Citation Nr: 1820463 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 13-17 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the Army from April 2003 to June 2004, with prior periods of active duty for training and inactive duty for training in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 and April 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska that denied the Veteran's claim for an increased rating. In March 2014, the Veteran testified before a Veterans Law Judge at a Travel Board hearing at the RO in Lincoln, Nebraska. A transcript of the proceeding has been associated with the claims file. Subsequently, the Board notified the Veteran that the VLJ who conducted the hearing was no longer employed by the Board, and offered the Veteran an opportunity for a new Board hearing. See 38 C.F.R. § 20.707 (2017). In March 2017, the Veteran replied that he did not wish to attend a new Board hearing and that he desired that the Board make a decision based on the evidence of record. In June 2016, the Board remanded the claim for further development. Such development has been completed and associated with the claims file, and this matter is now returned to the Board for further appellate review. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity, due to symptoms such as irritability (without periods of violence), anxiety, chronic sleep impairment, short-term memory impairment, and disturbances of motivation and mood. CONCLUSION OF LAW The criteria for a 30 percent evaluation for PTSD are met, but no more. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). The Board finds that a September 2011 notice letter fully satisfied VA's duty to notify the Veteran. See 38 U.S.C.A. § 5103(a). The Board also finds that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's VA treatment records and private treatment records are all in the claims file. The Veteran has not identified any outstanding records for VA to obtain. In June 2016, the Board remanded the claim so that the Veteran's more recent VA treatment records could be obtained, and so that the Veteran could be afforded a new VA examination. Subsequently, his more recent VA treatment records were associated with the claims file, and the Veteran was afforded a new June 2016 VA examination, with a September 2016 addendum, which examiner answered all the questions posed by the Board. Therefore, the Board finds that there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that it directed the VA examiner to review the May 2014 DBQ prepared by M.P., and to note that it was reviewed. Pursuant to the Board's remand directive, the June 2016 VA examiner noted in the VA examination report that the May 2014 private DBQ had been reviewed, and discussed it in detail (and noted such again in the September 2016 addendum). The Board acknowledges that after the June 2016 VA examination was performed, a May 2014 treatment record by Dr. M.P. was associated with the claims file. The Board finds, however, that this does not serve to obviate the symptoms found on examination by the June 2016 VA examiner. The Board has taken both the June 2016 VA examiner's findings (and September 2016 addendum), as well as the May 2014 treatment record and DBQ by Dr. M.P. all into due consideration in rendering this decision herein. The Board adds that the May 2014 Dr. M.P. treatment record predates the June 2016 VA examination, and there is no indication that the Veteran's symptoms have increased since the last June 2016 VA examination. Therefore, the Board finds that a remand for a new VA examination is not required. The Veteran has not identified any shortcomings in fulfilling VA's duty to notify and assist. Therefore, for the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Analysis The Veteran served on active duty in the Army from April 2003 to June 2004, with prior periods of active duty for training and inactive duty for training in the Army National Guard. He served in Iraq and was awarded the Combat Action Badge. He claims entitlement to an evaluation in excess of 10 percent for his service-connected PTSD. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b) (2012). Where service connection has already been established and an increase in the disability rating is in issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability in issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected PTSD is evaluated under Diagnostic Code 9411. The regulations establish a general rating formula for mental disabilities. 38 C.F.R. § 4.130 (2017). Ratings are assigned according to the manifestation of particular symptoms. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA will consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM IV or V). The criteria for a 10 percent rating are as follows: 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. The criteria for a 30 percent rating are as follows: 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). The criteria for a 50 percent rating are as follows: 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Within the DSM-IV, Global Assessment 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). A GAF score is, of course, just one part of the medical evidence to be considered and is not dispositive. The same is true of any clinician's statement as to the severity of a disability. It remains the Board's responsibility to evaluate the probative value of any clinician's opinion in light of all the evidence of record. GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or coworkers). GAF scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech 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., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasional failure to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. 38 C.F.R. § 4.130 (incorporating by reference VA's adoption of the DSM-IV for rating purposes). The Board notes, however, that the DSM-V no longer utilizes GAF scores. The DSM-V is applicable for cases certified to the Board on or after August 4, 2014. In this case, the appeal was certified in March 2014. Therefore, the DSM-IV applies. However, in Golden v. Shulkin, 2017 U.S. Vet. App. Claims LEXIS 1018 (July 18,2017), the U.S. Court of Appeals for Veterans Claims (Court) noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with mental disorders, the DSM-5 eliminated GAF scores because of their "conceptual lack of clarity" and "questionable psychometrics in routine practice." DSM-5 at 16. The Court further commented, "Although it is true that examiners no longer use these scores, an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. Any reliance on evidence that expert consensus-as adopted by VA-has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases." Therefore, the Board will discuss the scores in the context of examinations governed by DSM-IV but will recognize the later expert evaluation of the shortcomings in the scores and apply appropriate weight. The Veteran was afforded VA examinations in November 2011 and June 2016 (with a September 2016 addendum). The Board also acknowledges the Veteran submitted an April 2013 DBQ prepared by MS. E.S. (L.C.S.W.) from the VA medical center, and a private May 2014 evaluation report and May 2014 DBQ report by Dr. M.P. The Veteran submitted a lengthy statement in November 2010 describing traumatic events in Iraq, frustration with his military leaders, irritability with his family, and tendency to take risks in his work as a fire fighter, although he noted that he was at ease in stressful fire or motor vehicle accidents. His spouse submitted a lengthy letter describing changes in his behavior interacting with family and with others with episodes of irritability, social isolation, and apathy regarding activities that he formerly enjoyed. The Veteran underwent a VA mental health examination in November 2010 by a VA staff psychiatrist. The examiner acknowledged the Veteran's combat experiences and his spouse's statement regarding observed changes in his behavior after the overseas deployment. The Veteran reported some intrusive thoughts, adverse reaction to fireworks, irritability, some amnesia of combat events, nightmares but none in the past few months, and less socializing than prior to deployment. On the other hand, he had intact family relationships and was a Captain in the volunteer fire department and a full time employee for a utility company. The psychiatrist diagnosed PTSD but found that the disorder imposed transient or mild decreases in work efficiency during periods of stress and somewhat less socialization and assigned a GAF score of 62. The November 2011 VA examination report shows the examiner diagnosed PTSD and assigned a GAF score of 58, suggesting moderate social and occupational impairment. See Report at p.39. However, the examiner also opined that the Veteran's overall social and occupational impairment due to his PTSD was best summarized as: 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. The examiner acknowledged the Veteran's history of combat in service. The examiner noted a review of the recent VA treatment records showed that in November 2011, he reported improvement in his irritability at work since taking Topiramate, that his wife noticed positive changes, and that he had reported he was in good spirits, but did report "very mild" problems with his short-term memory due to his medication, and a GAF score of 58 was shown. See VA treatment records, received November 2011 at p.2 of 13. The examiner noted the Veteran reported he had been married to his wife since 1988 (approx. 23 years), that the marriage was going well, he had two children, the youngest was living with him, that he had contact with extended family, he is involved with church activities, and was involved in social activities with firefighters. It was noted that the Veteran was a volunteer firefighter, and that he was employed as a utility service technician at the same company for 17 years. He reported he enjoyed going deer hunting with his boys. He reported experiencing irritability when completing his VA paperwork and throwing the printer, and that he felt depressed when he received a denial letter from VA, and that after the printer incident is when he sought treatment at the VA medical center. He reported some improvement with his anger symptoms with the medication. The Veteran described his mood as apprehensive and nervous, he reported difficulty sleeping in April (an anniversary date), and in July due to fireworks. His memory for remote, recent, and immediate events was noted as intact. When asked what he did on the previous day, he stated that he spent two hours chipping away concrete to get a furnace under a house. When asked about his PTSD symptoms, the Veteran reported that during waking hours, if he is not busy doing something, he has trouble with flashbacks and thoughts about his military experience. He reported irritability and a "short fuse." During the March 2014 Board hearing, the Veteran contended that the examination reports by social worker E.S. best represented the level of severity of his PTSD. He and his spouse testified regarding his irritability, reaction to fireworks, decreased socialization, mild memory shortcomings, and other manifestations as they had reported in their statements. A May 2014 DBQ by Dr. M.P., a private psychologist (PsyD), submitted by the Veteran shows Dr. M.P. opined that the Veteran's overall level of social and occupational impairment due to his PTSD was best summarized as: occupational and social impairment with reduced reliability and productivity. A GAF score of 55 was noted. Dr. M.P. noted the Veteran's relevant social history included ongoing disruption to personal and family relationships, including significant withdrawal, interpersonal conflict, isolation, pronounced difficulty with recalling personal information and reluctance to form/maintain interpersonal relationships. Regarding his occupational history, Dr. M.P. noted the Veteran had difficulty interacting with coworkers, difficulty with understanding complex commands, expressed concern regarding excessive willingness to take chances with duties, and increased personal isolation at work. Dr. M.P. noted the Veteran was taking Topiramate to control anger issues. Dr. M.P. noted that the Veteran's PTSD symptoms include: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), memory loss for names of close relatives, own occupation, or own name, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or in a worklike setting, inability to establish and maintain effective relationships, The June 2016 VA examination report shows the examiner noted a diagnosis of PTSD, and opined that the Veteran's overall level of social and occupational impairment was best summarized as: 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. The Veteran reported he was married to his wife for 27 years, that they have a "great, very good" relationship, that he has "very good" relationships with his two sons, his current hobbies included kayaking, going to his cabin, relaxing on the lake, deer and turkey hunting, and firefighting. He reported his current social support included his wife, his sons, fellow firefighters, and a couple of good friends. He reported he was a volunteer firefighter since 1995, and that he worked as a service technician for Black Hills energy since 1993 (23 years). He reported his work was "okay" except that his coworkers were frustrated with the new owners of the company not taking safety concerns seriously. His treatment history was noted as involving seeing Ms. E.S. (L.C.S.W.) for individual therapy from October 2011 to April 2013, and two medication management sessions with a physicians assistant in 2012, and that presently his primary care nurse practitioner had prescribed Topamax for mood stabilization. He reported that the medication keeps him "on even keel." He reported trouble sleeping "once in a while." The Veteran described his mood as anxious, and his affect as irritable. The examiner noted that the Veteran had not met with any mental health treatment staff since 2013. The examiner also noted that the Veteran continued to be prescribed Topiramate by his VA primary care, and noted again that he reported that "it keeps me on even keel." Regarding the May 2014 DBQ prepared by Dr. M.P., the VA examiner noted that during the VA examination, none of the symptoms noted by Dr. M.P. were present or reported at a clinically significant level, and the examiner noted "it is my clinical opinion after evaluating and observing the Veteran during today's session that the above symptoms [on the May 2014 DBQ by Dr. M.P.] were a gross overstatement of the Veteran's mental health concerns. Further, the vast majority of the symptoms marked (particularly the severe ones) had no explanation as to why there were selected so it is impossible to ascertain what exactly resulted in their selection. Dr. P. provided very little detail in the recent history section and provided no comments in the remarks section making it difficult to understand how determined his selection of symptoms and level of impairment. Notably, the Veteran appears to be functioning well overall, has not met with a mental health practitioner for treatment since 2013, reported minimal mental health concerns, and reported a good response to his psychotropic medication. Further, he has had the same job since 1993, reported good relationships with his wife, children and friends, and that he is engaging in activities that he enjoys. For someone to be exhibiting all of the symptoms Dr. P. selected they would likely require significant mental health intervention, would not likely be able to hold a job for 23 years or maintain relationships, . . . and appears to be able to function independently fairly well." The June 2016 VA examiner also noted that he had reviewed an April 2013 DBQ prepared by Ms. E.S. (L.C.S.W.) of the VA medical center (addressed below), and noted that there is no indication that Ms. E.S. was "under the close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist" at the time she completed the report, such that she was ineligible to complete it. The Board acknowledges that the Veteran submitted an April 2013 DBQ prepared by his treating licensed clinical social worker at the VA medical center, Ms. E.S. The Board acknowledges that, as pointed out by the June 2016 VA examiner, Ms. E.S. is not shown to have prepared the DBQ as a licensed clinical social worker "under close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist" as required as per the form instructions and the M21-1. See M21-1, III.iv.3.D.2.i. Thus, the April 2013 DBQ has somewhat probative value although she reportedly provided treatment over an extended period of time. However, the DBQ report is very brief and mentions irritability and issues of emotional connection with his spouse. Regarding occupational impairment, the social worked noted only that the Veteran worked in a solitary job that required less intensity but did not mention his work as a fire fighter. The Board also acknowledges that the VA treatment records in the claims file include an April 2013 VA PTSD clinic outpatient treatment note prepared by Ms. E.S. that shows Ms. E.S. noted symptoms similar to those noted in her April 2013 DBQ. Specifically, an April 2013 shows Ms. E.S. noted the Veteran was experiencing PTSD symptoms including, but certainly not limited to, difficulty in understanding complex commands, memory loss for names of close relatives, own occupation, or own name, and near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. The Board finds, as did the June 2016 VA examiner, that these symptoms are significantly divergent from symptoms noted by all the other clinicians in the claims file. The Board simply finds it to warrant less weight, based on all of the other medical evidence of record, that the Veteran was unable to understand complex commands, remember names of close relatives, his own occupation, or his own name, or experienced near-continuous panic or depression that affects his ability to function independently, appropriately, and effectively. The Board adds that this particular treatment record effectively regurgitated several of the rating criteria without any underlying history or narrative being provided. The Board has carefully reviewed all of the Veteran's other VA treatment records and statements in support of his claim. The Board acknowledges that a November 2011 VA treatment record shows the Veteran reported "very mild" problems with his short-term memory due to his Topiramate medication. See CAPRI, received November 2011 at p.3 and 12 of 13. A March 2013 VA treatment record shows the Veteran reported frustration due to short term memory problems such as not remembering why we started talking about polytrauma, or the name of a therapist with whom he met. See VA treatment records, received March 2013 at p.6. The Board also acknowledges that the Veteran's GAF scores have consistently been between 54 and 58. The Board also acknowledges that in a December 2012 statement, the Veteran's wife reported that the Veteran was essentially irritable, reclusive and avoids public outings unless initiated by his wife, and has infrequent contact with friends and family (such as once per month with his father who lives 20 minutes away). She did, however, report that she believed his medication was helping his symptoms. She reported that he lacked optimism with his job, and is content to spend his time watching TV with no hobbies or interests. She described him as "apathetic." Having carefully considered all of the most probative evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran's overall disability picture due to his PTSD symptoms more nearly approximates the criteria for a 30 percent rating, but not higher. As shown above, throughout the period on appeal, the Veteran himself has reported irritability (without violence except breaking a printer), anxious mood, sleep impairment, and short-term memory impairment. His wife reports disturbances in motivation and irritability that apparently are not completely controlled with medication, but albeit improved. By contrast, the presently assigned 10 percent rating contemplates, for example, symptoms controlled with continuous medication. Also, his GAF scores have consistently been between 54 and 58, which generally contemplate moderate symptoms, which is consistent with a 30 percent rating. The Board further finds that the Veteran's PTSD symptoms do not approximate a level of severity contemplated by the next higher 50 percent rating criteria. While the Veteran's reported short-term memory problems, and his wife's report of his disturbances in motivation, are types of symptoms contemplated by the 50 percent rating criteria, the Board finds that the Veteran's overall disability picture most nearly approximates the 30 percent rating criteria, as the Veteran is not credibly shown to have any other symptoms of a level of severity contemplated by the 50 percent rating criteria, and as he is not even shown to have many symptoms of a level of severity contemplated by the 30 percent rating criteria. In fact, at the Board hearing, the Veteran denied feeling depressed, and did not report panic attacks. For the reasons explained above, the Board finds that the April 2013 DBQ and underlying treatment record by Ms. E.S., and the May 2014 DBQ prepared by Dr. M.P., showing symptoms greatly divergent from all of the rest of the evidence of record, to simply have less probative value. In this case, the Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board") (quoting Dingess v. Nicholson, 19 Vet.App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). In summary, the Board concludes that entitlement to a 30 percent rating for PTSD for the entire period on appeal is warranted, and entitlement to a higher rating is not warranted; the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to a 30 percent evaluation, but not higher, for PTSD is granted. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs