Citation Nr: 1806663 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-27 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 30 percent prior to January 16, 2015, for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1963 to April 1976. This matter is before the Board of Veteran's Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which awarded service connection for PTSD and assigned a 10 percent initial rating, effective December 7, 2010. In July 2013 the RO increased the initial rating to 30 percent. In May 2015, the Board remanded the issue for additional development. In July 2015, the RO issued a rating decision awarding a 70 percent rating for PTSD, effective January 16, 2015. In an August 2015 statement, the Veteran requested a Board hearing. However, in December 2016, his representative withdrew the request. In January 2017, the Board granted a 30 percent rating for PTSD prior to January 16, 2015, and denied a rating in excess of 70 percent thereafter. The Veteran appealed the Board's January 2017 decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in September 2017 granting a Joint Motion for Partial Remand (JMPR) filed by the Veteran and VA's Office of General Counsel. The Court's order vacated and remanded that part of the Board's January 2017 decision that denied entitlement to an initial rating in excess of 30 percent prior to January 16, 2015, for service-connected PTSD. The basis for the JMPR was that the Board erred by failing to provide an adequate statement of reasons or bases for its determination that the Veteran was not entitled to an initial rating in excess of 30 percent prior to January 16, 2015, for his PTSD. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Prior to January 16, 2015, the Veteran's PTSD was manifested by symptoms of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating of 50 percent prior to January 16, 2015, for PTSD are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim decided herein, no notice deficiencies have been alleged by the Veteran or his representative. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.") VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Here, the record reflects that VA made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, and the Veteran's lay statements. As noted above, the Board remanded this case in May 2015, in part, to obtain outstanding VA treatment records dated July 2013 to the present. Updated treatment records are now a part of the claims file. In light of the foregoing, the Board finds that there has been substantial compliance with its May 2015 directives with regard to obtaining outstanding records. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, neither the Veteran, nor his representative, has identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal. The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). In this case, the Veteran was afforded VA examinations to evaluate his PTSD in February 2011 and June 2015. The Board finds that, when taken together, the examinations are adequate to evaluate the Veteran's service-connected PTSD as they include interviews with the Veteran, reviews of the record, and full examinations, addressing the relevant rating criteria. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claim and that no further examinations are necessary. The Board also finds that the most recent examination report substantially complies with its previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board remanded the claim in May 2015 in order to provide the Veteran with a new VA examination. In its remand directives, the Board asked the VA examiner to describe in detail all current manifestations of the Veteran's PTSD and assign a Global Assessment of Functioning (GAF) score, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. In June 2015, the Veteran underwent examination, and the examiner specifically discussed the manifestations of the Veteran's PTSD, as well as the effects that his symptoms have on his psychological, social, and occupational functioning. The Board acknowledges that part of the basis for the JMPR was that the Board failed to discuss how the June 2015 examination complied with its May 2015 remand directives when the June 2015 examiner failed to assign a GAF score as set forth in the remand directive. However, the Board notes that prior to the completion of the June 2015 VA examination, the new Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V) was issued. This updated medical text, which does not utilize GAF scores to assess mental health disorders and which is incorporated by reference in VA regulations for rating purposes pursuant to 38 C.F.R. § 4.130, see 79 Fed. Reg. 45093(Aug. 4, 2014), recommends that GAF scores be dropped due to their "conceptual lack of clarity." See DSM-V, at 16. Thus, while the June 2015 VA examination report did not include a GAF score as the Veteran was assessed using the DSM-V, the Board finds that the examination report contains sufficient information and rationale to adjudicate the Veteran's increased rating claim. Moreover, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). Thus, the Veteran has not been prejudiced by the VA examiner's failure to provide a GAF score. Therefore, despite the lack of a GAF score, the Board finds that there has been substantial compliance with its May 2015 remand directives. Stegall, 11 Vet. App. at 268. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Increased Rating for PTSD A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996). The Veteran's psychiatric disorder has been rated as 30 percent disabling prior to January 16, 2015. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which is rated under the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, 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 in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is 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 an inability to establish and maintain effective relationships. Id. The criteria for a 100 percent rating are 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings of psychiatric disabilities shall be assigned 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. Further, ratings are assigned according to the manifestation of particular symptoms. However, the various symptoms listed after the terms "occupational and social impairment with deficiencies in most areas" and "total occupational and social impairment" in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). It is noted that prior to August 4, 2014, VA's Rating Schedule that addresses service connected psychiatric disabilities was based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130. Like in this case, diagnoses many times included an Axis V diagnosis, or a GAF score. As the Veteran's PTSD claim was originally appealed to the Board prior to the adoption of the DSM-V, the DSM-IV criteria will also be reviewed in the analysis set forth below. The GAF score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends). See DSM-IV. A GAF of 31-40 is defined as exhibiting some impairment in reality testing or communication (speech is at times illogical, obscure, or irrelevant), or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood, (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school). Id. 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). Id. A GAF score of 51 to 60 is indicative of moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). Id. GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. Id. Prior to the Veteran's December 2010 claim, he underwent a VA mental health assessment. See August 2010 Mental Health Consult. At that time, the Veteran reported persistent sleep problems and feeling on guard with anxiousness building up. The examiner observed euthymic mood, but no depression and normal speech. The examiner reported that the Veteran was heavily involved with his church and with various church-related volunteer efforts. The examiner assigned the Veteran a GAF score of 68. In December 2010, the Veteran reported continued insomnia during a VA mental health clinic appointment. He reported decreased nightmares with fewer flashbacks. The clinician reported that the Veteran was calm, cooperative, pleasant and maintained good eye contact. His mood was "ok". The Veteran reported that group therapy was beneficial, and that his church ministry helped him keep his mind "off things." The clinician assigned the Veteran a GAF score of 55. In January 2011, clinical records showed that the Veteran reported improved sleep, as well as a decreased frequency of nightmare and flashbacks. The Veteran also reported that therapy groups had been very helpful. In February 2011, the Veteran underwent a VA examination for his PTSD. The examiner described his mood as calm and compliant, his thought processes as linear, and thought content as "non-bizarre." The Veteran denied suicidal ideation, homicidal ideation, hallucinations and paranoid ideation. Insight and judgment were noted as good. The Veteran reported continued trouble sleeping, although he noted an improvement to five to six hours of sleep per night since starting medication. He reported that he avoided crowds and loud noise as much as possible. His relationships with his wife, children and grandchildren were noted as good, and he reported having a small group of friends that he plays cards with from time to time. His major source of social interaction beyond family was within the church. The examiner characterized the Veteran's PTSD as mild and assessed a GAF score of 82. From May 2011 through January 2012, the Veteran was assigned a GAF of 60 during VA mental health clinic appointments. During this period, the Veteran reported a decrease in the frequency of nightmares and flashbacks but continued to show signs of sleep disturbance. He reported a good relationship with his family and reported volunteering with his church. Throughout the remainder of the appellate period, the Veteran continued to report sleep disturbances and reported isolating himself. See generally July 2013 Mental Health Note, August 2013 Mental Health Note, November 2013 Mental Health Note, January 2014 Mental Health Note, March 2014 Mental Health Note, and May 2014 Mental Health Note. The Veteran reported some irritability during this time period; however reported a good relationship with his family. See id. Additionally, the Veteran reported continued volunteering with his church. Id. The Board finds that while the Veteran's symptoms during the appellate period do not show occupational and social impairment with reduced reliability and productive, the GAF scores assigned by VA mental health providers during this period are indicative of moderate symptoms or moderate difficulty in social or occupational functioning. The Board finds that the evidence is at least in equipoise, and therefore, in resolving all reasonable doubt in the Veteran's favor, the Veteran's claim for an increased rating of 50 percent prior to January 16, 2015, for service-connected PTSD must be granted. ORDER An initial rating of 50 percent prior to January 16, 2015, for the service-connected PTSD is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs