Citation Nr: 1827804 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 10-33 873 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the VA RO that granted service connection and assigned an initial 30 percent rating. This appeal was previously before the Board in August 2017, when it remanded the Veteran's claim in order to obtain a supplemental medical opinion. As is discussed in greater detail below, the Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT The Veteran's PTSD is manifested by symptoms producing no more than occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. In the instant case, the Veteran was provided with all appropriate notification in June 2009, and neither the Veteran nor his representative has otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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). Thus, adjudication of the Veteran's claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and post-service medical treatment records have been obtained to the extent they were both identified and available. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). More specifically, a VA examination must be conducted when the evidence of record does not reflect the current state of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2017). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was provided with examinations in September 2009, November 2014, and January 2017 (with an addendum opinion dated August 2017). The examination reports indicate that the examiners reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran participated in a videoconference hearing before the undersigned in September 2013, and a transcript of this hearing has been associated with the record. Thus, the Board finds that there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same disability or the same manifestations of a disability under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. Under the General Rating Formula for Mental Disorders, in pertinent part, a 30 percent rating applies to 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating applies to 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 compete 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 applies to 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 an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a psychiatric disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating 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. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating. The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Indeed, the symptoms listed under § 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating. Mauerhan, 16 Vet. App. at 442 (2002). The Veteran's actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Also relevant to the Board's analysis is the Global Assessment of Functioning (GAF) score assigned to the Veteran, which is a scale that indicates the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); 38 C.F.R. § 4.130 (2017). While a GAF score is not itself determinative of the most appropriate disability rating, the Board must consider it when assigning a disability rating. VAOPGCPREC 10-95. GAF scores ranging from 51 to 60 indicate 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). GAF scores ranging from 61 to 70 indicate 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 with some meaningful interpersonal relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.130. Turning to the facts in this case, the Veteran filed his underlying claim of entitlement to service connection for an acquired psychiatric disorder at the time of his August 2008 separation from service as part of the Benefits Delivery at Discharge program. In May 2009, the Veteran complained of symptoms of anxiety, jumpiness, and argumentativeness. The Veteran remained married to his spouse of 26 years, and he indicated that he and his spouse had "normal problems". The Veteran maintained contact with his three adult children. The Veteran worked full-time with an engineering contractor. The Veteran reported engaging in leisure activities of sports, swimming, walking, jogging, and watching television. The Veteran coped with stress by exercising and listening to music. The clinician assigned the Veteran a GAF score of 56. The Veteran underwent a VA examination in September 2009, at which time the Veteran reported that he had been married to his current spouse for 26 years. The Veteran indicated that his relationship with his spouse was "up and down" as the result of disagreements about the Veteran's work-related travel and finances. The Veteran reported that he had good relationships with his children and grandchildren. The Veteran reported that he enjoyed watching sports on television. The Veteran was employed full-time with an engineering contractor. The Veteran complained of symptoms of depressed mood, sleep impairment, memory impairment, aggression, and argumentativeness. The examiner assigned the Veteran a GAF score of 65. In January 2010, the Veteran reported that he had been experiencing problems with memory, nightmares, hypervigilance, and anger. The clinician assigned the Veteran a GAF score of 56. During the Veteran's September 2013 hearing, the Veteran reported experiences difficulty with anger, and he indicated that he preferred spending time alone. The Veteran underwent an additional VA examination in November 2014, at which time the examiner found that while a mental condition had been formally diagnosed, the Veteran's symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner noted that the Veteran had worked for a defense contractor since his discharge from service. The Veteran reported that he sought psychological treatment in 2009, and the examiner noted that the Veteran stopped receiving psychological care in 2010. The examiner found that the Veteran suffered from a depressed mood and anxiety as a result of his PTSD. The examiner further found the Veteran to have a markedly diminished interest or participation in significant activities. The Veteran also complained of irritable behavior and angry outbursts. The examiner found that the Veteran was capable of managing his financial affairs. The examiner suspected that "very large portion of [the Veteran's] shared C&P information was produced for a persuasive effect". The examiner administered a psychological test designed to detect malingering, which strongly suggested that the Veteran endorsed symptoms or deficits that he did not, in fact, experience. The Veteran underwent an additional VA examination in January 2017, at which time the examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or the Veteran's symptoms were controlled by medication. The Veteran remained married to his spouse of 30 years, and he indicated that he argued with his spouse approximately once weekly, though he was "fairly satisfied" with his relationship. The Veteran indicated that he saw his wife in-person infrequently, but they spoke often by phone. The Veteran lived with his spouse, son, and grandson. The Veteran reported experiencing social isolation. While he was close to his family members, the Veteran denied having other close friends. The Veteran worked full-time as a military contractor installing communications equipment. The Veteran's work required frequent travel, and he reported having problems at work, including difficulty controlling his aggression. The Veteran denied experiencing a history of significant unemployment or involuntary dismissal. The Veteran was not receiving mental health treatment, but he was prescribed melatonin for insomnia. The examiner found that the Veteran's PTSD resulted in symptoms of depressed mood, anxiety, and chronic sleep impairment. The Veteran reported that stress affected his life "a fair amount," but he also reported that he felt good. The Veteran indicated that he woke frequently throughout the night, and he experienced approximately four hours of sleep nightly on average. The Veteran reported that his energy level was decreased. The examiner found the Veteran to be capable of managing his financial affairs. In an August 2017 addendum opinion, the January 2017 examiner clarified that the Veteran's symptoms were mild or transient and decreased work efficiency and his ability to perform occupational tasks only during periods of significant stress. As a rationale for this opinion, the examiner noted that the Veteran had maintained full-time employment as a military contractor since his discharge from service. The examiner opined that the Veteran was able to maintain effective work and social relationships despite his mental health diagnosis. Turning to an analysis of these facts, the Board concludes that the evidence of record does not show that the Veteran has occupational or social impairment consistent with a rating greater than 30 percent. With regard to the Veteran's occupational impairment, the Veteran has not at any time shown the total occupational impairment that is associated with a 100 percent disability rating, the occupational impairment with deficiencies in most areas that is associated with a 70 percent disability rating, or the occupational impairment with reduced reliability and productivity that is associated with a 50 percent disability rating. In support of this finding, the Board notes that the Veteran has been employed since filing his claim, working in a military contracting position that involves extensive travel. Furthermore, clinicians have otherwise consistently found the Veteran to be able to handle money, pay bills, and manage his own financial affairs. No clinician has found the Veteran to be occupationally impaired to the degree contemplated by a 50 percent disability rating or greater. Indeed, upon review of the evidence, in September 2009, November 2014, January 2017, and August 2017, examiners concluded that the Veteran's psychological symptoms resulted in a level of occupational impairment associated with a 30 percent rating. Furthermore, while the Board acknowledges the Veteran's complaints of having difficulty at work with symptoms such as aggression, the Veteran's existing 30 percent rating acknowledges that his psychological symptoms having a negative impact on his occupational functioning. Similarly, with regard to the Veteran's social impairment, the Veteran has not at any time shown the total social impairment that is associated with a 100 percent disability rating, the social impairment with deficiencies in most areas that is associated with a 70 percent disability rating, or the social impairment with reduced reliability and productivity that is associated with a 50 percent disability rating. In support of this finding, the Board notes that the Veteran has maintained his decades-long marriage to his spouse throughout the course of the appeal, despite the challenge of having a job involving frequent travel. The Veteran has consistently reported enjoying close relationships with his spouse, children, and grandchildren. No clinician has found the Veteran to be socially impaired to the degree contemplated by a 50 percent disability rating or greater. Indeed, upon review of the evidence, in September 2009, November 2014, January 2017, and August 2017, examiners concluded that the Veteran's psychological symptoms resulted in a level of social impairment associated with a rating not greater than 30 percent. While the Veteran, for example in January 2017, stated that he had no close friends, the Board cannot find that this subjective report of symptoms actually resulted in a diminishment in the Veteran's social functioning to an extent greater than that which is associated with a 30 percent rating. To the extent the Veteran has shown certain symptoms associated with ratings greater than 30 percent, the Board, upon review of the Veteran's entire symptom picture, cannot find that such symptoms resulted in functional impairment sufficient to justify a greater rating. For example, the Board notes that a disturbance of motivation and mood is a symptom associated with a 50 percent rating, and clinicians have noted the Veteran's mood and motivation to be impaired as a result of his PTSD. Upon review of the totality of the evidence, however, while the record arguably shows the presence of certain symptoms that are associated with greater ratings, these symptoms have not contributed to a degree of occupational and social impairment consistent with a rating greater than 30 percent. In making this determination, the Veteran's GAF scores, ranging from 56 to 65, have been considered. The Board finds that these scores, which are reflective of mild to moderate symptoms, and particularly when considered along with the symptoms contained in the associated clinical reports, are consistent with the currently-assigned 30 percent disability rating. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 30 percent for PTSD. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 30 percent for PTSD is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs