Citation Nr: 1815196 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-08 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) for the period from January 26, 2011 to March 29, 2017. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1962 to March 1971 and from April 1973 to February 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Oakland, California. That rating decision granted service connection for PTSD with secondary depression and assigned a 50-percent rating effective January 26, 2011. As explained in the September 2015 Board decision, in September 2011, the Veteran filed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability (TDIU claim), which was construed as an initial rating claim. After further development, in a decision mailed in May 2013, the RO granted 70 percent disability rating for PTSD with secondary depression effective January 26, 2011. A Supplemental Statement of the Case issued in February 2015 continued the 70 percent rating for PTSD with secondary depression. In February 2015, the Veteran's representative stated the "Veteran was still requesting service connection for depression related to PTSD from the date of the original claim, October 31, 2007." See Correspondence and Third Party Correspondence received on February 17, 2015. In a March 2015 memorandum, the VA sent the Veteran's representative a request to file a VA Form 646 and erroneously identified the issue on appeal as "Earlier effective date for service connection with PTSD with an evaluation of 70% from January 26, 2011." See Correspondence received March 11, 2015. In September 2015, the Board issued a decision identifying the correct issue on appeal as "entitlement to an initial evaluation in excess of 70 percent for PTSD with secondary depression." and remanded this matter for further development. On remand the Veteran was given a new VA examination and the RO issued a supplemental statement of the case, which adjudicated the claim on the merits. The Board is satisfied that there has been substantial compliance with its remand directives. Dyment v. West, 13 Vet. App. 141, 146-157 (1999). Therefore, the Board will proceed in considering this claim on the merits. To the extent the Veteran is seeking an earlier effective date for grant of service connection for PTSD with secondary depression, the Veteran and his representative are advised that if she desires to raise a new claim of entitlement to an earlier effective date, a claim for benefits must be submitted on a VA standardized form. See 38 C.F.R. § 3.1(p), 3.155, 3.160 (2017). FINDING OF FACT The Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood; however, total occupational and social impairment has not been shown for the period from January 26, 2011 to March 29, 2017. CONCLUSION OF LAW The criteria for a rating in excess of a 70-percent rating for PTSD have not been met for the period from January 26, 2011 to March 29, 2017. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist The Veteran's Claims Assistance Act describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board finds that the VA's duty to notify has been satisfied. The Board notes that in the February 2011, August 2011 and July 2012 letters, the VA notified the Veteran of the evidence necessary to substantiate his claims, informed him of the steps VA, and requested the Veteran to provide any additional information. Regarding the Veteran's claim for an initial increased rating for PTSD with secondary depression, VA has satisfied its duty to notify because an appeal for an initial increased rating following a grant of service connection requires no additional VCAA notice with respect to the downstream issue of the initial rating assigned to the now service-connected disability. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006). The duty to assist has also been met in this case. The service treatment records, VA treatment records and lay statements submitted by the Veteran and his representative have been associated with the file. The Veteran has not stated, and the record does not indicate that there are any outstanding relevant treatment records regarding the Veteran's claim at issue. Finally, the Veteran was provided three VA examinations in March 2011, July 2012, and March 2017 to assess the severity and manifestations of his service-connected PTSD with secondary depression. The examiners noted a review of the claims file, documented the Veteran's reported subjective symptoms, and performed a physical examination. The Board finds the examinations are adequate because the examiners were apprised of the Veteran's medical history, conducted an appropriate evaluation, and rendered diagnoses consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 4.2 (2017). II. Increased Rating for PTSD The Veteran contends that his service-connected PTSD with secondary depression is more severe than accounted for in his current disability rating of 70 percent for the period from January 26, 2011 to March 29, 2017. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995); 38 C.F.R. § 4.1. Under the general rating formula, a 70-percent evaluation is warranted for 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 situations (including work or a work like setting); and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400, General Rating Formula for Mental Disorders. A total schedular rating of 100 percent is warranted when the disorder results 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under Section 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." The Federal Circuit further noted that Section 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-Claudio v. Shinseki, 713 F.3d 117. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the psychological, social and occupational is functioning on a hypothetical continuum of mental health and illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). However, the rating schedule does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2017). GAF scores are but one factor to be considered in conjunction with all the other evidence of record. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV). The amendments replace those references with references to the recently published Fifth Edition (DSM-5). See 80 Fed. Reg. 53, 14308 (March 19, 2015). This claim is governed by the DSM-IV. GAF scores ranging from 41 to 50 are assigned when 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). GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61-70 reflects 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, and has some meaningful interpersonal relationships. See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995); Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the updated Fifth Edition (DSM-5). A GAF score need not be accepted as probative if it is determined that the score does not reflect the overall psychiatric disability picture at the time of the examination. Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The probative value of the GAF scores will be considered in light of the other evidence of record. As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998). Factual Background In October 2007, the Veteran filed a claim for service connection PTSD (as discussed above the claim was initially denied in an April 2008 rating decision but was subsequently granted in an August 2011 rating decision, which assigned a 50-percent rating effective January 26, 2011). Thus, the period on appeal dates from January 26, 2011 to March 29, 2017. VA treatment notes reflect the Veteran was initially assessed for a psychiatric condition in February 2008, when he reported trouble sleeping due to flash backs from Vietnam. See VA Treatment Record, Palo Alto Mental Health Clinic (MHC) from February 2008. He was assessed with adjustment disorder and depression and assigned a GAF score of 52. The Veteran was subsequently diagnosed with PTSD in April 2008. The VA treatment provider noted the Veteran had moderate symptoms of PTSD and depression. See VA Mental Health Note, Palo Alto MHC, from April 2008. He was prescribed Sertraline and Quetiapine. In an October 2009, MHC treatment note the Veteran reported that his PTSD symptoms were interfering with his college courses. He specifically noted that "he forgets many things and has difficulty concentrating." In a letter dated October 26, 2009, a VA psychologist opined that the Veteran has chronic to severe PTSD primarily due to four traumatic experiences during his active service in Vietnam. See VA Treatment Record, received on January 31, 2011. The examiner stated that the Veteran experienced chronic psychological symptoms due to PTSD including "intrusive memories and thoughts, nightmares, intense distress, and physical reactivity to internal/external cues, insomnia, irritability, and outbursts of anger, problems concentrating, hypervigilance, exaggerated startle response, avoidance of triggering stimuli...." Id. The VA psychologist also opined that the Veteran's PTSD "significantly impacts his social, emotional, and occupational and relationship functioning" and assigned the Veteran a GAF score of 54. In June 2010 Veteran also stated he had difficulty with online school due to poor concentration. See VA Palo Alto FOC, Mental health Treatment Note from June 2010. On Mental status examination, the Veteran exhibited mild elated/labile mood, poor concentration, and no thought disorder. During a psychiatric appointment, in July 2010, the Veteran reported that his psychiatric medications have improved some of his symptoms. See VA Palo Alto FOC, Mental Health Treatment Note from October 2010. He was diagnosed with PTSD and assigned a GAF score of 50. In March 2011, the Veteran was afforded a VA examination. See Compensation and Pension (C&P) Examination report for Initial Evaluation for PTSD. The VA examiner noted the Veteran was a combat engineer, and "was exposed to a significant amount of combat." Id. The examiner noted the Veteran was self-medicating with alcohol, and that the Veteran experienced problems with anger, irritability, poor sleep, and nightmares along with other symptoms due to PTSD. The Veteran also reported trouble getting along with others and punching things when he was frustrated. The Veteran complained of trouble with his memory and concentration, as well as focusing his attention. He also endorsed nightmares, sleep disturbance, flashbacks, and difficulty with anger and irritability. Id. On mental status examination, the Veteran was neat and casually dressed. His mood and affect were sad and depressed. He was oriented in three spheres, and alert. His attention and concentration were noted to be intact. Id. The examiner diagnosed the Veteran with PTSD and secondary depression, and secondary alcohol abuse as a form of self-medication. The examiner also opined that the Veteran's "symptoms of PTSD have interfered with his ability to function effectively at work and his interpersonal relationships. He has difficulty focusing his attention.... The Veteran has experienced significant occupational and social impairment due to his symptoms of [PTSD]." Id. In a March 2011 follow up visit with the clinic psychiatrist, the Veteran sought to refill his psychotropic medications and reported the medications were not as effective as before. See March 2011, VA Palo Alto Mental health Treatment Note in CAPRI received on October 16, 2015. In October 2011, the Veteran's former employer reported that the Veteran was terminated from his prior job in January 2008 due to "anger control problems." See VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. In July 2012, the Veteran was afforded a VA examination to assess the severity of his PTSD. See C&P Examination, Review PTSD, Disability Benefits Questionnaire (DBQ) report. The examiner noted the Veteran was appropriately dressed and groomed and was cooperative during interview. The VA examiner diagnosed the Veteran with PTSD and Bipolar Disorder, based on his VA treatment record. The examiner also assigned the Veteran a GAF score of 48. The examiner stated that "based on the Veteran report that his irritability increased significantly after his time in Vietnam and his intense anger is associated with PTSD. Veteran's depression appears primarily associated with PTSD." Id. The examiner also noted that following symptoms were associated with the Veteran's diagnoses: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control such as unprovoked irritability with periods of violence. The examiner opined that the Veteran's occupation and social impairment results in "deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood." Id. The Veteran's wife reported the Veteran's cognitive decline was getting worse in areas of executive functioning with poor concentration. See VA Palo Alto Mental Health Note, from August 2012 in CAPRI received on October 16, 2015. On mental status examination, the Veteran had severely depressed in mood and affect, was alert and oriented, displayed poor concentration, and was mildly demented. Id. From October 2012 through September 2015, the Veteran received mental health treatment at a VA MHC in Palo Alto primarily four times a year for medication management. These treatment notes indicate the Veteran was alert and oriented, he denied homicidal or suicidal ideations and hallucinations or delusions, he exhibited normal hygiene, was compliant with medications. See VA Palo Alto Mental Health Treatment notes, in CAPRI received on October 16, 2015. Additionally, the VA treating providers noted the Veteran's PTSD was stable. In March 2016, VA mental health treatment note, the Veteran's PTSD was noted as stable. He was assigned a GAF score of 55. See Palo Alto Mental Health Note from March 2016, in CAPRI received on March 15, 2017. On mental status examination, the Veteran was alert and oriented, had normal hygiene and dress, displayed appropriate affect and good mood, and denied homicidal/suicidal ideations, hallucinations, and delusions. The Veteran further declined therapy and medication changes. Id. In June 2016, the Veteran reported "medications are working great." See Palo Alto Mental Health Note from June 2016, in CAPRI received on March 15, 2017. The Veteran had normal hygiene and dress, was alert and oriented, and denied any denied homicidal/suicidal ideations, hallucinations, and delusions. Id. He also declined therapy and medication changes. Id. In an undated letter submitted in August 2016, the Veteran's wife reported that due to the Veteran's PTSD with secondary depression, the Veteran forgets names of close relatives, has neglected his hygiene, exhibits "unpredictable distraught behavior" as well as an inability to control anger. See Correspondence received on August 2, 2016. The Veteran's mental health treatment notes from November 2016 and February 2017 were similar to his previous mental health treatments. The Veteran reported medications were effective in treating his symptoms and has relatively normal mental status examinations. See Palo Alto Mental Health Note from November 2016 and February 2017, in CAPRI received on March 15, 2017. In March 2017, the Veteran was afforded a third VA examination pursuant to the Board remand in September 2015. See C&P Mental Health Examination report, Review PTSD, DBQ. The VA examiner diagnosed the Veteran with PTSD and persistent depressive disorder. The VA examiner noted that these diagnoses "are essentially identical to the diagnosis of PTSD with secondary depression, but is expressed in the diagnostic nomenclature of [DSM-5]." Id. The VA examiner noted that PTSD symptoms included "intrusive experiences related to the original trauma, avoidance, negative changes in thoughts and mood associated with trauma, and marked changes in arousal and reactivity." The VA examiner attributed symptoms of "depressed mood for most of day, poor appetite, insomnia, fatigue, poor concentration, and suicide ideation" to the Veteran's persistent depressive disorder. The Veteran and his wife reported the Veteran is more irritable and gets angry more easily. They also reported the Veteran has reduced contact with his adult children, does not have friends, and spends most of his time on his computer. Both reported that the Veteran "does raise his voice and occasionally hits his computer when angry." On mental status examination, the Veteran appeared casually dressed and unshaven. He was oriented to person, place, and time. He completed six serial 7 subtractions with 4 errors and exhibited very poor fund of knowledge. He also presented with constricted affect, and endorsed thoughts that he was being watched or followed. The Veteran endorsed regular suicide ideations with no plan. He reported decreased appetitive, weight loss of 40 pounds, decreased energy, and feeling hopeless and worthless due to depression. He further reported frequent anxiety and worrying. The Veteran and his wife also reported "decreased interest in hygiene" and needing encouragement from his wife. The examiner attributed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment and abstract thinking, difficulty in adapting to stressful circumstances, suicide ideation, neglect of personal appearance, impaired impulse control among others to the Veteran's service connected PTSD with secondary depression. Id. The examiner opined that the Veteran's psychiatric diagnosis resulted in total occupational and social impairment. In a May 2017 Supplemental Statement of the Case, the Veteran was assigned a 100-percent rating for his service-connected PTSD with secondary depression effective March 29, 2017. Analysis After reviewing all the evidence, the Board finds that the overall social and occupational impairment caused by the Veteran's PTSD with secondary depression most nearly approximates impairment warranting a 70-percent rating, for the period from January 26, 2011 to March 29, 2017. See 38 C.F.R. § 4.130, DC 9400. Specifically, the Veteran has not established the following symptoms, associated with a 100-percent rating: gross impairment in thought processes; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living; disorientation to time or place; memory loss of names of close relatives, current or former occupation, or own name. Id. Notably, the Board is mindful of the Court's holding in Vazquez-Claudio which explained that analysis of psychiatric disorders is "symptom driven," and 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. 713 F.3d at 118. As to be explained, the Veteran has not endorsed symptoms such as those noted. The Veteran has not demonstrated any symptomology of comparable severity to the listed symptoms considered by a 100- percent rating because he has denied any of the listed symptoms. See Mauerhan, 16 Vet App. 442; Vasquez-Claudio, 713 F. 3d 116-117. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran's overall level of social and occupational impairment due to his mental health condition more nearly approximates the level contemplated by a 100 percent rating. For instance, none of the VA examiners found that the Veteran had abnormal speech and thought processes, whereas to be consistent with a 100-percent rating, it would require gross impairment in communication and thought processes. Moreover, the Veteran denied persistent hallucinations and homicidal or suicidal ideations during his VA examinations in March 2011 and July 2012 and at his VA psychiatric appointments, whereas to be consistent with a 100-percent rating it would require persistent hallucinations and persistent danger of hurting one self and others. Notably, there are indications within the record that the Veteran hits his computer at times, but it is not described as persistent. Additionally, there is no evidence of psychosis; indeed, the record shows that the Veteran has been oriented to time and place consistently throughout the record. Furthermore, while GAF scores are no longer used, the Veteran's GAF scores which was relevant at that time ranged from 48 to 55, and represents serious to moderate symptoms. See DSM-IV. Further, all potentially applicable codes have been considered and there is no basis to assign an evaluation in excess of the currently assigned rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Moreover, the Veteran's symptoms have been consistent throughout the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (finding that at the time of an initial rating "separate ratings can be assigned for separate periods of time based on facts found", a practice known as "staged" rating). Here, however, the evidence warrants a uniform 70-percent rating. Finally, the Board has considered the Veteran's lay statements concerning the symptoms of the service-connected disability and his medical history. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. However, laypersons do not have the competence to render an opinion as to the level of severity of a psychiatric disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The VA examination findings and VA treatment notes are competent and credible evidence concerning the nature and extent of the Veteran's psychiatric disability. The medical professionals examined the Veteran, and the examiners rendered pertinent opinions in conjunction with the evaluations. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords their opinions great probative value. Therefore, the Board finds that the preponderance of the evidence is against a finding that the rating in excess of 70 percent for the period from January 26, 2011 to March 29, 2017 is warranted. As the preponderance of the evidence is against the claim for an increase, the benefit of the doubt doctrine is inapplicable and the claim must be denied. ORDER Entitlement to an initial disability rating in excess of 70 percent for PTSD with secondary depression for the period from January 26, 2011 to March 29, 2017 is denied. (CONTINUED ON NEXT PAGE) ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs