Citation Nr: 1821749 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 13-18 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD), prior to October 26, 2017. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from March to September 2005 and December 2005 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) from the March and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This matter was previously before the Board in September 2017 and was remanded for further development. The Veteran appeared at a May 2016 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The Board notes that in a November 2017 rating decision, the Veteran was awarded a 100 percent rating for his service connected PTSD with an effective date of October 26, 2017. Therefore, the remaining issue on appeal is the Veteran's PTSD evaluated at 70 percent prior to October 26, 2017. The Board notes that the Veteran's previous representative withdrew in November 2017, and the Veteran has not appointed a new one. FINDING OF FACT The Veteran's PTSD is manifested by no more than occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.130 Diagnostic Code 941 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also 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); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's appeal for an increased rating for his service connected PTSD arises from his disagreement with the initial rating awarded following the grant of service connection for that disability. Where the initial claim is one for service connection, once service connection has been granted, the claim has been substantiated. Therefore, the initial intended purpose of the notice has been fulfilled and additional VCAA notice under § 5103(a) is not required. Any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, once a notice of disagreement has been filed, for example, contesting a downstream issue such as the initial rating assigned to the disability, only the notice requirements for a rating decision and Statement of the Case described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision. 38 C.F.R. § 3.159(b)(3). Here, the RO provided the Veteran the required Statement of the Case in May 2013. The Statement of the Case cites the applicable statutes and regulations pertaining to his claim. As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, a VA examination was scheduled in connection with the current claim. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Other Due Process Considerations As noted in the Introduction, the Veteran was afforded a hearing before the undersigned VLJ in May 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his PTSD. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. In addition, the Veteran was assisted at the hearing by an accredited attorney. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). III. Legal Criteria for Increased Ratings Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2016). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 199 (1999). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. IV. Legal Standard for Mental Health The Veteran is currently service connected for PTSD evaluated as 70 percent prior to October 26, 2017 and 100 percent thereafter under 38 C.F.R. § 4.130, diagnostic code 9411. Under this diagnostic code, 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. Id. A 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. Id. In order to be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. Additionally, the record contains Global Assessment of Functioning (GAF) scores assigned by mental health professionals who have evaluated the Veteran. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.) (DSM-IV). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DSM-IV with the fifth edition of the DSM (DSM-5). See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45099 (effective Aug. 4, 2014). Although the DSM-5 no longer uses the GAF scale to assess functioning, the DSM-IV was in effect at the time the GAF scores of record were assigned. Therefore, the Board will consider the various GAF scores of record in evaluating the Veteran's occupational and social functioning. However, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is not determinative of the VA disability rating to be assigned. See VAOPGCREC 10-95, 60 Fed. Reg. 43186 (1995). As such, in evaluating the severity of mental disorders, the disability rating is to be based on all of the evidence that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (2016) (emphasis added). A GAF score of 51 to 60 is illustrative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 is assigned where 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). A GAF score of 31 to 40 is defined as some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a 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). A GAF score of 21 to 30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends.). A GAF score of 11 to 20 reflects some danger of hurting self or others (e.g., suicidal attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). See DSM-IV. V. Analysis The Veteran contends that his service connected PTSD warrants a rating in excess of 70 percent prior to October 26, 2017. In March 2012, the Veteran underwent a VA initial PTSD examination. The examiner stated that the Veteran's PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of significant stress; or symptoms controlled by medication. Additionally, the Veteran's PTSD was noted to result in depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and difficulty in adapting to stressful circumstances. Furthermore, the examiner stated that the Veteran's diagnosed anxiety disorder is included in his PTSD diagnosis. In July 2012, the Veteran underwent another VA examination. The examiner noted that the Veteran experiences insomnia, nightmares, hypervigilance, intrusive/distressing thoughts, exaggerated startle response, temper problems (although they were noted to have improved), avoidance behaviors, depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, and social withdrawal. The examiner stated that the Veteran did not have a history of panic or anxiety attacks. Additionally, the examiner stated that the Veteran was, at the time, generally functioning satisfactorily with normal routine behavior, self-care, and normal conversation. The Veteran was noted to not pose any threat of danger or injury to himself or others. In August 2012, a private psychological evaluation was conducted. The psychologist concluded that the Veteran endorsed symptoms of depression, which appeared to be mild in nature, as well as symptoms of anxiety specifically related to traumatic experiences from his past. The psychologist noted that the Veteran seemed to have some ability to cope with his symptoms; however, the Veteran was noted to experience hypervigilance when in public causing him to avoid places that are crowded. The examiner stated that the Veteran was able to manage his benefit payments in his own interest. As discussed above, the Veteran also testified to his PTSD before the undersigned in March 2016. The Veteran testified that he has very little drive to complete tasks and does not engage in activities that he used to, such as going to the movie theatre, gym, and car shows. The Veteran stated that he once acted on suicidal thoughts and that his wife and father intervened. Additionally, the Veteran stated that he has difficulty controlling his anger, resulting in yelling, cussing, throwing things, hitting things, and physical altercations. The Veteran stated that these altercations occur between once to four times a month and at one point were occurring at his previous employer four to five times a week in a four-day work week. The Veteran endorsed frequent forgetfulness, difficulty maintaining attention and concentration for more than 30 minutes, feeling nervous and on edge, hypervigilance, decreased socialization, and difficulty sleeping. Additionally, the Board has reviewed the Veteran's extensive VA treatment records. These records, spanning from 2011 to 2017 report all of the symptoms and manifestations discussed previously herein to include sleep impairment, irritability, hypervigilance, and avoidance behavior. Specifically, a May 2013 psychiatry note stated that the Veteran was experiencing worsening insomnia and difficulty falling asleep. However, the Veteran stated that he believes that his medication was beneficial for his nightmares and denied any visual hallucinations. Additionally, the Board notes that the Veteran was given a GAF score of 60 in October 2011 and May 2013, indicating moderate symptoms. Recent treatment notes in 2017 indicate that the Veteran and his wife are in the process of adopting his niece and nephew and that his mental health complaints consistent of worsening sleep and hypervigilance. Furthermore, the Board has considered the lay statements provided by the Veteran's family that detail the Veteran's mental health. These statements note that the Veteran very rarely goes out in public, experiences hypervigilance and exaggerated startle responses, is irritable, easily agitated, argumentative, demonstrates impulse control issues, and experiences sleep impairment. After reviewing the medical and lay statements contained in the evidence of record, the Board finds that a rating in excess of 70 percent for the Veteran's service connected PTSD, prior to October 26, 2017, is not warranted. The Board finds that the Veteran's PTSD is manifested by symptoms most closely approximated to a rating of 70 percent. These symptoms include suicidal ideation, depressed mood, impaired impulse control, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, flattened affect, forgetfulness, anxiety, suspiciousness, and sleep impairment. A higher rating of 100 percent, prior to October 26, 2017, is not warranted because the evidence does not demonstrate that the Veteran's PTSD resulted in total occupational and social impairment manifested by symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, persistent danger of hurting self or others, and disorientation to time or place. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). ORDER Entitlement to a rating in excess of 70 percent for PTSD, prior to October 26, 2017, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs