Citation Nr: 1827156 Decision Date: 05/03/18 Archive Date: 05/14/18 DOCKET NO. 13-30 133 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD), prior to September 22, 2013. 2. Entitlement to a rating in excess of 50 percent for PTSD since September 22, 2013. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2011 rating decision, by the St. Petersburg, Florida, Regional Office (RO), which granted service connection for PTSD and assigned a 10 percent rating, effective July 30, 2010. The Veteran perfected a timely appeal of the decision. By a Decision Review Officer's (DRO) decision, dated in August 2013, the RO increased the rating for PTSD from 10 percent to 30 percent, effective July 30, 2010. In July 2015, the Board remanded the case to the RO for further evidentiary development. Following the requested development, in a rating action dated in March 2016, the RO increased the rating for PTSD from 30 percent to 50 percent, effective September 22, 2013. A supplemental statement of the case (SSOC) was issued in March 2016. Additionally, in the July 2015 remand, the Board noted that entitlement to a total disability rating based on individual unemployability (TDIU) had been denied in a September 2011 rating decision, and although the Veteran disagreed with that determination, he did not timely perfect an appeal. Nonetheless, it was determined that a claim for a TDIU had again been raised by the record in the September 2014 Appellate Brief but had not been adjudicated by the RO. Therefore, in July 2015, the Board referred the issue of entitlement to a TDIU to the RO for appropriate action. To date, the RO has not adjudicated that claim and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). FINDINGS OF FACT 1. Prior to September 22, 2013, the Veteran's PTSD was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and reduced reliability, due to such symptoms as sleep impairment, depression, anxiety, intrusive thoughts, irritability, some isolative tendencies. 2. Prior to September 22, 2013, the Veteran's PTSD did not result in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships. 2. Since September 22, 2013, the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: chronic sleep impairment, depression, anxiety, panic attacks, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining relationships, but has not been manifested by deficiencies in most areas of work, school, family relationships, thinking, judgment and mood. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for PTSD have not been met for the period prior to September 22, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a rating in excess of 50 percent for PTSD have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual background & Analysis-Higher Evaluation for PTSD. The Veteran essentially contends that the symptoms of PTSD are more disabling than reflected by the ratings currently assigned. Disability ratings are determined by applying the criteria set forth in the 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. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Historically, the Veteran's initial claim for service connection for PTSD (VA Form 21-526b) was received in July 2010. In conjunction with his claim for service connection, the Veteran was afforded a VA examination for evaluation of PTSD in February 2011. It was noted that the Veteran served in Vietnam from January to July 1970, and his military occupational specialty was antitank assault man. It was also reported that he suffered an injury to the right shoulder in July 1970 and was medivaced to Japan. It was reported that the Veteran had been married 3 times, with his third marriage going on 21 years; and he has one step son. The Veteran reported having good relations with all of his children and his step-son. It was further noted that the Veteran and wife have lived in Florida for 20 years. It was reported that the Veteran enjoys family gatherings for holidays and having people come to his home. The Veteran indicated that he last worked in March 2010 as a sales manager for an auto dealership; he stated that he was ready to retire and his health problems increased. On examination, he was described as clean and neatly groomed. Speech was clear. The Veteran was also described as cooperative and friendly. His affect was appropriate and mood was good. He was fully oriented. Thought process and content was unremarkable. No delusions or hallucinations were reported. No panic attacks were noted and no inappropriate behavior was noted. No homicidal or suicidal thoughts were noted. Memory was normal. It was noted that the frequency of recollections memories and intrusive thoughts have decreased over time, maybe once a week moderate to mild and duration of minutes. It was further noted that the Veteran avoids others and drinks when he is stressed. The pertinent diagnosis was PTSD, alcohol dependence; he was assigned a GAF score of 55. The examiner stated that multiple health conditions prevent work. The examiner observed that long term alcohol abuse has had negative impact on interpersonal relationships and marriage. The Veteran reported drinking to decrease anxiety and stress; the examiner noted that both conditions have negative impact on each other. The examiner opined that it is as least as likely as not that the Veteran has the current mental condition of PTSD and it is related to his military service. Submitted in support of the Veteran's claim were VA progress notes dated from August 2010 to August 2011, which show that the Veteran received follow up evaluation for his PTSD symptoms. These records show that the Veteran was seen in August 2010 for complaints of suffering from depression for the past 40 years; he denied any previous treatment. It was noted that depression screening resulted in a score of 11 which was suggestive of moderate depression. During a clinical visit in October 2010, it was noted that the Veteran was a Vietnam era Veteran who endorsed symptoms of PTSD. It was also reported that the Veteran continued to be haunted by his combat experience in Vietnam and these symptoms have caused great turmoil for him over the years. His affect was described as blunted/restricted/constricted; his mood was anxious and depressed. He was diagnosed with PTSD and assigned a GAF score of 49. In December 2010, he was assigned a GAF score of 45. When seen in March 2011, the Veteran was reported to be casually but appropriately dressed, and his grooming was fair. He was cooperative during the session; speech was of a normal tone rate and rhythm. Mood was mildly anxious and irritable; his affect was congruent with the mood. There were no hallucinations present at this time. Thought processes were normal coherent and goal directed without loose associations or tangential thinking. There were no delusional or obsessive thinking present. No suicidal homicidal or suicidal thoughts were expressed or detected Insight judgment and memory were fair. The assessment was PTSD, and he was assigned a GAF score of 50. An August 2011 VA treatment note reflects a diagnosis of PTSD and GAF score of 59. In December 2011, the Veteran was seen for worsening of PTSD symptoms, including anxiety; he was assigned a GAF score of 58. Submitted in support of the Veteran's claim was a statement from his wife, dated September 22, 2013, wherein she described the current symptoms associated with the Veteran's PTSD. She indicated that they have been together for 28 years and the Veteran rarely discussed military service with her; he never opened up until she insisted that he seek counseling. She noted that the Veteran continued to have nightmares, and he experiences panic attacks when they are in crowds. She also reported that the Veteran hyperventilates and breaks out in sweats. She further noted that the Veteran has become even more withdrawn and he had a tendency to have outbursts of anger. The Veteran's wife maintained that the symptoms of PTSD have "crippled him." She indicated that the Veteran's military service and his current PTSD symptoms have caused him to be unemployed. She noted that, even before his last job ended, the Veteran started having panic attacks at the thought of his inability to provide for his family. On the occasion of a DBQ examination in February 2016, the Veteran reported that his symptoms have increased in both frequency and intensity since his last evaluation. The Veteran related that he has been married three times, with the most recent marriage in 1989 and still married to the same spouse and has 4 children from the previous two marriages. The Veteran indicated that he spends most of his time with his wife; he stated that he does not like crowds. He also spends time with family; he does not have many friends. The Veteran indicated that he worked selling cars until 2010 when he retired; he reported that he was good at his job and was able to focus on the job at hand. The examiner stated that the Veteran's PTSD is manifested by symptoms that include depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was groomed and appropriately dressed. Speech was clear and coherent. He was cooperative and attentive. Affect was appropriate and mood was depressed. He was fully oriented. Mood was described as depressed. He also reported having anxiety. It was further noted that the Veteran experienced panic attacks that occur weekly or less often. He also reported chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The pertinent diagnosis was PTSD. The examiner noted that the Veteran's PTSD resulted in occupational and social 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. The ratings for the Veteran's PTSD is determined by application of 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that code, a 30 percent evaluation is warranted when there is 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 requires occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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); or the inability to establish and maintain effective relationships. A 100 percent rating requires 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; or memory loss for the names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation 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. Id. The rating agency shall also consider the extent of social impairment, but not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). For purposes of considering the evidence in connection with the PTSD issue, the Board notes that the Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV") (100 representing superior functioning in a wide range of activities and no psychiatric symptoms). See also 38 C.F.R. §§ 4.125, 4.126, 4.130. In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to "DSM-IV," AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated "DSM-5," and examinations conducted pursuant to the DSM-5 do not include GAF scores. This appeal was initially certified to the Board prior to August 4, 2014. A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, 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 of 61-70 denotes 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, has some meaningful interpersonal relationships. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. A. Initial rating in excess of 30 percent prior to September 22, 2013. For the period prior to September 22, 2013, the Board finds that the Veteran's PTSD symptoms most nearly approximated the 30 percent evaluation. The specific symptoms associated with the Veteran's PTSD are considered by a 30 percent criteria. Significantly, the medical evidence of record, including the February 2011 examination, reflects that the Veteran complained of depression, anxiety, irritability, intrusive thoughts, and social isolation. There is no indication of symptoms associated with a 50 percent evaluation during this period, to include panic attacks, impaired judgment, and impaired thinking. Nor does the evidence show symptoms of like kind to those listed for higher ratings. During the period prior to September 22, 2013, the Veteran's symptoms were characterized as mild to moderate by his health care providers. In fact, following a VA examination in February 2011, the VA examiner stated that the frequency of recollections memories and intrusive thoughts have decreased over time and the severity of those symptoms have gone from moderate to mild and duration of minutes. During a clinical visit in March 2011, a VA examiner noted that the Veteran's mood was mildly anxious and his affect was congruent to mood. The record indicates that the Veteran was assigned a GAF score of 55 in February 2011. A GAF of 55 reflects only a moderate level of PTSD symptoms, which is consistent with the 30 percent rating assigned. The Board acknowledges that the Veteran was assigned a GAF score of 45 during a clinical visit in December 2010; however, for reasons set forth above, the Board does not find the GAF score reflective of the severity of the Veteran's PTSD. In addition, the Veteran's occupational and social functioning also does not support the assignment of a rating in excess of 30 percent prior to September 22, 2013. During the February 2011 VA examination, it was noted that the Veteran's PTSD and his long term alcohol abuse, which is caused by his PTSD symptoms, have had a negative impact on interpersonal relationships and his marriage; however, it was noted that the Veteran had been married to his current wife for 21 years, and he reported having good relations with his family. The examiner indicated that the Veteran was prevented from working by multiple health conditions. Based on this evidence, the Board finds that the Veteran's PTSD symptoms most nearly approximate the criteria associated with the assigned 30 percent evaluation during the period prior to September 22, 2013. It was not until September 22, 2013, that it is ascertainable from the facts that his disability on appeal approximated the criteria for a higher rating. For these reasons, the Board finds that preponderance of the evidence is against assigning a rating higher than 30 percent for the period prior to September 22, 2013 and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). B. Rating in excess of 50 percent from September 22, 2013. Turning next to the appeal period from September 22, 2013, the Board concludes that the competent and objective evidence of record demonstrates that the Veteran's disability picture for his service-connected PTSD most nearly approximates the criteria for the currently assigned 50 percent evaluation under Diagnostic Code 9411, and no more. The Veteran has been consistently described as having PTSD symptomatology that includes depressed mood, anxiety, chronic sleep impairment, panic attacks, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. However, the Veteran's symptoms, as evidenced by the February 2016 DBQ examination report, do not show 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; spatial disorientation; neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, DC 9411 (discussing the evidence necessary for the next higher evaluation of 70 percent). It is noteworthy that, following the February 2016 DBQ examination, the examiner specifically noted that the Veteran's PTSD was manifested by depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. During the February 2016 VA examination, the examiner noted that the Veteran possesses a self-image of weakness, fragility, and ineffectuality that may make the ordinary stresses and responsibilities of life seem excessively demanding. The examiner noted that the Veteran attempts to avoid emotional experiences and to suppress events that may evoke disturbing memories and feelings. He noted that these defensive efforts often preclude rewarding social experiences, and together with his affective indifference, occasional bizarreness, and withdrawal behavior, may provoke others to view him as peculiar and disconnected. However, the Veteran denied any hallucinations or delusions. He also denied any suicidal or homicidal ideations or thoughts. He also denied any obsessive or compulsive behaviors. In light of the above clinical findings, and the examiner's description of the Veteran's PTSD symptomatology, the Board finds that the Veteran's disability is characteristic of pertinent disability criteria warranting no more than the currently assigned 50 percent rating. As previously noted, the evidence of record is totally devoid of any report of symptoms of the same frequency and severity as illogical or irrelevant speech. There was also no evidence of any symptoms such as thought disorder, psychosis, obsessional rituals, near-continuous panic, impaired intellectual functioning, or impaired judgment of the severity, frequency, and duration contemplated in the higher ratings. Thus, the Board finds that the evidence does not show that the Veteran's PTSD symptoms are of such severity to warrant a rating of 70 percent or higher. Again, no examiner who evaluated the Veteran during this part of the appeal period concluded that the Veteran's PTSD symptoms resulted in deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. Rather, the February 2016 examiner stated that the Veteran's PTSD resulted in occupational and social 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. This is consistent with the evidence of record during this part of the appeal period. At the 2016 DBQ examination, the Veteran reported that his most recent marriage was in 1989 and he is still married to the same spouse; and, he stated that he spends most of his time with his wife and his family. He also noted that he worked selling cars until 2010 when he retired; he reported that he was good at his job and was able to focus at the job at hand. Accordingly, the Board concludes that the Veteran does not meet or nearly approximate the level of disability required for an evaluation in excess of 50 percent for his PTSD for the period from September 22, 2013. Extraschedular Consideration. The Board has considered whether referral for an extraschedular rating is warranted for the relevant periods on appeal. The Board finds that the Veteran's symptoms are contemplated both in kind and degree by the scheduler criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, an analysis is not required in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). In summary, the Board concludes that an initial rating in excess of 30 percent is not approximated for the period prior to September 22, 2013, and a rating in excess of 50 percent is not warranted for any period on appeal, and that the preponderance of the evidence is against granting higher ratings and against remanding for referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 (b) for any other period on appeal. There is no reasonable doubt to resolve in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 30 percent for PTSD, prior to September 22, 2013, is denied. A rating in excess of 50 percent for PTSD, from September 22, 2013, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs