, for PTSD, MDD, and alcohol dependence have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2005 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, and a May 2013 rating decision issued by the VA RO in Providence, Rhode Island. Jurisdiction currently rests with Providence, Rhode Island. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2015. A transcript of the hearing is of record. The Board remanded this issue in September 2015. In a September 2017 decision, the Board partially allowed an increased rating for the Veteran’s PTSD, MDD, and alcohol dependence claim. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Joint Motion for Partial Remand (JMPR), the Court remanded the Veteran’s increased rating claim for further adjudication, but only to the extent that a rating higher than 50 percent was denied for the period from April 1, 2010, to June 3, 2013. Entitlement to a disability rating in excess of 50 percent from April 1, 2010, to June 3, 2013, for posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and alcohol dependence Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (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. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran claims entitlement to an increased disability rating for his service-connected PTSD, MDD, and alcohol dependence from April 1, 2010, to June 3, 2013, which he asserts is more severe than the 50 percent rating assigned. A 50 percent rating is warranted for PTSD where 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 in understanding complex commands; impairment of short- and long-term memory such as, 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 for PTSD contemplates 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. Id. Finally, a 100 percent disability rating is warranted for PTSD resulting in 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 evidence considered in determining the level of impairment under the Rating Schedule for PTSD is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In evaluating the evidence, the Board has considered the various 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. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. A GAF score of 41-50 is assigned where 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).” A GAF score of 31 - 40 contemplates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Id. Current mental health evaluations no longer use the GAF as an assessment of functioning. Compare Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) with Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (DSM-5); see also 38 C.F.R. § 4.125 (2017). In an April 2010 VA treatment record, the Veteran reported that he was pulled aside by his supervisor because people were worried he was going to snap. He said he was loud and told people how he felt at work, but disappeared when he was at home. Upon examination, he was well-groomed and polite, but with a flat affect. He reported his mood to be “ok.” His thought process was linear but slow, and he required several clarifications as to how to take his medications. He had limited insight and judgment. He was assigned a GAF score of 52. In another April 2010 VA treatment record, the Veteran reported that he left work within 2 hours of arriving because he felt like he might put his hands on someone and did not want to do that. In a subsequent April 2010 VA treatment record, the Veteran reported that he was the worst he had ever been with PTSD. The Veteran reported feelings of depression and anxiety, decreased energy, anhedonia, losing temper and irritable, insomnia, decreased appetite, problems with memory especially recall, a few flashbacks, and recollections of deployment. The Veteran denied suicidal ideation presently or in the past. In a May 2010 VA treatment record, the Veteran reported that his sleeping medication was working well and allowing him to sleep through the night. He said he continued with PTSD symptoms and described recent trigger/reminder when at a wake. He said the anger and aggravation were still there but he was managing it better. He also said he was drinking significantly less. In a June 2010 VA treatment record, the Veteran reported continuing with his relationship and being happy with it. He said he slept better when they were together. He still had various symptoms of PTSD with recurrence, detachment, and irritability. Upon examination, the Veteran was well-groomed and polite. His affect was dysthymic and his mood was “sort of lost.” His motor activity and speech were within normal limits. His thought process was somewhat blocked. The Veteran denied hallucinations, delusions, and suicidal and homicidal ideation. He was alert and his orientation, attention, and concentration were within normal limits. Insight and judgment were adequate. A GAF score of 56 was assigned. In an August 2010 VA treatment record, the Veteran said that he continued with his plan to start nursing school in January. He said recently his sleep was not good, but that this was because he found out about a serious injury of a fellow soldier; prior to this he said he was sleeping well. He denied feeling depressed but said he would still “snap” but only when at work. He continued with a good relationship with his girlfriend, daughter, and family. Upon examination, the Veteran was noted to be dressed in a Sheriff’s uniform. He was polite and his affect was subdued with an occasional smile. His motor activity and speech were within normal limits. Thought process was linear. The Veteran denied hallucinations, delusions, and suicidal and homicidal ideation. Orientation, attention, and concentration were within normal limits. Insight and judgment were fair. A GAF score of 63 was assigned. In a December 2010 VA treatment record, the Veteran said that he was not feeling depressed due to his medication. However, it was noted that a therapist described the Veteran to experience a dissociative episode where he went to the store and bought chains even though he had no use for them. These episodes only occurred when by himself and often when he was smoking cigarettes. He reported sleep issues. His goal was to retire in January and sign up for classes. It was noted that the Veteran’s episodes appeared most likely dissociative and not related to seizures but this was not confirmed. Upon examination, the Veteran was well-groomed and polite. His affect was flat and his mood was “ok.” Motor activity and speech were within normal limits. Thought process was linear. The Veteran denied hallucinations, delusions, and suicidal and homicidal ideation. Orientation, attention, and concentration were within normal limits. Insight and judgment were good. A GAF score of 60 was assigned. In a March 2011 VA treatment record, the Veteran sad he experienced some dissociation and had a diagnosis of seizure disorder. He continued with school to become a nurse and continued with a good relationship with his girlfriend. He said his sleep was “off and on” and depended on stress such as having an examination at school. Upon examination, the Veteran was very casual, clean, and polite. The Veteran’s affect was flat and his mood was “not bad.” Motor activity and speech was within normal limits. Thought process was linear. The Veteran denied hallucinations, delusions, and suicidal and homicidal ideation. Orientation, attention, and concentration were within normal limits. Insight and judgment were adequate. A GAF score of 57 was assigned. In an April 2011 VA treatment record, the Veteran reported feeling on edge and having more problems with sleep because of circumstance. He was attending school with high expectations and having problems with his ex-wife’s attitude toward custody/attention to his daughter. He described an incident in school during a presentation which caused him to have an emotional episode; however, he received an A on the project anyway. Overall, the Veteran could not measure, be definitive, or commit to answer about mood/irritability/anxiety. He was getting along with his girlfriend well, and had a good relationship with his daughter and girlfriend. Upon examination, the Veteran was well-groomed and polite. His affect was restricted, no change. Mood was “fluctuating.” Motor activity and speech were within normal limits. Thought process was linear. Hallucinations, delusions, and suicidal and homicidal ideation were within normal limits. Insight and judgment were adequate. A GAF score of 56 was assigned. In a May 2011 VA examination, the Veteran reported that he was taking classes in a local college, all of which he was passing. His plan was to go into nursing. The Veteran said that he was in a relationship, which he described and “on and off.” He said he had joint custody with his daughter. The Veteran said that he quit his job as a correctional officer because he was not getting along with his supervisors or coworkers and was getting too aggressive with the inmates. The Veteran reported issues with anger, sleep, stress, and anxiety. Upon examination, the Veteran was neither pleasant nor particularly cooperative. He tended to withhold information, and questions had to be repeatedly asked. Eye contact was poor. Speech was minimal and hesitant, and he would very seldom speak in complete sentences. He was reasonably dressed and groomed. He appeared to be somewhat withdrawn and initially agitated; however, later he exhibited some motor retardation with regards to his speech. Motor abnormalities were not seen. He denied auditory, tactile, or visual hallucinations, and he was oriented. There was no evidence of altered level of consciousness. Memory was normal and concentration was overall unimpaired. He denied any obsessive thinking or compulsive behaviors. He described his mood as usually angry. His affect was sullen and flat. He denied any suicidal or homicidal ideation or any history of suicidal or assaultive behaviors. There was no evidence of impaired capacity to take care of himself. The Veteran denied any feelings of inadequacy or worthlessness, but stated that he felt hopeless sometimes. He reported sleep difficulties with nightmares once or twice per week. His interests and hobbies related to spending time with his daughter. He also did housework and yard work. He said he was irritable and tearful; he denied any symptoms of mania. He endorsed panic attacks that occurred usually once or less than once a month. The Veteran reported a good relationship with his parents, but was estranged from his sister. He said he had no friends and did not belong to any groups or clubs. He said he was casually acquainted with his neighbors. Concentration was noted to be unimpaired and the Veteran stated he had no problems completing every day household tasks, but tended to procrastinate on special projects. The Veteran reported daily recurrent and intrusive distressing recollections as well as recurring distressing dreams once or twice a week. He denied any flashbacks. He reported intense psychological distress at exposure to certain stimuli that symbolized or resembled aspects of the traumatic events such as the sound of helicopters or the smell of cesspools. The Veteran endorsed avoidance and feeling detached. He further endorsed symptoms of increased arousal which took the form of difficulty with sleep, irritability, and exaggerated startle response. However, the examiner noted that there were periods of remission. The examiner concluded that the Veteran’s depression and panic attacks had improved since the last examination. However, his alcohol use and dependence had increased. The examiner stated that the Veteran’s psychiatric symptoms had a moderate negative impact on his ability to obtain and maintain physical or sedentary employment, and his thought processes and communication skills were expected to cause significant interference with his social functioning. A GAF score of 50 was assigned. In a December 2011 VA opinion regarding the Veteran’s employability, the examiner listed some of the Veteran’s PTSD symptoms, which included the following: difficulty working with others, irritability, exaggerated startle, sleep deprivation, and difficulty interacting socially. In a March 2012 VA treatment record, the Veteran reported problems with alcohol. He said he was still going to school, doing well, and had a good relationship with his family. Upon examination, the Veteran was well-groomed, polite and friendly. Affect was euthymic and mood was “ok.” Motor activity and speech were within normal limits. Thought process was linear. The Veteran denied hallucinations, delusions, and suicidal and homicidal ideation. Orientation, attention, and concentration were within normal limits. Insight and judgment were adequate. A GAF score of 60 was assigned. In an October 2012 VA treatment record, the Veteran reported that he currently worked in corrections and felt that it was a stress reliever because he had authority. A GAF score of 65 was assigned. In an April 2013 VA treatment record, the Veteran reported he was stressed out, had sleeping issues, and his mood was up and down and aggravated. He said he did not get violent or withdrawn. He said he took classes and did not drink when he had classes but drank to excess in between. The Veteran reported that his mood swings, easy aggravation, depression, and anxiety had worsened and presented problems in relations and was leading to difficulties at work. Symptoms of the Veteran’s depression included decreased energy, anhedonia, losing temper, irritable, insomnia, decreased appetite, and problems with memory especially recall. He denied suicidal ideation. Symptoms of PTSD included a few flashbacks, and he was not sure if he was having nightmares, and he had recollections of deployment. The evidence considered in determining the level of impairment under the Rating Schedule for PTSD is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In the Joint Motion of May 2018, it was indicated that the Board had not adequately discussed the report of a VA examination conducted in May 2011. Overall, this examination shows a finding for no more than a 50 percent disability rating. Specifically, the Veteran exhibited symptoms of trouble sleeping, hypervigilance, avoidance, nightmares, depression, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, anxiety, panic attacks, memory loss, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. Although the examiner found that the Veteran’s psychiatric symptoms had a moderate negative impact on his ability to obtain and maintain physical or sedentary employment, and his thought processes and communication skills were expected to cause significant interference with his social functioning, the examiner never-the-less still noted many factors that were more consistent with a 50 percent rating than a 70 percent. There were no reports of suicidal or homicidal ideation. There were also no notes of obsessive or ritualistic behavior, or near continuous panic or depression. The Veteran was found to have a good relationship with his girlfriend and also had a good relationship with his parents and daughter. He attended school and performed well. He also did house work and yard work. Overall, even accepting that there is a moderate impact on employment and significant interference with social functioning, the overall impairment remains most consistent with the currently assigned 50 percent rating. In addition, VA treatment records ranging from April 2010 to June 2013 showed symptoms that did not warrant a disability rating higher than 50 percent. Specifically, the Veteran denied suicidal or homicidal ideation, mania or psychosis. His insight and judgment overall were found to be adequate. His speech and thought processes overall were found to be within normal limits. There was no paranoia or delusions. The Veteran was found to have a normal memory and recollection. His overall appearance was noted to be well-groomed and he was polite. The Veteran was assigned GAF scores ranging from 50 to 63. The Board notes that the Veteran reported episodes of dissociation; however, it was never confirmed whether these were related to his seizures or not. Moreover, even if the Veteran’s episodes of dissociation were determined to be part of the Veteran’s PTSD symptoms, these episodes are only mentioned twice throughout the 3 year period on appeal and the evidence as whole does not encompass symptoms of a severity to warrant a higher rating. Additionally, the Board notes the argument that the Veteran’s total disability based on individual unemployability (TDIU) claim was granted in part on the May 2011 VA examiner’s opinion regarding the Veteran’s employability. Specifically, the examiner stated that the Veteran’s thought processes and communication skills were expected to cause significant interference with his social functioning. However, overall, the evidence outside of the May 2011 VA examination shows that the Veteran’s speech and communication was within normal limits, as stated above. Also, the Veteran’s thought processes were found to be normal. Further, the examiner noted improvement in the Veteran’s symptoms since the prior examination. Finally, it is important to note that the Veteran’s granted TDIU claim was based not only on the Veteran’s PTSD, MDD, and alcohol dependence symptoms, but also on his other service-connected disabilities. The Board acknowledges the Veteran’s contentions that his PTSD, MDD, and alcohol dependence were more severe than the 50 percent disability rating. However, the Board finds that the Veteran’s VA treatment records and VA examination, as a whole, are more probative. From April 1, 2010, to June 3, 2013, the Veteran had a good relationship with his girlfriend, parents, and daughter. He attended school, performed well, and did house work and yard work. His memory was intact, his judgment and insight were adequate, his speech was within normal limits and his thought process was linear. He had no hallucinations, delusions, or suicidal or homicidal ideation. He did not have near continuous panic attacks or depression. He was consistently found to be well-groomed, and he did not endorse or show any signs of obsessive or ritualistic behavior. Accordingly, the Board finds that a rating in excess of 50 percent is not warranted from April 1, 2010, to June 3, 2013. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence during the appeal period is against the Veteran’s claim for a disability rating in excess of 50 percent for his service-connected PTSD, MDD, and alcohol dependence the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel