Citation Nr: 20007735 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 15-23 451 DATE: January 29, 2020 ORDER Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to February 1, 2013, and in excess of 70 percent thereafter, excluding a period of temporary total evaluation, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that, excluding a period of temporary total evaluation, prior to February 1, 2013, the Veteran’s service-connected PTSD resulted in impairment that most closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. After February 1, 2013, excluding a period of temporary total evaluation, the Veteran’s service-connected PTSD was not manifested by total occupational and social impairment. CONCLUSION OF LAW 1. The criteria for entitlement to a rating higher than 30 percent for a service-connected PTSD prior to February 1, 2013, and 70 percent disabling thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 2004 to November 2005, November 2006 to January 2009, and April 2009 to June 2010, with additional subsequent service in the Army National Guard. This matter was previously before the Board in July 2018, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a November 2019 supplemental statement of the case. Therefore, the Board finds that VA has substantially complied with the June 2018 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating a veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to an evaluation in excess of 30 percent disabling for PTSD prior to February 1, 2013, excluding a period of temporary total evaluation The Veteran has maintained that, prior to February 1, 203 his service-connected PTSD was more disabling than the currently-assigned 70 percent evaluation. The Veteran’s mental health disability is currently rated under Diagnostic Code 9411 for PTSD. Under Diagnostic Code 9411, a 30 percent rating is prescribed when there is evidence of 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, and recent events). A 50 percent rating is prescribed when 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; impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is prescribed when there is evidence of 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. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran first reported symptoms of PTSD and sought treatment for the same in approximately April 2012. He was enrolled in both individual and group PTSD therapy with successful results. Treatment notes from April to July of 2012 show the Veteran reporting improvement with symptoms after application of techniques developed in group and individual therapy. In treatment notes the Veteran was described as casually dressed and groomed. He was alert and oriented. Speech was clear and goal-oriented. Mood was congruent with affect. Disturbances in thought content and process were not evident. Judgment and insight were intact. Current suicidal and homicidal ideation, intent, or plans were denied. Despite the Veteran’s reported improvement, he voiced his wish to obtain further improvement and was deemed a candidate for in-patient PTSD treatment. VA treatment notes from this period show the Veteran was participating in a PTSD education group, as well as individual therapy. He was consistently described as being appropriately groomed, cooperative, with normal speech and thought processes and content. He denied suicidal or homicidal ideation and was alert and oriented to all spheres. The Veteran was afforded a VA PTSD examination in September 2012. The Veteran was diagnosed with PTSD for VA purposes. At the time of the exam, he reported depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He described being hypervigilant in certain settings. The Veteran reported first receiving mental health care in approximately March 2012 with treatment consisting of medication. He was living with his brother and was active in his church and with the church’s food ministry. In his spare time, he enjoyed fishing and hunting. The examiner opined that the Veteran’s psychiatric condition caused 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. Based on the evidence of record, the Board finds the Veteran’s symptoms most approximate those of a 30 percent rating and therefore, the claim for a higher rating prior to February 1, 2013, excluding a period of temporary total evaluation between November 5, 2013 and February 1, 2013, is denied. The Board finds that the Veteran’s PTSD symptoms, consisting of depression, anxiety, hypervigilance, sleep impairment and disturbances of motivation and mood, more closely resemble occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This finding is supported by the conclusion of the September 2012 VA examiner, Regarding all the above, the Board acknowledges the Veteran’s statements that he believes his PTSD was worse than indicated by the 30 percent disabling rating. The Board also acknowledges the Veteran sought treatment for his mental health. However, while the Veteran is competent to report symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his mental health condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board provides more weight to the competent objective evidence of record and has weighed it as discussed above. The Board finds the examination discussed above to be adequate because the examiner saw the Veteran in person, reviewed his file, conducted all appropriate tests necessary, and rendered an opinion backed by explanations. In reaching its decision, the Board has considered the benefit of the doubt rule. However, the preponderance of the evidence clearly reflects the Veteran’s symptomatology more closely approximates that contemplated by a 30 percent evaluation. Therefore, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107 (b); Gilbert, supra. Entitlement to a disability rating in excess of 70 for an acquired psychiatric condition after February 1, 2013 Between November 5, 2012 and January 4, 2013, the Veteran was hospitalized as part of a program for PTSD and has been awarded a temporary total evaluation from November 5, 2012 until February 1, 2013. A February 2018 rating decision assigned the Veteran a 70 percent disability rating for his service-connected PTSD effective February 1, 2013, the first day following the last day of the month of discharge from in-patient hospitalization. However, since this increase did not constitute a full grant of the benefit sought, the higher initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran underwent a VA PTSD examination in December 2017. At that time, the Veteran was living with a girlfriend. He reported experiencing nightmares and avoiding interacting with persons of a certain race. Symptoms such as anxiety, suspiciousness, chronic sleep impairment, flattened affect, and disturbances of motivation and mood were noted. He described spending time with his grandchildren. The examiner concluded that the Veteran was experiencing occupational and social impairment with deficiencies in most areas. The Veteran was afforded an additional VA PTSD examination in June 2018. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. VA treatment records from 2013 through the present show that the Veteran denied auditory or visual hallucinations and there was no evidence of psychotic thought processes. He reported frequent nightmares. His hygiene was described as adequate. The Veteran was found to be alert and oriented in all spheres. Speech was fluent and normal in tone and rate. There were no language difficulties. Thought processes were logical, linear, and goal-directed and without evidence of thought disorder or perceptual disturbances. There were no loose associations and no expressed delusional content. There was no evidence of suicidal or homicidal ideation. Insight was fair. Judgment and impulse control were varied. Cognition was grossly intact in terms of immediate, recent and remote memory functioning. Attention and concentration were normal. Social Security Administration records from June 2013 show that the Veteran was living with a friend, and cooked and prepared meals. He cleaned the house and did laundry, shopped for household needs, continued to fish by himself but did not participate in social activities. He indicated that he did not bathe as often as he should, and did not care about how he dressed. Testing showed some memory limitations, but overall no significant limitations were noted. In absence of evidence of 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place, or similar symptomatology of such frequency, duration, or severity, the Board finds that the criteria for a 100 percent rating have not been demonstrated. There is no evidence of memory loss for names of close relatives, or his own name. The Veteran has not been found to be disoriented. The evidence does not show persistent delusions or hallucinations, grossly inappropriate behavior or gross impairment in communication. His thought processes have not demonstrated gross impairment. Rather, he was able to take care of himself, cook and clean, maintain a relationship with a girlfriend, interact with his grandchildren, and showed no consistent deficit of memory or hallucinations. In an October 2017 VA treatment note, the Veteran reported that he was involved with a volunteer firefighting department. Therefore, the Board must find that the evidence does not more nearly approximate the criteria for a rating of 100 percent from February 1, 2013. In a July 2015 statement submitted in tandem with the Veteran’s substantive appeal, his attorney asserted that the Veteran’s treatment records showed the criteria for an increased rating had been met, indicating that the Veteran had been assigned low Global Assessment of Functioning (GAF) scores. The GAF was a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). Clinicians dealing with mental health issues currently use the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Given that the appeal was not certified to the Board until 2018, the DSM-5 applies. See 80 Fed. Reg. 14308 (Mar. 19, 2015) (DSM-5 applies to claims received by VA or pending before the agency of original jurisdiction on or after August 4, 2014). The United States Court of Appeals for Veterans Claims (Court) has noted that the DSM-5 eliminated GAF scores because of their conceptual lack of clarity and questionable psychometrics in routine practice, and further stated that an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. The Court explained symptoms should be the primary focus when assigning a rating for a psychiatric disorder and clarified that the use of numerical GAF scores as a shortcut for gauging psychiatric impairment would be error. Further noted was that the adequacy of medical examinations has never depended upon the use or inclusion of GAF scores. Golden v. Shulkin, 29 Vet. App. 221 (2018). Given the above, the Board finds the GAF scores in this case lack any probative value and as a result will not be further discussed. The attorney also specifically noted a single entry in the Veteran’s VA treatment notes, dated July 10, 2014, in which his treating physician indicated that the Veteran’s interpersonal relations were “almost nonexistent” due to medical problems, both mental and physical. The Board notes that an inability to establish and maintain effective relationships is one of the criteria for the Veteran’s currently-assigned 70 percent disability rating. The evidence simply does not establish that the Veteran’s PTSD is productive of impairment that more closely approximates the total impairment required for a rating in excess of 70 percent at any time during the appeal period. See Fenderson supra. The Board has fully considered the lay statements of record, which are competent insofar as they relate to observable symptoms of a psychiatric disability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). By pursuing this appeal, the Veteran and his attorney are asserting that his psychiatric symptoms meet the criteria for a 100 percent rating. However, the specific criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As such, the lay assertions made by the Veteran and his attorney are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating pursuant to the applicable criteria. The Board notes that the Veteran is not employed, which suggests a total occupational impairment, and has been granted a TDIU effective February 1, 2013. However, a disability rating of 100 percent is only warranted for a psychiatric disability when there exists both total social, and total occupational, impairment. Such has not been shown in this case, as the Veteran is not experiencing total social impairment, and no examiner tasked with evaluating him has found such. The Board, as well, finds no evidence of such in the record. Therefore, it concludes the criteria for a 100 percent rating for PTSD have not been met. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran’s own statements, as well as VA treatment records and examinations, clearly indicate that the symptoms warranting a 100 percent rating have not been met in this case. Based on this information, a rating in excess of 70 percent is denied. In reaching its conclusions herein, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for an increased rating, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.