Citation Nr: 1824892 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 13-02 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to March 7, 2017, and to a rating in excess of 50 percent thereafter. ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2009, the Veteran filed his present claim seeking a disability rating in excess of 30 percent for his service-connected PTSD. In July 2016, the Board remanded the Veteran's claim for additional development, including a new VA examination to assess the current severity of his PTSD. At that time, the Board granted a total disability rating (TDIU). This issue is not before the Board. Based on the results of that examination, the RO issued an October 2017 rating decision that increased the Veteran's disability rating from 30 to 50 percent, effective March 7, 2017. Because the Veteran is presumed to seek the maximum available benefits, the Veteran's increased rating claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In his January 2013 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. In April 2016, the Veteran was informed that his requested Board hearing had been scheduled for June 2016. However, in a June 2016 communication, the Veteran indicated that he wished to cancel his scheduled Board hearing. Therefore, the Board finds that such hearing request has been withdrawn. 38 C.F.R. § 20.704(e) (2017). The Board further notes that, in February 2017, the Veteran notified that Board that he no longer wished to be represented by his previously appointed representative. The Veteran has not appointed another representative, and the Board considers this matter with the understanding that she is appearing pro se. FINDINGS OF FACT 1. Prior to March 7, 2017, the Veteran's PTSD has been manifested by mild to moderate symptoms resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Since March 7, 2017, there is evidence of occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Prior to March 7, 2017, the criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. Since March 7, 2017, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 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 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Veteran is seeking entitlement to increased disability ratings for his service-connected PTSD. Essentially, he contends that his PTSD symptoms are of such severity that he should receive a disability rating in excess of 30 percent prior to March 7, 2017, and a disability rating in excess of 50 percent since that date. As discussed below, the Board concludes that the Veteran's PTSD does not more closely approximate the criteria for increased disability ratings in excess of 30 percent prior to March 7, 2017, and in excess of 50 percent thereafter. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In rating disabilities, VA cannot differentiate a nonservice-connected disability from service-connected disability in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's service-connected PTSD has been rated under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders. In particular, this Diagnostic Code authorizes compensable ratings of 10, 30, 50, 70, and 100 percent. Ratings are assigned according to the manifestation of particular symptoms. Under Diagnostic Code 9411, a 30 percent rating is assigned for 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 50 percent rating is warranted where there is evidence of 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. Id. A 70 percent rating 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 circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted for a mental disorder 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. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders. Id. 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 score between 41 and 50 is indicative of 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 between 51 and 60 is indicative of 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 coworkers); a GAF between 61 and 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; a GAF between 71 to 80 is indicative that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (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 DSM-5 does not use the GAF Scale to assess functioning, the DSM-IV was in effect at the time the GAF scores were assigned. Further, this case was pending before the RO prior to the effective date of the amendment - the case was initially certified for appeal in May 2013. Thus, the Board will consider the 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 Carpenter, supra. The percentage evaluation is based on all of the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126 (2017). The evidence that will be considered by the Board in the context of this appeal will begin September 11, 2008; one year prior to the receipt of the Veteran's increased rating claim. See 38 C.F.R. §3.400(o)(2) (2017). The pertinent evidence of records consists of VA treatment records documenting the Veteran's ongoing psychiatric treatment throughout the appeal period, VA psychiatric examination reports dated in January 2009, January 2010, and March 2017, and lay statements from the Veteran and his wife regarding the severity of his PTSD symptoms. Based on a comprehensive review of the record, the Board finds that the preponderance of the evidence fails to demonstrate that the Veteran's PTSD has resulted in occupational and social impairment with reduced reliability and productivity prior to March 7, 2017, and it has not resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, since March 7, 2017. Evidence of Record prior to March 7, 2017 Prior to March 7, 2017, VA treatment records reflect that the Veteran sought ongoing treatment for his service-connected PTSD. When evaluated, the Veteran was generally found to have a congruent mood and affect; his insight and judgment was intact; his speech was coherent; he continuously did not endorse suicidal ideation, homicidal ideation, or psychosis; and there was no evidence that he experienced any hallucinations or delusions. He was generally calm and cooperative, with good grooming and eye contact. He presented with symptoms of depression, anger, avoidance behaviors, anxiety, nightmares, flashbacks, hyperarousal, and irritability. Evaluators noted that the Veteran tended to isolate himself more and demonstrated increased social withdrawal. These records indicate that the Veteran's symptoms improved with medication. Assigned GAF scores generally ranged from 50 to 70, with most scores falling between 55 and 60. The Veteran was afforded a VA psychiatric examination in January 2009. During that evaluation, the VA examiner noted that the Veteran suffered from decreased concentration, lower productivity and task completion due to sleeping medications prescribed for his PTSD. The Veteran indicated that he avoided crowds and loud places/noises and that he had low frustration tolerance/irritability. The examiner noted that the Veteran's depressed mood was secondary to foot pain and his inability to walk or be as active as he used to be. The examiner indicated that the Veteran's PTSD symptoms did not result in total occupational and social impairment; did not result in occupational and social impairment resulting in deficiencies in judgment, thinking, family relations, work, mood, or school; and did not result in reduced reliability and productivity. The examiner assigned you a Global Assessment of Functioning (GAF) score of 65. Nevertheless, the examiner indicated that the Veteran's PTSD symptomatology only resulted in an occasional decrease in work efficiency or in intermittent periods of inability to perform occupational tasks but with generally satisfactory functioning. The examiner noted that while the Veteran was "employable by mental health standards," the Veteran's other medical conditions were the "primary cause of employment difficulties." The examiner also noted that the Veteran does better when he is not around other people or stressful situations. A statement from the Veteran's wife dated September 11, 2009, noted that the Veteran's PTSD had worsened. She indicated that the Veteran had a history of angry outbursts and that she had to handle his appointments; tell him when to take his medication; take all of his telephone calls for him; and complete all of his paperwork and bills. In his October 2009 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he had worked as an "[i]ndustrial [me]chanic" for approximately 16 years for two companies. The date of last full time employment was reported to be in July 2000. The Veteran reported that his PTSD, along with his other service-connected disabilities, prevented him from securing or following substantially gainful occupation. The Veteran wrote that he had completed four years of high school education and listed previous training in the areas of machine repair and maintenance, welding, and electronics. The Veteran further reported that he had not been working because of his service-connected conditions and that he could not "concentrate at all" at work after taking all the prescribed medications for his service-connected conditions. The Veteran underwent another VA psychiatric examination in January 2010. During that evaluation, the VA examiner reported a diagnosis of PTSD with symptoms of intrusive recollections, distressing dreams, poor sleep irritability, and decreased concentration. The examiner noted that the Veteran was treating his condition with Zolpidem, Prazosin, Mirtazapme, and Clonazepam. The examiner further noted that the Veteran had been married for 23 years and that he described a good relationship with his wife and family. The Veteran indicated that he has several friends with whom he socializes with on a regular basis. He indicated that he enjoys listening to the radio and cleaning his motorcycle. He denied problems with alcohol or substance abuse and the examiner indicated that the Veteran was competent to manage his financial affairs. During the examination, the Veteran presented alert and oriented; his attitude was cooperative; his mood was good; his affect started out good and then was flat; his attention, insight, judgment and memory were intact; and he denied panic attacks and suicidal or homicidal ideation. The examiner noted that the Veteran's PTSD symptoms were transient or mild and resulted in decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. The examiner indicated that the Veteran's PTSD symptoms did not result in total occupational and social impairment; did not result in occupational and social impairment resulting in deficiencies in judgment, thinking, family relations, work, mood, or school; did not result in reduced reliability and productivity; and did not result in occasional decrease in work efficiency or in intermittent periods of inability to perform occupational tasks but with generally satisfactory functioning. The examiner assigned a GAF score of 65. The examiner noted that the Veteran had stopped working in 2000 because of his medical problems. The examiner further noted that the Veteran's usual occupation was mechanic/machinist /electrician/supervisor." The examiner opined that the Veteran's unemployed status was not due to his PTSD because there were "no psychological reasons [the Veteran] should not be able to obtain or maintain employment." Evidence of Record since March 7, 2017 In March 2017, the Veteran underwent another VA psychiatric examination. The VA examiner noted that the Veteran was diagnosed with PTSD. On evaluation, the Veteran was dressed appropriately in casual attire with good hygiene and grooming. He had no abnormal or involuntary movements. His mood was subdued. He was orientated to all spheres. His thought content was future oriented. His thought processes were linear, logical and goal directed. He denied suicidal ideation, homicidal ideation, and hallucinations. His attention and concentration were within normal limits. On evaluation, it was noted that his mental condition causes depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner stated that the Veteran's mental condition causes 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. Conclusions Based on a comprehensive review of the record, the Board finds that the Veteran is not entitled to a 50 percent evaluation prior to March 7, 2017, or to a 70 percent evaluation after that date. Prior to March 7, 2017, the Veteran the Veteran was generally found to have a congruent mood and affect; his insight and judgment was intact; his speech was coherent; he continuously did not endorse suicidal ideation, homicidal ideation, or psychosis; and there was no evidence that he experienced any hallucinations or delusions. He was generally calm and cooperative, with good grooming and eye contact. He presented with symptoms of depression, anger, avoidance behaviors, anxiety, nightmares, flashbacks, hyperarousal, and irritability. Evaluators noted that the Veteran tended to isolate himself more and demonstrated increased social withdrawal. These records indicate that the Veteran's symptoms improved with medication. As previously noted, assigned GAF scores generally ranged from 50 to 70, with most scores falling between 55 and 60. While several GAF scores of 50 were recorded, which could indicate serious symptoms or any serious impairment in social, occupational, or school functioning, the evidence of record generally does not support a rating in excess of 30 percent during this period of the appeal. Moreover, after reviewing the evidence of record and conducting thorough evaluations of the Veteran, both the January 2009 and January 2010 VA examiners found that the Veteran's PTSD symptomatology generally did not result in occupational and social impairment with reduced reliability and productivity. In fact, both examiners characterized the Veteran's PTSD symptoms as resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Therefore, prior to March 7, 2017, the Board finds that the severity of the Veteran's service-connected PTSD was adequately represented by the previously assigned 30 percent disability rating. Beginning March 7, 2017, the evidence of record demonstrates a slight worsening in the Veteran's PTSD symptoms. On March 2017 VA psychiatric examination, the VA examiner found that the Veteran's symptoms were mild to moderate and generally resulted in 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. While the evidentiary record shows that the severity of the Veteran's PTSD most closely approximates the criteria for a 50 percent disability rating, at no time does the Veteran demonstrate symptoms that result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The Board fully recognizes that the listed symptoms for a 70 percent schedular rating are not all encompassing and their presence is not necessarily determinative. However, the Veteran's symptoms must cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Occupational and social impairment, with deficiencies in most areas, as contemplated by the rating criteria, is simply not shown or even approximated. In this regard, it is again important for the Veteran to understand that the Board has not discounted his statements regarding the severity of his psychiatric disorder (in fact, the opposite is true - providing much of the basis for agreeing the with previously assigned disability ratings both prior to and since March 7, 2017). However, even considering these symptoms, the record does not support the assignment of a 70 percent disability evaluation. In summary, the Board believes that the 50 percent rating prior to March 7, 2017, and the 70 percent disability rating since March 7, 2017, adequately contemplates the frequency, severity, and duration of his symptoms resolving all doubt in favor of the Veteran. The rating now assigned is based on all the evidence of record rather than any isolated medical finding or assessment of level of disability. 38 C.F.R. § 4.126(a). The Board finds that his myriad of symptoms do not more nearly reflect the frequency, severity, and duration of symptoms ratable at the 50 percent disability level prior to March 7, 2017, or ratable at the 70 percent disability level since March 7, 2017, as discussed above. For the above stated reasons, for the entire period on appeal, resolving reasonable doubt in the Veteran's favor, the mental health symptomatology has been shown to have been productive of mild to moderate occupational and social impairment most closely approximating the criteria for a 50 percent rating prior to March 7, 2017, and for a 70 percent disability rating since that date. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411; Hart v. Mansfield, 21 Vet. App. 505 (2007). Other Considerations The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record with regard to the claim of an increased rating for his PTSD. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Prior to March 7, 2017, a rating in excess of 30 percent for PTSD is denied. Since March 7, 2017, a rating in excess of 50 percent for PTSD is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs