Citation Nr: 1808742	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  12-28 617	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

L. D. Logan, Associate Counsel






INTRODUCTION

The Veteran served on active duty from April 1987 to July 1995, and his service awards and decorations include the Combat Action Ribbon.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA), which continued a 30 percent rating. 

Historically, in an August 2008 rating decision, the Veteran, in pertinent part, was granted service connection for PTSD, with an initial rating of 30 percent, effective, December 30, 2007.  The Veteran filed a claim for an increased rating in October 2009, and was denied a rating in excess of 30 percent in the March 2010 rating decision.  The Veteran filed a notice of disagreement and perfected his appeal in October 2012.

The Veteran requested an informal hearing before a Decision Review Officer and one was scheduled for April 2015.  However, the Veteran failed to report to the hearing.  The Board deems the Veteran's request for such a hearing to be withdrawn.  

FINDING OF FACT

For the entire rating period on appeal, the Veteran's PTSD has not more nearly approximated occupational and social impairment with reduced reliability and productivity.  


CONCLUSION OF LAW

For the entire period on appeal, the criteria for a disability rating in excess of 30 percent for PTSD have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 
§§ 4.1, 4.3, 4.21, 4.130, Diagnostic Code (DC) 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matters

VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also 38 C.F.R. § 3.326 (a) (2017).  Examinations will be requested whenever VA determines that there is a need to determine the current severity of a disability.  38 C.F.R. § 3.159 (2017).  The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect.  See Weggenmann, 5 Vet. App. at 284; Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). 

The Veteran in this case last underwent a VA mental health examination in February 2010 to determine the severity of his PTSD and the examination findings are adequate to decide the claim.  To the extent that the age of the examination raises the question of obtaining a new examination, the Board finds that it does not.  The Veteran has not asserted and the evidence does not show any worsening of his PTSD.  The evidence of record is minimal, and since the February 2010 examination, entirely no medical evidence has been associated with the claims file.  In fact, aside from argument from his representative, there has been no direct communication from the Veteran since his submission of his 2012 substantive appeal.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The duty to assist is not always a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence).  In sum, given the adequacy of the February 2010 VA examination and the lack of any medical or lay evidence of an increase of severity thereafter, the Board finds that it has no duty to obtain an additional VA examination prior to adjudicating the appeal.   Moreover, the Veteran has not challenged the adequacy of the examination.  See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010).

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and any other contentions reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).


Pertinent Legal Criteria for Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155 (2012).  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability, therefrom, and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two disability ratings shall be applied, the higher rating 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 the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, if a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

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 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).  When evaluating the level of disability from a mental disorder, VA also 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.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr, 21 Vet. App. 303.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (Rating Formula) for Mental Disorders.  38 C.F.R. § 4.130, DC 9411 (2017).

Under DC 9411, a 30 percent rating is assigned for PTSD manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an 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, and mild memory loss (such as forgetting names, directions, recent events). Id.

A 50 percent rating under DC 9411 is warranted for 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 if the evidence establishes 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); and/or inability to establish and maintain effective relationships.  Id

A 100 percent rating (total occupational and social impairment) is warranted 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.

In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability.  See 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so).

When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  The use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase 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).  Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Id. at 442.  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118. 

The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general Rating Formula for mental disorders is 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; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous.  

In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5).  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned.  See Mauerhan, 16 Vet. App. 436.

Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100 reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). 

GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work).   GAF scores from 61 to 70 reflect 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, with some meaningful interpersonal relationships.   GAF scores ranging from 51 to 60 reflect 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).   Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job).  GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work).  DSM-IV at 46-47.

Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV.  The amendments replace those references with references to the recently updated "DSM-5."  As the Veteran's claim was certified to the Board prior to August 4, 2014, the DSM-5 is not applicable to this case.  Thus, in reviewing the evidence of record, the Board will consider the assigned GAF score; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability.  Rather, GAF scores 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) (2017).


Increased Rating Analysis

The Veteran seeks a rating higher than 30 percent for his service-connected PTSD. 

Turning to the relevant evidence, VA treatment notes beginning April 2008 indicate the Veteran participated in a group PTSD Coping Skills Program.  

In a November 2008 VA mental health treatment note, the Veteran complained of re-experiencing events, avoidance, and hyperarousal.  The Veteran reported that he was employed.  He lived with his ex-wife and children, and that his home life was good.  The mental health professional noted his participation in the group sessions and assigned a GAF score of 60.  

VA received the Veteran's increased rating claim on October 14, 2009.

The Veteran was afforded a VA PTSD compensation examination in February 2010 to evaluate the severity of his PTSD.  The Veteran reported feeling down, trying to avoid people, being very aware of his surroundings and who was around him, having thoughts of the past, feeling numb, sleep impairment, and having nightmares.  He also reported living with his wife and son, although having some conflict, and having regular interactions with family.  He added that he got laid off because he and his supervisor did not "see eye to eye," but that he was actively looking for employment.  The Veteran further reported that he had contact with his friends, who were sometimes invited to his home by his wife; however he would retreat to the basement or watch TV after spending some time with them.  There was no evidence of panic attacks, suicidal ideations or plans, impairment of thought processes or communication, or delusions and hallucinations.  In terms of social impairment, the examiner noted that the Veteran did not participate in social activities on a regular basis, but did attend school activities, such as games.  The examiner further noted that although the Veteran isolated himself, he had appropriate interactions with others, engaged in social and daily living activities, and was able to meet family responsibilities.  In terms of occupational impairment, the examiner noted the Veteran was unemployed, but indicated the Veteran was employable, was able to meet work demands, and that his PTSD symptoms did not affect his employment.  Furthermore, the examiner found that the Veteran's PTSD symptoms had a mild effect on his routine responsibilities, and a moderate effect on his relationships, quality of life, and leisure activities.

Based upon review of all evidence of record, both lay and medical, the Board finds that for the entire period on appeal, the Veteran's PTSD does not warrant a rating higher than 30 percent.  The Veteran's PTSD symptoms primarily include sleep impairment, avoidance, being very aware of his surroundings and who is around him (suspiciousness), and feeling down (depression), and those symptoms are consistent with the currently assigned 30 percent rating.

The criteria for a higher rating of 50 percent have not been met or more nearly approximated.   His affect has not been described as flattened per se, but the Veteran does describe himself as feeling numb.  His PTSD is also manifested by disturbances of mood and difficulty in establishing and maintaining effective work relationships.  However, there is no evidence of circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; and impaired abstract thinking.  The February 2010 VA examiner specifically indicated the absence of panic attacks, impairment of thought processes, and impairment of speech.  The examiner also indicated that panic attacks were not present.    

Socially, the Veteran attended school activities, such as games, and maintained contact with family and friends.  Although the Veteran reported that he retreated to the basement or watched TV after being around people, it was not shown to affect his interactions with others, or his daily or social activities.  Occupationally, the Veteran reported that he was unemployed, but actively looking for a job.  Furthermore, the February 2010 VA examiner indicated the Veteran's PTSD symptoms did not affect his employability and that he was able to meet work demands and responsibilities.  The Veteran's GAF score was 60, which is generally consistent with the currently assigned rating.   Overall, the preponderance of the evidence weighs against finding that the Veteran's PTSD is productive of symptoms resulting in occupational and social impairment with reduced reliability or productivity; rather it is shown to result in an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks.
For these reasons, the Board finds that the weight of the evidence is against the claim and a rating in excess of 30 percent for PTSD is not warranted.   

Finally, the Board notes that 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, 69-70 (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).

ORDER

Entitlement to a disability rating in excess of 30 percent for PTSD is denied.


____________________________________________
S. B. MAYS
 Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs