Citation Nr: 1806824 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 15-36 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder from July 25, 2011 to April 25, 2016. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder from April 25, 2016 to October 6, 2017. 3. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder from October 6, 2017 forward. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from June 1998 to June 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. A hearing in this matter was held before the undersigned veterans law judge in July 2016 in Fort Harrison, Montana. The transcript is of record. The Veteran's rating for posttraumatic stress disorder was increased to 30 percent as of April 25, 2016 and to 70 percent as of October 6, 2017. As these increases do not represent a full grant of benefits sought, the issue remains on appeal. This case was previously before the Board in September 2017, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Prior to October 6, 2017, posttraumatic stress disorder was manifested by anxiety, chronic sleep impairment, memory loss, panic attacks occurring multiple times a day, and difficulty adapting to stressful circumstances, all resulting in occupational and social impairment with deficiencies in most areas. 2. Posttraumatic stress disorder is manifested by anxiety, chronic sleep impairment, memory loss, panic attacks occurring multiple times a day, and productive of no more than occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to October 6, 2017 the criteria for a 70 percent rating for posttraumatic stress disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a rating in excess of 70 percent for posttraumatic stress disorder not been met or approximated. U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS All duties under VCAA have been met. During the hearing, the VLJ clarified the issues, asked if there was any outstanding evidence, explained the concept of increased ratings, held the file open so as to provide an opportunity to submit evidence, and identified potential evidentiary defects. The actions of the VLJ comply with 38 C.F.R. § 3.103. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as staged ratings. Id. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. 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. If there is a question as to which evaluation to apply to the Veteran's disability, 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. The Veteran is rated under DC 9411, which is rated according to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted when there is "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 continuous medication." 38 C.F.R. § 4.130, DC 9411. 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). Id. 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; difficulty in establishing and maintaining effective work and social relationships." Id. A 70 percent rating 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); inability to establish and maintain effective relationships." Id. A 100 percent rating 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; memory loss for names of close relatives, own occupation, or name." Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The Board recognizes that GAF scores are not utilized in the DSM-5 (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders). Prior to October 6, 2017 The record establishes that the Veteran reported chronic sleep impairment, memory loss, and frequent panic attacks, all of which she is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). At her hearing, she explained that she switched jobs several times during this period due to finding the jobs too stressful to continue. She reported using sick days immediately upon earning them so that she could "hide" from everything. She consistently reported that she "wants to die" but that she would never act on that feeling. As there is no indication that the Veteran is not credible, these statements are entitled to probative weight. Treatment records reflect complaints of poor sleep and irritability. Several records state that there is no suicidal ideation, but others note that the Veteran thinks about suicide although she is firm in saying she would never do so. The Veteran was provided with VA examinations in December 2014 and July 2015. At her December 2014 examination, the examiner noted that the Veteran reported unwanted memories, nightmares, too little sleep, irritability, and concentration issues. The examiner also noted "some history of avoidance behavior described," but did not provide specifics. The Veteran was oriented to time, place, person, and purpose of examination, and her speech, hygiene and grooming were unremarkable. Overall, the examiner found that the Veteran had "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 medication." At the July 2015 examination, the examiner stated that the Veteran's symptoms did not warrant a diagnosis of PTSD under the DSM-5. The examiner noted reported symptoms of startling easily, nightmares, and feeling "not suicidal but some days just want to die." The Veteran was oriented to person, place, and time, and her speech was clear and coherent. Her "mood and affect was contained anxiety." On her Form 9 submitted September 2015, the Veteran alleged that the examiners at both examinations failed to take into account her reports of daily panic attacks. Further, she claimed that the examiner for her July 2015 examination did not accurately categorize her reports of nightmares and reliving of events. The Veteran reiterated at her July 2016 hearing that the previous examinations did not accurately reflect her symptoms. We have considered such assertions. The Veteran reported chronic sleep impairment, memory loss, and frequent panic attacks, all of which she is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In a statement submitted in July 2016 she stated that she has only one friend and that she lives outside of town because she "can't handle neighbors" and "can't trust anyone." The Veteran submitted a statement from a coworker in July 2016 stating that the Veteran has startle responses on a daily basis and often forgets common words. The coworker recounted the Veteran having a panic attack due to their boss approaching her from behind, and stated that the Veteran's issues are so severe that the office is looking into putting a mirror over the Veteran's desk to help her avoid being startled. As these are all lay observable symptoms, she is competent to report them. A treatment note from April 2016 states that the Veteran reported up to three panic attacks per day and that she had switched jobs several times due to stress. The Board finds that the Veteran's symptoms during this period warrant a rating of 70 percent. She again reported daily panic attacks and startle responses that indicate a state of near-continuous panic, as well as passive suicidal ideation throughout the period. She lived outside of town to avoid neighbors and had only one friend, suggesting difficulty in establishing and maintaining social relationships. The Board finds that these symptoms result in occupational and social impairment with deficiencies in most areas. To warrant a 100 percent rating, the Veteran's symptoms would need to be severe enough to cause total occupational and social impairment. That has not been shown here. The Veteran does not have gross impairment in thought processes or communication, persistent delusions or hallucinations, does not display grossly inappropriate behavior or disorientation to time or place, and is capable of performing activities of daily living. The Veteran's symptoms do not rise to the level of total occupational and social impairment. Therefore, a rating in excess of 70 percent is not warranted. 70 Percent In October 2017, the Veteran had another VA examination. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control. The examiner noted that the Veteran "was very guarded and intermittently emotional, very tearful on occasion." The Board finds that the Veteran's symptoms most closely approximate the criteria for a 70 percent rating. The Veteran has chronic sleep impairment, daily panic attacks, frequent passive suicidal ideation, memory loss and difficulty with speaking, depression, and anxiety, which make it difficult for her to form new social relationships and interfere with her work, resulting in occupational and social impairment with deficiencies in most areas. To warrant a 100 percent rating, the Veteran's symptoms would need to be severe enough to cause total occupational and social impairment. That has not been shown here. The Veteran does not have gross impairment in thought processes or communication, persistent delusions or hallucinations, does not display grossly inappropriate behavior or disorientation to time or place, and is capable of performing activities of daily living. The Veteran's symptoms, though significant, do not rise to the level of total occupational and social impairment. Therefore, a rating in excess of 70 percent is not warranted. General Statement The record clearly establishes that different examiners have described manifestations in different ways. However, her testimony was credible and the report of suicidal thoughts have appears in the treatment records since the beginning. We find it unlikely that the appellant became worse on the date of a more thorough examination. ORDER Prior to October 6, 2017, a 70 percent evaluation for PTSD is granted. Entitlement to a rating in excess of 70 percent for PTSD is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs