Citation Nr: 1821850 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 11-05 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel INTRODUCTION The Veteran had two periods of active service from May 1978 to May 1982 and from December 1982 to September 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Pittsburg, Pennsylvania. That rating decision granted service connection for PTSD and assigned a 10-percent rating effective October 1, 2006, the day following the Veteran's separation from service. The Board remanded the Veteran's PTSD rating claim for further development in March 2014 and October 2014. After further development in accordance with remand orders, in a rating decision mailed in June 2017, the RO granted 70 percent disability rating for PTSD effective October 1, 2006. However, as that grant does not represent a total grant of benefits sought on appeal, this claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). On remand the Veteran was given a new VA examination, an opinion was provided, 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. 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. CONCLUSION OF LAW The criteria for a rating in excess of a 70-percent rating for PTSD have not been met. 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. In March 2007, the VA notified the Veteran of the evidence necessary to substantiate his claims, and informed him of the steps VA had taken. The Veteran also signed a VCAA Notice Acknowledgement in May 2006 and August 2008, confirming, in part, receipt of the VCAA notice. Regarding the Veteran's claim for an initial rating for PTSD, VA has satisfied its duty to notify because an appeal for an initial 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 and private 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 June 2006, July 2010, and September 2016 to assess the severity and manifestations of his service-connected PTSD. The examiners noted a review of the claims file, documented the Veteran's reported subjective symptoms, and performed an 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 and opinions 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. II. Increased Rating for PTSD The Veteran contends that his service-connected PTSD is more severe than accounted for in his current disability rating of 70 percent. In an October 2007 letter disagreeing with the 10-percent rating for PTSD, the Veteran stated that the "10% disability for this is unjust, as PTSD has ruined my life, personally and professionally." See Correspondence, received November 10, 2007. In Appellate Briefs submitted in January and February 2018, the Veteran's representative argued that the Veteran was entitled to a 100-percent rating for PTSD. 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 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. 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. 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. 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 The Veteran filed a claim for service connection for PTSD and other disabilities in May 2006 when he was preparing to separate from active service. As stated above, in an April 2007 rating decision, the RO granted service connection for PTSD and assigned a 10-percent rating effective October 1, 2006, the day following the Veteran's separation from service. In March 2004, the Veteran indicated that he intended to seek or had sought mental health treatment due to his recent deployment. See Service Treatment Records (STR) - Medical, DD Form 2796 dated March 25, 2004. In a June 2004 Post-Deployment Health Assessment, the Veteran reported that he witnessed enemies and civilians being killed, or dead during deployment and felt that he was in great danger of being killed. See STR. The Veteran also endorsed having nightmares, frightening or upsetting thoughts, heightened startle response, avoidance, and increased detachment from others as a result of his deployment. Id. The Veteran's STRs also confirm that he was receiving psychiatric therapy for chronic PTSD at the Landstuhl Regional Medical Center (RMC) prior to separation from service. See Medical Treatment Record - Government Facility received in June 2016. The Veteran underwent a VA general medical examination in June 2006. See June 2006 VA examination. On mental status examination, the Veteran was alert and oriented and appeared pleasant and cooperative. The Veteran reported that since the rocket attack in 2004 "he has had multiple problems of sleep disorders, nightmares, anger, frustration, occasional depression, fear of windows, and a short temper." He also reported that he slept with guns. The Veteran reported the he was receiving counseling and was prescribed Prozac, but noted the medication was ineffective. Id. The Veteran also endorsed problems with short term memory. The examiner found the Veteran displayed good memory during interview and that all questions were answered appropriately. The Veteran was diagnosed with PTSD with poor response to therapy. In March 2007, the Veteran was seen by a VA psychologist for a follow up visit. The Veteran complained of chest pains. He also endorsed increased irritability, difficulty sleeping, intrusive thoughts, and problems maintaining hygiene. See Landstuhl RMC Primary Care note, in Medical Treatment Record - Government Facility. In April 2007, the Veteran was seen in the Niagara Falls VA emergency room for complaint of "nightmares all the time." See April 2007 Niagara Falls Clinic Treatment, in CAPRI received in December 2017. The Veteran denied any suicidal or homicidal ideations but reported he felt depressed. The Veteran was noted to be cooperative and pleasant and displayed good judgment and insight. Id. He was diagnosed with PTSD/depression and referred to behavioral health. Following referral, the Veteran was seen in the Niagara Falls Behavior Health Outpatient clinic almost a week later for an initial consultation. See Niagara Falls Behavior Health Outpatient Progress Note, in CAPRI received in June 2016. The Veteran reported that he experienced anxiety, intrusive thoughts, guilt, and felt easily startled and edgy. Id. The Veteran appeared well groomed, calm and cooperative during mental status examination. His thought process was intact. No delusions or hallucinations were found. No homicidal or suicidal ideation was noted. He was also fully oriented to time, place, person, and situation. Id. The Veteran requested to continue psychotherapy but declined psychotropic medications. In October 2007, the Veteran stated that "[a]fter serving 15 months in Iraq and being Combat Wounded by a rocket in March, 2004 I have repetitive nightmares, am constantly on guard, sleep with a loaded weapon, have severe depression, major memory loss, homicidal thoughts about Iraqis, uncontrolled rage, [and] panic attacks." See Correspondence, Received on November 10, 2007. In September 2009, the Veteran underwent a general medical examination by an orthopedist Dr. J.B. See Compensation and Pension (C&P) Examination report. The Veteran reported experiencing problems with sleep, including waking up with nightmares "in which he hears things which he associates with his combat events, sometimes he even smells blood in his dreams." Id. He also endorsed feeling anxiety and anger upon waking, and needing up to 20 minutes to calm down as well as using alcohol during these times. On mental status examination, the Veteran was well-groomed and casually dressed. The examiner noted that the Veteran "described cognitive impairments, for example difficulties with concentration, attention, and memory, but these were not plausibly evident to the examiner." The examiner further found "[n]o indications of phobias, compulsion symptoms, delusions, hallucinations, or depersonalization." Id. In November 2009, the Veteran submitted a VA Form 21-4138, providing a chronology of his mental health treatments. See November 2009 VA Form 21-4138. Specifically, the Veteran noted that he did not have treatment records for 2008 to 2009 because he sought alternative faith healers and online groups. A VA medical opinion based on a review of the record was provided in July 2010. See July 2010 VA Examination report, C&P examination Results: Mental Disorders. The examiner diagnosed the Veteran with chronic PTSD and assigned the Veteran a GAF score of 70. The examiner also noted the Veteran's current symptoms of PTSD were mild. The examiner further opined that the Veteran remained employable and that "[t]here appears to be no evidence of psychotic symptomology." In March 2014, the Board in pertinent part found the prior VA examinations pertaining to PTSD were inadequate and remanded the matter for a new VA examination. Pursuant the Board remand, the Veteran was afforded a VA examination in September 2016. See C&P Examination Report, Review PTSD - DSM-5, Disability Benefits Questionnaire (DBQ). The Veteran reported chronic PTSD, depression, persistent sleep problems, and alcohol abuse. The Veteran endorsed trouble staying asleep, nightmares, low frustration tolerance, anger, irritability, deficits in attention, concentration, and memory, as well as hypervigilance, increased startle response, and difficulties relating to others." Id. The Veteran also reported depression and related symptoms of hopelessness, loss of interest in pleasurable activities, irritation, past suicide ideation and homicide ideations, as well as periodic neglect of hygiene. The examiner found the Veteran had symptoms including depressed mood, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood, difficulty in adapting to stressful circumstances, and neglect of personal appearance. Id. The examiner diagnosed the Veteran with PTSD, unspecified depression disorder, alcohol abuse disorder, insomnia and opioid abuse disorder in remission. Although the examiner noted that the Veteran's psychiatric disabilities had overlapping symptoms, he attributed the following symptoms to the Veteran's PTSD: nightmares, flashbacks, hypervigilance, increased startle response, re-experiencing of the traumatic events, avoidance of things that elicit traumatic events, lingering guilt/horror, self-blame, suspiciousness and anxiety." The examiner also opined that the Veteran's occupational and social impairment is best described as "occupational and social impairment with deficiencies in most areas, such as work school, family relations, judgment, thinking and/or mood." Id. As noted above, in June 2017, the RO granted a 70-percent disability rating for PTSD effective October 1, 2006. Analysis After reviewing all the evidence, the Board finds that the overall social and occupational impairment caused by the Veteran's PTSD most nearly approximates impairment warranting a 70-percent rating, for the period. 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 explained below, 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 the record does not reflect that he has 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 or symptoms such as the aforementioned. Moreover, the record does not contain evidence of persistent hallucinations and homicidal or suicidal ideations during his VA examinations or 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 or symptoms such as what has been noted. 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 score which was relevant at that time was listed as 70, which represents mild symptoms. See DSM-IV. The medical records do not show that the Veteran exhibited symptoms of grossly inappropriate behavior, persistent delusions or hallucinations, persistent danger of hurting himself or others, intermittent inability to perform daily living, disorientation to time living or place, memory loss of close relatives, own occupation or own name. Thus, the Veteran's overall PTSD symptoms are not productive of total and social impairment. 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 PTSD symptoms as this comes to him through his senses. 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. The medical findings as provided in the examination reports directly address the criteria under which this type of disability is evaluated. The Board, therefore, finds the medical findings to be of a greater probative value as to the current severity of the Veteran's PTSD than his statements. 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 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 is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs