Citation Nr: 1817014 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 09-36 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased disability rating in excess of 50 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and generalized anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel INTRODUCTION The Veteran served in active duty in the U.S. Army from August 1967 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Regional Office (RO) in Milwaukee, Wisconsin. In a December 2005, the RO granted service connection for PTSD and assigned a 30 percent initial rating, effective June 7, 2005. The Veteran's Notice of Disagreement (NOD) was timely received in January 2006. In a subsequent decision in June 2006 during the appeal of the initial rating, the RO found clear and unmistakable error in the effective date and initial rating percentage assigned for PTSD; the effective date was corrected to March 24, 2005, and the initial rating was corrected to 50 percent. Simultaneously, in June 2006 the RO issued a Statement of the Case on the issue of the initial rating for PTSD. The Veteran did not enter a timely substantive appeal following the June 2006 Statement of the Case; consequently, the initial rating of 50 percent for PTSD and the effective date of March 24, 2005 for service connection for PTSD became a final decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). In May 2007, the Veteran submitted a claim for an increased rating, writing that PTSD symptoms had worsened over time. In November 2007, and again in April 2008, the RO denied a rating in excess of 50 percent for PTSD. In March 2009, the Veteran submitted a NOD to the denial of an increased rating for PTSD. A Statement of the Case (SOC) was issued in September 2009. A timely substantive appeal on the issue of an increased rating in excess of 50 percent for PTSD was received by VA in September 2009. In a June 2010 rating decision, the RO granted service connection for depressive disorder and generalized anxiety disorder, which are to be rated along with the service-connected PTSD under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130 (2015). As such, the issue of rating the service-connected psychiatric disorders is appropriately recharacterized above. The Board previously considered this appeal in February 2013, and remanded these issues for further development in order to clarify prior VA examination opinions and further develop the evidence of record. That development was completed, and the case returned to the Board for further appellate review. In a June 2016 Board decision, the Board denied the Veteran's claim for service connection for right ear hearing loss and denied the Veteran's claim for a rating in excess of 50 percent for PTSD, depressive disorder, and generalized anxiety disorder. The June 2016 Board decision also remanded the issue of entitlement to a total disability rating due to individual unemployability (TDIU) back to the RO for action. In an April 2017 decision, the Board denied TDIU. Thus, this issue is not currently before the Board for adjudication. The Veteran appealed the June 2016 decision's denial of an increased rating for PTSD to the United States Court of Appeals for Veterans Claims (Court). In September 2017, the Court grated a Joint Motion for Partial Remand (JMPR) to vacate and remand the part of the June 2016 Board decision that denied a claim of entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and generalized anxiety disorder. This appeal was returned to the Board for action consistent with the September 2017 JMPR. This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. The September 2017 JMPR also requests that the Board address whether a claim of service connection for tinnitus was reasonably raised by the record. The Board has examined the evidence of record regarding tinnitus. While the Veteran received a tinnitus diagnosis in a January 2009 VA examination, the Veteran has not properly filed a claim for tinnitus. As such, a rating decision by the RO addressing tinnitus has not been issued. The Board notes that the Brief for the Appellant mentioned that the Veteran addressed tinnitus in his January 2010 Decision Review Officer (DRO) hearing. However, there was no indication the Veteran requested filing a claim for tinnitus in the January 2010 DRO hearing transcript. As the issue of tinnitus is not properly before the VA, the Board recommends that the Veteran file a formal claim for tinnitus using a VA Form 21-526. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, during the entire period on appeal, the Veteran's acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and generalized anxiety disorder has been manifested by occupational and social impairment with deficiencies in most areas, but not manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating for service-connected PTSD, depressive order, and generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Psychiatric Disorders The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the service-connected acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and generalized anxiety disorder, on appeal has not materially changed and a uniform evaluation is warranted. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's PTSD with a history of mood disorder has been evaluated under Diagnostic Code 9411 as 50 percent disabling. 38 C.F.R. § 4.130 (2017). The General Rating Formula for psychiatric disabilities provides that 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. 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); and inability to establish and maintain effective relationships. A maximum 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; and memory loss for names of close relatives, own occupation, or own name. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists but rather 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). A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The rating agency shall 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. 38 C.F.R. § 4.126(a). VA will also consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because 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, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging from 51 to 60 reflect more 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). The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, 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 must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Included in the evidence of record during the period on appeal are VA psychiatry notes, weekly group therapy notes from the Vet Center, VA examinations dated November 2007, April 2010, and August 2013, letters from the Vet Center, and lay statements from the Veteran and his wife. With reasonable doubt resolved in favor of the Veteran, the Board finds that the Veteran's symptoms of PTSD are of such frequency, duration and severity that they equate to occupational and social impairment with deficiencies in most areas. As such, a 70 percent disability evaluation accounts for the Veteran's level of social and occupational impairment. The most probative evidence of record are three letters from the Vet Center dated November 2007, February 2010, and March 2013, where the Veteran regularly attends PTSD group therapy classes. In the November 2007 letter from the Vet Center, the examiner noted that the Veteran's symptoms were of a chronic nature; his decisions were sometimes questionable as he doesn't process things the way he should. In addition, the examiner indicated that he was in constant fear of losing his job because of his panic attacks and irritability. As the Veteran was not able to go into some buildings and some areas, he avoided certain jobs. In the February 2010 letter from the Vet Center, the examiner indicated that the Veteran struggled with chronic sleep disturbances, irritability, panic attacks and poor concentration that affect all three spheres of his life. His thought processes were grossly impaired. According to the examiner, the Veteran was on his way to being terminated and or seriously disciplined on his behavior and attitude. While his decision to get out of the work place affected his family income, it saved him from other possible serious consequences, as it was becoming more and more difficult for the Veteran to work with his supervisor and spend time with his co-workers, as he was feeling more closed in on the jobs that he was expected to do. The examiner indicated that the Veteran made the group sessions as often as possible when he was gainfully employed, and the group helped him to be able to maintain self and employment until his chronic symptoms began to close in on him. The examiner further noted that attending the group sessions were required to keep the Veteran a functional member of society. In the March 2013 letter from the Vet Center, the examiner noted that the Veteran continued to struggle with symptoms of panic attacks, intrusive thoughts, and irritability and sleep disturbances. The Vet Center continued to see his symptoms as being of a chronic nature; he is not able to maintain gainful employment; his thought processes are grossly impaired; and his panic attacks are daily. While the Board finds that the Veteran's symptoms of PTSD have more nearly approximated symptoms productive of occupational and social impairment with deficiencies in most areas, total and occupational social impairment has not been shown. Although the Veteran's PTSD causes significant occupational and social impairment, he continues to maintain a relationship with his daughter and wife. In addition, he attends group therapy where he socializes with other veterans and also enjoys playing golf. Moreover, he has not demonstrated symptoms of such severity, frequency or duration as to equate with total social impairment for the reasons stated above. Further, with regard to the listed symptoms for a total rating, the Veteran has not shown 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. For these reasons, the Board finds that the evidence supports a finding of a 70 percent evaluation for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and generalized anxiety disorder, but no higher for the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased disability rating of 70 percent, but no higher, for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and generalized anxiety disorder is granted for the entire period on appeal, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs