Citation Nr: 1806491	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-18 490	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. An, Associate Counsel






INTRODUCTION

The Veteran had active duty from May 1988 to August 1988 and from December 2004 to December 2005.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama, that granted the Veteran service connection for PTSD and assigned an initial 10 percent rating.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.


FINDING OF FACT

For the entirety of the appeal period, the Veteran's PTSD has been manifested by symptoms no worse than depression, anxiety, panic attacks, nightmares, chronic sleep impairment and difficulty establishing and maintaining effective relationships that approximate occupational and social impairment with reduced reliability and productivity.  


CONCLUSION OF LAW

The criteria for an initial rating of 50 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify has been met.  See VA correspondence dated in November 2010.  All identified and available authorized records relevant to the matter, to include treatment records and examinations, have been requested or obtained.  VA has met all statutory and regulatory notice and duty to assist provisions.  The Veteran has not alleged prejudice with regard to VA's statutory and regulatory notice and duty to assist provisions.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .").

The Veteran contends that his PTSD is more disabling than reflected by the assigned 30 percent disability rating. His PTSD has been rated under Diagnostic Code 9434, which is rated under the General Rating Formula for Mental Disorders.  38 C.F.R. § 38 C.F.R. § 4.130, Diagnostic Code 9411.  Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation), 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 9434.

A 50 percent rating requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.  

A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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. Id.  

A 100 percent rating is warranted if 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.

When rating a mental disorder, VA must consider the frequency, severity, and duration of a veteran's psychiatric symptoms, the length of remissions, and his/her capacity for adjustment during periods of remission. The rating agency must assign a rating 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. The rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126.

The Veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).

Also relevant to the Board's analysis is the Global Assessment of Functioning (GAF) score assigned to the Veteran, which is a scale that indicates the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); 38 C.F.R. § 4.130. 

GAF scores ranging from 41 to 50 indicate 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). GAF scores ranging from 51 to 60 indicate 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). GAF scores ranging from 61 to 70 indicate some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.130.

Turning to the evidence of record, the Board notes that the Veteran's private treatment records from September 2010 to November 2010 reflect multiple psychiatric disorders to include PTSD, a depressive disorder, and a mood disorder. 

A VA examination of June 2011 reflects the Veteran's reports of ongoing treatment for his PTSD.  The examiner noted that the Veteran had some impairment in functioning socially and with his family and opined that PTSD was due to the Veteran's combat experience.  He was assessed a GAF score of 55. 

A PTSD disability benefits questionnaire of August 2013 reflects diagnoses of PTSD, major depression, and partner relational problems.  The examiner, a licensed social worker, noted symptoms of depression, sleeping problems, and anxiety and recorded the Veteran's reports of weekly panic attacks.  She also acknowledged the Veteran's reports of relationship problems and difficulty in establishing and maintaining effective work and social relationships.  The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The examiner assigned a GAF score of 55.  

VA treatment records of January 2014 reflect the Veteran's reports of having PTSD and depressive symptoms including nightmares, decreased energy and sleep, loss of appetite and feeling hopeless at times.  The examiner noted a GAF score of 60. 

VA treatment records of June 2016 reflect the Veteran's reports of having combat nightmares about Desert Shield three times a week with night sweats.  He also reported significant loss of weight and decreased energy.  The VA psychiatrist found no significant depression and indicated that the Veteran was "currently stable" and responding well to treatment. 

In July 2016, the Veteran was afforded another VA examination performed by the same VA psychologist who evaluated the Veteran in 2011.  The examiner acknowledged the Veteran's symptoms of anxiety, suspiciousness, and chronic sleep impairment.  The examiner also indicated occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medications.

Upon review of the evidence of record, the Board finds that, the Veteran's PTSD more nearly approximates a 50 percent rating, but no higher.  In so concluding, the Board finds persuasive the competent evidence of record, to include the Veteran's treatment records, VA examination reports, private treatment records, and lay statements, that clearly demonstrate his psychiatric symptomatology as a result of his PTSD.  Specifically, the record establishes the Veteran's PTSD is manifested by ongoing difficulty with recurrent nightmares, panic attacks, isolation, depression, anxiety and chronic sleep impairment as reflected in medical records of August 2013, January 2014, and June 2016.  The Board notes that these documented symptoms most closely align with occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work relationships.  
Additionally, the Board finds the GAF score of 55 assigned in June 2011 and August 2013, indicates moderate range of psychiatric symptomatology which coincides with the rating of 50 percent.  Accordingly, the Board finds that the criteria for a 50 percent disability rating have been met and an increase evaluation warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411.

The Board finds that the next higher rating, 70 percent, is not warranted at any time during the relevant appeal period.  In this regard, the Board acknowledges that the August 2013 evaluation resulted in the finding of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, and/or mood. See 38 C.F.R. § 4.130, DC 9411.  Significantly, however, at the same evaluation, the examiner also assigned a GAF score of 55, which illustrates symptoms of moderate severity.  

Moreover, it is not just the presence of psychiatric symptoms that mandates the assignment of a higher rating, but rather, the Board must evaluate how the reported symptoms impact the Veteran's occupational and social functioning. Vazquez-Claudio, 713 F.3d at 117.  That is, for instance, simply because the Veteran has panic attacks and depression, and because the 70 percent level contemplates panic and depression does not mean his psychiatric disorder rises to the 70 percent level.  Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of panic attacks and depression.

Additionally, the Board has taken into consideration the frequency, severity, and duration of the Veteran's symptoms of PTSD, as well as his statements regarding his assessment of the severity of his symptoms.  However, the symptoms present here, and their resulting effects, do not rise to the level of the next higher ratings.  Specifically, while the Veteran experienced panic attacks and depression, such symptoms did not occur as frequency or with such severity as the "near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively" that warrants a 70 percent rating.  

Further, at no time, does the evidence of record show that the Veteran had other symptoms characteristic of a 70 percent rating such as suicidal ideation, obsessional rituals, speech intermittently illogical, obscure, or irrelevant, near-continuous depression affecting the ability to function independently, appropriately and effectively; impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene.  

Finally, the Board observes that the Veteran has remained married throughout the appeal and has maintained employment.  Thus, it cannot be concluded that the Veteran has established total occupational and social impairment. 38 C.F.R. § 4.130.  For the foregoing reasons, the Board finds that, for the entirety of the appeal period, an initial rating of 50 percent, but no higher, for PTSD is warranted. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411.


ORDER


Entitlement to an initial disability rating of 50 percent, but no higher, for PTSD is granted, subject to the law and regulations governing payment of monetary benefits.




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs