Citation Nr: 1820530 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 12-08 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD) rated 30 percent disabling prior to April 20, 2017, and 70 percent disabling thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United Marine Corps from November 1998 to April 2009, with combat service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned an initial rating of 30 percent, effective October 18, 2010. In a June 2017 rating decision, the rating was increased to 70 percent, effective April 20, 2017. As the Veteran has not indicated satisfaction with that determination, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran testified during a Board hearing before the undersigned Veterans Law Judge in November 2015. The appeal was remanded for further development in April 2016. To the extent the February 2018 Appellant Brief references an increased initial rating for the Veteran's cervical spine disability, for which service connection was awarded in the June 2017 rating decision, the Board emphasizes there is no Notice of Disagreement (NOD) with that determination of record. The Veteran is encouraged to complete the requisite NOD form (VA Form 21-0958) with his representative within the one year appeal period, should he wish to pursue that claim. 79 Fed. Reg. 57660 (Sept. 25, 2014). FINDING OF FACT For the entire appeal period, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. From October 18, 2010 to April 20, 2017, the criteria for a 70 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for a rating in excess of 70 percent for PTSD are not met at any point during the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.125, 4.126, 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veteran's Contentions The Veteran maintains that a higher rating is warranted for his PTSD based on his symptomology stemming from events that occurred during his combat service in Southwest Asia during the Persian Gulf War. To this end, the Veteran asserts that his PTSD has progressively worsened and causes excessive feelings of apprehension and hypervigilance, persistent irrational fear of driving under bridges and avoiding driving in heavy traffic, avoidance of closed in environments, severe panic attacks that occur at least three times a week, recurrent obsessions and compulsions that caused marked distress, recurrent intrusive memories, short term memory loss, inability to form and maintain personal relationships, anxiety, social isolation, irritability, chronic sleep impairment, lightheadedness, dizziness, dry mouth, nightmares, constant alertness, depressed mood, temper problems, and concentration problems. See October 2011 Notice of Disagreement (NOD) and November 2015 Board Hearing Transcript at 9. II. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two 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. See 38 C.F.R. § 4.7. Additionally, while it is not expected that all cases will show all the findings specified, 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. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Fenderson, 12 Vet. App. 119. In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to the DSM. See 38 C.F.R. § 4.125(a). Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Fourth Edition of the DSM (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Because the RO first certified the Veteran's appeal to the Board in May 2014, this claim is governed by the DSM-IV. Under the DSM-IV, diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is 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). According to the DSM-IV, a GAF of 51 to 60 indicates 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). A GAF of 61 to 70 is indicative of 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, has some meaningful interpersonal relationships. III. Rating Criteria The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 30 percent rating is warranted where the disorder is manifested by 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). A 50 percent rating is warranted where the disorder is manifested by 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. A 70 percent rating is warranted where the disorder is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where the disorder is manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130; DC 9411. IV. Analysis The Veteran is currently assigned a 30 percent rating prior to April 20, 2017, and a 70 percent rating thereafter for his service-connected PTSD. The appeal period is from October 18, 2010, the date of the award of service connection for his PTSD. During the course of the appeal, the Veteran has reported depressed mood and nightmares for which he has continuously been prescribed medication. See November 2012 through October 2013 and October 2014 through March 2016 VA treatment records. He was afforded a VA PTSD examination in March 2011. During the examination, the Veteran reported depressed mood, decreased energy, and loss of interest in pleasurable activities. The Veteran denied manic symptoms, distractibility, high energy, decreased need for sleep, impulsivity, grandiosity, flight of ideas, goal directed activities, rapid speech, and racing thoughts. Upon examination, the VA examiner noted that: the Veteran was clean, neatly groomed, appropriately and casually dressed; psychomotor activity was unremarkable; speech was spontaneous; attitude was cooperative, friendly, relaxed, and attentive; affect was constricted; mood was depressed; attention intact; orientation to person, time, and place was intact; thought processes were unremarkable; judgment was good; intelligence was average; insight was good; impulse control was fair; and remote, recent, and immediate memory was normal. The examiner also reported: no delusions, hallucinations, inappropriate behavior, obsessive ritualistic behavior, panic attacks, suicidal or homicidal ideation, episodes of violence, inability to maintain minimum personal hygiene or problems with daily living. The examiner indicated the following symptoms were present: intrusive recollections; nightmares and distressing dreams; psychological distress when exposed to trauma related cues; anxiety; avoidance; diminished interest in previously significant activities; feelings of detachment or estrangement from others; restricted range of affect/emotion response; sleep disturbance; exaggerated startle response; no significant problem with irritability or outbursts of anger; difficulties with concentration; hypervigilance; isolative behaviors; arousal; and racing thoughts. The examiner indicated these symptoms directly interfered with his relationship with his ex-wife and children, limited his social functioning outside of the family, and had resulted in lowered self-esteem and self-confidence. The examiner noted the Veteran's increased anxiety and depression has reduced the Veteran's ability to cope with daily stressors, and assessed the Veteran with a GAF score of 57 with GAF scores of 58 to 65 having been assessed over the past year. December 2012 and May 2013 VA treatment records assessed a GAF score of 63. In an August 2013 VA treatment record, the Veteran reported irritability, depression, nightmares, panic attacks, anxiety, problems staying asleep, avoidance, and trust issues and a GAF score of 60 was assessed. An October 2013 VA Mental Status Examination noted the Veteran's appearance as well built and well-groomed; motor and gait was normal; speech was normal; mood/affect was better/full range; thought process was linear and goal directed; associations were normal; judgment was fair; orientation to all spheres was normal; recent and remote memory was intact; language was relevant; and fund of knowledge was adequate. The VA examiner indicated no suicidal or homicidal ideation, hallucinations, or delusions. During his November 2015 hearing, the Veteran emphasized his inability to establish and maintain effective relationships as well as impaired impulse control, with prior obsessive rituals. In a March 2016 VA treatment record, the Veteran reported increased worry and nightmares. The VA psychiatrist noted: his appearance as well built and well- groomed and dressed in professional attire; mood/affect was anxious/full range; thought process was linear and goal directed; judgment was fair, oriented to all spheres; recent and remote memory was intact, attention and concentration was intact; and language was relevant and coherent. The psychiatrist reported no suicidal or homicidal ideation, hallucinations, or delusions. In an April 2017 VA treatment record, the Veteran reported irritability, depression, nightmares, panic attacks, anxiety, problems staying asleep, avoidance, and trust issues. During the Veteran's most recent VA PTSD examination in April 2017, the VA examiner indicated the Veteran was: alert, attentive, cooperative, and appropriate, with a moderately severe anxious affect and mildly dysphoric mood. His cognitive and intellectual functioning was normal, with good insight and judgment. The following symptoms were noted: persistent, distorted cognitions about the cause or consequences of the traumatic events that lead the individual to blame himself/herself or others; persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; reckless or self-destructive behavior; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep); anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; impaired impulse control, such as unprovoked irritability with periods of violence; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Board finds that the symptomatology and functional impact resulting from the Veteran's PTSD are most appropriately contemplated by a 70 percent rating for the entire appeal period. Initially, the Board emphasizes that GAF scores, alone, are not dispositive in this determination. 38 C.F.R. § 4.126(a). Here, after affording the Veteran the benefit of the doubt, and after considering the medical evidence of record as well as the Veteran's statements and testimony, deficiencies in most areas (family relations, judgment, thinking, and mood) are demonstrated throughout the appeal period, due to such symptoms as: depressed and anxious mood; racing thoughts; isolative behavior; near-continuous panic affecting the ability to function independently, appropriately, and effectively; occasional obsessive behaviors; impaired impulse control; difficulty in adapting to stressful circumstances; an inability to establish and maintain effective relationships; and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Moreover, the Board finds that a disability rating in excess of 70 percent is not warranted. At no point during the appeal period has the Veteran demonstrated gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, or any other symptoms of similar severity, frequency and duration to warrant a finding of total occupational and social impairment. The Board notes that while the April 2017 VA examiner endorsed an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, the preponderance of the remainder of the above-cited symptoms of the Veteran's PTSD are not of the severity, frequency, or duration contemplated in a 100 percent rating. Notably, the evidence does not reflect, and the Veteran does not report, total occupational impairment due to PTSD. See, e.g., April 2011 VA Form 21-8940. ORDER An initial rating of 70 percent, but no higher, for PTSD is granted from October 18, 2010 to April 20, 2017. An initial rating in excess of 70 percent for PTSD is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs