Citation Nr: 1822909 Decision Date: 04/16/18 Archive Date: 04/25/18 DOCKET NO. 15-17 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial rating in excess of 30 percent for other specified trauma-related disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2015, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A written transcript of the hearing has been prepared and incorporated into the evidence of record. Following the hearing, the Veteran submitted a private May 2016 examination report. Notwithstanding that a waiver is not necessary for Board consideration in this instance, given the May 2015 receipt date of the Veteran's substantive appeal as well as the favorable disposition below, the Veteran did submit a waiver of RO consideration of that evidence. See 38 U.S.C. § 7105(e)(1), (2) (LexisNexis 2017); 38 C.F.R. § 20.1304 (2017). This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager (Virtual VA) paperless claims file associated with the Veteran's claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to November 12, 2015, the evidence of record showed that the Veteran's acquired psychiatric disability was manifested by occupational and social impairment with occasional decrease in work efficiency, although generally functioning satisfactorily with routine behavior and self-care. 2. As of November 12, 2015, the evidence of record shows that the Veteran's acquired psychiatric disability has been manifested by occupational and social impairment with reduced reliability and productivity because of such symptoms as panic attacks more than once a week, impairment of memory, disturbances of motivation and mood, and difficulty in maintaining effective relationships. CONCLUSIONS OF LAW 1. Prior to November 12, 2015, the criteria for an initial disability rating higher than 30 percent for an acquired psychiatric disability were not met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413 (2017). 2. As of November 12, 2015, the criteria for a disability rating of 50 percent, but not higher, for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9413 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties 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 F3d. 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 F3d. 1359, 1361 (Fed Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings - In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, 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 (2017). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a) (2012). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (2017). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159 (2017). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b) (2012). Specific Rating Criteria The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 (2017) provides the following ratings for psychiatric disabilities, including other specified trauma-related disorder: 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), is assigned a 30 percent rating. 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, merits a 50 percent rating. 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, warrants a 70 percent rating. 38 C.F.R. § 4.130 (2017). 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, warrants a 100 percent rating. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The Global Assessment of Functioning (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p. 32]. 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). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). GAF scores ranging from 51 to 60 reflect 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). Background VA treatment records dated from January 2012 forward reflect treatment for mental health complaints. The Veteran took medications for his symptoms. Records throughout 2012 show treatment for depression and sleep disturbance that included recurring nightmares. In March 2012, he reported having suicidal feelings in the past but not "for many years." His mental health symptoms included lack of focus and concentration. He had "spells" wherein he suffered from chest pain, sweats, palpitations, and full body tremors. He generally had a depressed mood. He took medications for his symptoms. In April 2012 his GAF score was 50. In July 2012, his GAF score was 58. In December 2012, his sleep problems continued, and his condition was described as stable. He continued with his medications. An April 2013 VA record reflects that the Veteran's condition was about the same although his nightmares continued. It was noted that this symptom had benefitted from therapy for a time but no longer. He had begun reducing his psychotropic medications because he felt over medicated. In January 2014, his wife stated that the Veteran had had a bad 2013. Records showed a loss of 21 pounds during the year. Private medical records to include records provided by the Social Security Administration (SSA) dated from 2012 through 2014 show that the Veteran's medical history included depression and sleep problems. He was essentially being treated for other conditions. When examined by VA in September 2014, the examiner noted that the Veteran exhibited significant reexperiencing, avoidance, and hypervigilance symptomatology. The diagnosis was other specified trauma-related disorder. He did not meet the criteria for posttraumatic stress disorder (PTSD). Although he had periods of low mood, he maintained a good relationship with his family and got some enjoyment out of a variety of activities. When asked to check the statement that best summarized the Veteran's level of occupational and social impairment, the examiner noted impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. His sleep disturbance problems continued as did his anxiety. On physical examination, he was adequately groomed. He was fully oriented, and his memory and attention were not formally assessed but appeared within normal limits. The Veteran was pleasant and cooperative for the interview. His mood was mildly anxious but his affect was expressive and congruent with the conversation. He was capable of managing his own funds. Additional VA examination was conducted in September 2015. The Veteran's level of occupational and social impairment remained the same as when examined in 2014. He had been married for 49 years and had "OK" relationships with his adult sons. He had no close friends. He had been retired since 2000 after working with the same company for approximately 30 years. His symptoms continued to include depression, anxiety, and chronic sleep impairment. Also noted were mild memory loss, and feelings of hopelessness, guilt, and worthlessness. He had low self-esteem. On examination, he was alert and well oriented, but he endorsed a depressed mood. His energy levels were reduced. He had recurrent panic attacks and feeling of irritability. His memory and concentration were not good. The Veteran and his wife provided testimony in support of his claim at a videoconference hearing on November 12, 2015. At that time, the Veteran's wife related that his ability to function had decreased. Specifically, she noted that on a weekly basis, he had "meltdowns" where he was not able to function. He did not even eat during these periods. Essentially, he just slept for approximately 48 hours. The Veteran continued to report sleep disturbance. He described social isolation, difficulty in completing projects, and lack of trust of others. He also indicated continued treatment. Specifically, he took medication prescribed by a VA physician who he saw about every six months. He also was treated by a private physician. A private May 2016 mental evaluation report reflects numerous medications for the Veteran's mental health symptoms. He sometimes experienced "shaking episodes" related to nervousness. His social isolation continued as did his sleep disturbance. He reported some short term memory impairment. On mental status examination, he was oriented and denied having thought disorder. He admitted to suicidal ideation on occasion and explained that he had not admitted this before as his wife was in the room when evaluated. His GAF score was 45. Analysis Based on all of the evidence set forth above, the Board finds that an initial disability rating higher than 30 percent for the service-connected acquired psychiatric disability is not warranted prior to November 12, 2015. Examination conducted in September 2015, just prior to a November 2015 hearing, essentially showed that the Veteran's social and occupational impairment remained as on previous evaluation. However, as indicated in the wife's testimony at the hearing, he now showed complete shutdown on a weekly basis which resulted in his primarily sleeping for 48 hours. Such severity of his condition had not previously been reported. Essentially, the record reflects that his mental health symptoms have remained the same through the medical records through November 2015. Specifically, his chronic mental health symptoms include depression, anxiety, sleep disturbance with recurring nightmares, and social isolation. At no time in the medical record does it show that he exhibited impaired judgment, impaired abstract thinking, or difficulty with following complex commands. Suicidal ideation was not described until private examination in 2016. As such, the Board finds that a higher disability rating was not warranted at any time prior to the videoconference hearing on November 12, 2015. As noted above, the first evidence that the Veteran's disability picture with respect to his acquired psychiatric disability had worsened was at the time of the November 12, 2015, videoconference hearing. Complete meltdowns lasting for 48 hours had not previously been reported. Moreover, some memory loss and suicidal ideation, noted at the 2016 evaluation, had not previously been reported. Based on the evidence as of November 12, 2015, a 50 percent disability rating is warranted. The disability picture is one of reduced reliability and productivity, consistent with the 50 percent disability rating criteria. A review of the evidence, however, shows that the Veteran does not exhibit deficiencies in most areas. While he is not a socially outgoing person, by his own assertion he has relationships with his wife and adult sons. There is no evidence that the Veteran has illogical speech patterns, difficulty functioning appropriately due to depression or anxiety, impaired impulse control, obsessional rituals, difficulty in handling stressful situations or other symptoms of the severity, frequency or duration commensurate with this level of disability. Clearly, he is able to attend his medical appointments and sometimes shops with his wife. Based on this evidence, the Board finds that a greater than 50 percent disability rating for the acquired psychiatric disability is not warranted during this period. The Board has been mindful of the "benefit-of-the-doubt" rule and, in this case, there is an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination as of November 15, 2015, but not before. Final Considerations As a final point, the Board notes that the matter of a veteran's entitlement to a total disability rating due to individual unemployability (TDIU) may be considered a component of a rating claim when such is expressly raised by the veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, there is no evidence or argument that the Veteran has actually or effectively been rendered unemployable solely due to his acquired psychiatric disorder. In this regard, the Board notes that the Veteran has related on more than one occasion that he retired years ago after working for over 30 years for the same company. Hence, the matter of the Veteran's entitlement to a TDIU due to his service-connected disorder has not been raised in conjunction with the current claim for increase, and need not be addressed. ORDER Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disability is denied. Entitlement to a disability rating of 50 percent, but no higher, for an acquired psychiatric disability is granted from November 12, 2015, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs