Citation Nr: 21004968 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-17 902 DATE: January 28, 2021 ORDER Entitlement to an increased disability rating for post-traumatic stress disorder with sleep impairment (PTSD) in excess of 50 percent prior to September 28, 2015, is denied. FINDING OF FACT PTSD was not manifested by occupational and social impairment with deficiencies in most areas prior to September 28, 2015. CONCLUSION OF LAW The criteria for an increased disability rating for PTSD in excess of 50 percent prior to September 28, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1967 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) following a September 2020 order of the United States Court of Appeals for Veterans Claims (Court), which granted a joint motion for partial remand (JMPR) entered by the Veteran and the Secretary of Veterans Affairs (parties). The JMPR vacated portions of an October 2019 Board decision that denied entitlement to an increased rating for PTSD in excess of 50 percent prior to September 28, 2015. The JMPR states that remand was warranted because the Board erred by failing to provide an adequate statement of reasons or bases for the denial. Specifically, the Board failed to consider favorable evidence of record that may support the Veteran’s claim, which the JMPR indicated to be the Veteran’s reports of hallucinations in 2010 to 2011. In the interest of judicial economy, the Board will focus the current analysis on the deficiencies identified within the parties’ JMPR and incorporates all other facts and analysis of the vacated Board decision by reference. See generally Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). The Veteran has alleged that he experienced a range of psychiatric symptoms resulting from PTSD during the relevant period, including anger, irritability, social isolation, anxiety, sleep difficulties, nightmares, flashbacks, hallucinations, and concentration and memory deficits. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. The Rating Schedule 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). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Court has noted that VA amended the portion of the rating schedule dealing with mental disorders to remove the outdated references to the DSM-IV and replaced them with references to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See Golden v. Shulkin, No. 16-1208, 29 Vet. App. 221 at 224 (2018) citing 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The Court noted that VA subsequently adopted the final rule, without change, and clarified that the final rule applied to claims filed after August 4, 2014. Id. However, the Veteran's claim was received and originally certified for appeal before August 4, 2014, and, as a result, the DSM-IV applies. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities, including PTSD: A 50 percent disability rating is warranted when there is 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. A 70 percent rating is warranted where there is 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas," i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 11718; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must 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 Board must also "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 examination." Id. A Global Assessment of Functioning (GAF) score is a quantifiable assessment of overall functioning used by mental health clinicians that reflects an individual's "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (both citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32 (1994)). The Veteran's records include evaluations based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes GAF scores. The Board notes that the use of the GAF scale has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fifth edition, p. 16 (2013). However, as noted above, the DSM-IV is applicable in this case and was in use during portions of the appeal period when relevant medical entries of record were made. The Court has held that the use of GAF scores to assign disability ratings in instances where the DSM-5 applies, is inappropriate. See Golden v. Shulkin, 29 Vet. App. 221 (2018). However, the Court acknowledged that the Secretary did not intend the provisions of this final rule to apply to claims that were pending before the Board (certified for appeal) on or before August 4, 2014. Id. The current claim was certified for appeal to the Board prior to August 2014, therefore, the GAF scores assigned remain relevant for consideration in this appeal. GAF scores ranging between 61 and 70 reflect 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, and has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, p. 46 (1994). Scores ranging from 51 to 60 reflect more 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). Id. at p. 47. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A GAF score ranging from 31-40 reflects some impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 50 percent for PTSD prior to September 28, 2015. The reasons follow. As to the issues raised in the JMPR, the Board acknowledges that the Veteran reported experiencing combat-related hallucinations during psychiatric evaluations in March and August of 2010. In March 2010, the Veteran reported experiencing visual hallucinations of a fallen servicemember. The Veteran stated that this had been happening 1 to 2 times every couple of weeks for “quite a few years,” but that he had never said anything about it. Similarly, the Veteran reported auditory hallucinations of a voice calling his name during treatment in May 2010 and August 2011. Additionally, the Veteran’s representative has pointed to some low GAF scores of record, including a GAF score of 45 noted at the above March 2010 evaluation, as well as a GAF scores of 48 noted in July 2012, to support the Veteran’s claim of entitlement to an increased rating in excess of 70 percent. The Veteran underwent a VA examination in November 2010. He reported being married to his third wife for the past 16 years and having a good relationship with his children. He reported that he last worked in 2001, noting that was injured on the job and given a desk job that he hated, so he quit. He reported working part-time as a notary thereafter. Examination revealed that he was clean and casually dressed, fully oriented, and with clear speech, appropriate affect, neutral mood, normal thought process and content, no delusions, intact judgment, no hallucinations, no obsessional rituals, no suicidal thoughts, and good impulse control. The examiner noted that the Veteran has anger and irritability when stressed over a situation that he cannot control and that he experiences concentration difficulties, trouble sleeping, increased vigilance at night, and difficulty implementing stress management behaviors. In the November 2010 VA examination report, when asked which of the following best summarized the Veteran’s level of occupational and social impairment, the examiner checked occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is the level of severity described under a 30 percent rating. While the adjudicator makes the determination of what evaluation is warranted for the service-connected PTSD, the examiner’s conclusion that the Veteran’s PTSD was summarized best by the criteria described under the 30 percent rating is evidence against a finding that the Veteran’s psychiatric disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood to warrant a 70 percent rating or higher. Treatment records throughout the relevant period document that the Veteran had recurrent symptoms of anxiety, irritability, and sleep difficulties with nightmares and intrusive thoughts, and he was described at times as distractible. However, the mental status examinations of record do not show decreased functioning commensurate with the criteria for a 70 percent disability evaluation. For example, examination findings consistently show the Veteran was fully alert and oriented with a logical and goal-oriented thought process, and that he was cooperative with fair insight and judgment, and no signs of psychosis or delusional thought. He also consistently denied suicidal ideation. Treatment notes prior to September 2015 further indicated the Veteran to be independent in activities of daily living, with positive family dynamics, positive use of leisure time/hobbies, and no learning barriers. This is evidence against deficiencies in judgment, thinking, family relations, and mood. There is affirmative evidence that the Veteran is able to establish and maintain effective relationships. The preponderance of the evidence is against a finding that the Veteran’s overall symptoms rise to the level of severity of the symptoms that fall under the 70 percent rating. The preponderance of the evidence is against the Veteran requiring more than periodic routine treatment with no inpatient psychiatric hospitalizations or urgent care visits. The Veteran continued to work part time as a notary/real estate closing agent until his reported retirement in 2014 due to increased functional difficulties, although the record does not indicate significant exacerbations or decreased functioning relating to the Veteran’s PTSD at that time or prior to September 2015. These findings do not demonstrate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, as contemplated by the criteria for a 70 percent evaluation. As to the low GAF scores pointed out by the Veteran’s representative, GAF scores are of inherently limited probative value due to the reasons noted above and tend to reflect a veteran’s status at a specific moment in time, as opposed to functioning over an extended period. However, evidence from examinations over the course of the appeal period more often reflect higher GAF scores ranging 50 to 55, which reflect more moderate symptomology than alleged by the Veteran, and which are contemplated by the Veteran’s 50 percent rating. Such assessments are noted in May 2010, August 2010, October 2010, November 2010, March 2011, May 2011, August 2011, January 2012, April 2013, July 2013, and November 2013. Furthermore, these assessments were accompanied by the generally unremarkable mental status examination findings noted above, which do not demonstrate more than moderate symptomology or examples of decreased functioning associated with GAF criteria for scores of 50 or below, such as suicidal ideation, severe obsessional rituals, frequent shoplifting, or any serious impairment in social, occupational, or school functioning (e.g., no friends, or an inability to keep a job). Due to the inherent problems associated with GAF scores, as discussed above, the objective findings on mental status examination noted by treating medical experts are found to be more probative for purposes of this decision. Although the Veteran is competent to report his observed symptoms, the Veteran’s allegations regarding the frequency of his hallucinations is undermined by the recurrent findings on mental status examination, which are predominantly absent of findings or reports of hallucinations. The Veteran indicated in March 2010 that he was experiencing hallucinations on approximately a weekly basis. However, except as noted above, the record predominantly contains mental status examinations in which hallucinations were absent or denied. Such dates include May 2010, November 2010, August 2011, November 2011, January 2012, July 2012, August 2012, April 2013, July 2013, November 2013, February 2014, April 2014, July 2014, and February 2015, which cover a period of almost five years. The record further reflects regular findings of no psychotic or delusional symptoms. These clinical findings are noted by medical professionals and include the Veteran’s concurrent reporting of symptoms, which the Board finds are more credible than the Veteran’s allegations of regular hallucinations. To the extent that the Veteran’s hallucinations may have sharply decreased in frequency following his March 2010 report, the evidence does not demonstrate that these hallucinations occurred frequently or in such severity as to warrant an increased disability rating prior to September 2015, for the reasons discussed herein. This is supported by the November 2011 VA examination report submitted in the same year that the Veteran began to report symptoms of hallucinations. While hallucinations are noted under the criteria for a 100 percent evaluation, the Veteran’s overall disability picture did not demonstrate total social and occupational impairment during the relevant period, as evidenced by his continued part-time work in a skilled occupation, positive family relationships, and consistent assessments of being cooperative with normal behavior on examination. For all the reasons discussed herein, the preponderance of the evidence is against a higher level of impairment due to his PTSD or symptoms of a severity or frequency to support a 70 percent rating prior to September 28, 2015. Accordingly, the Board concludes that a rating in excess of 50 percent prior to September 28, 2015 for PTSD is not warranted. As the preponderance of the evidence is against the claim, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, Associate Counsel 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.