Citation Nr: 21025418 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 10-35 479 DATE: April 28, 2021 ISSUE Entitlement to a rating in excess of 30 percent, prior to January 20, 2018, and in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD). ORDER Entitlement to a 50 percent rating, but no higher, prior to January 20, 2018, for PTSD, is granted. Entitlement to a rating in excess of 70 percent, from January 20, 2018, for PTSD is denied. FINDINGS OF FACT 1. Prior to January 20, 2018, the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to symptoms of frequent demonstrations of lack of anger management; frequent episodes of difficulty sleeping; occasional bouts of hallucinations; bad dreams; memory loss; infrequent episodes of flashbacks and difficulty maintaining relationships. There was no 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 such as suicidal ideations, obsessional rituals which interfere with routine activities; or intermittent illogical speech. 2. From January 20, 2018, the Veteran’s PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to symptoms of frequent demonstrations of lack of anger management; frequent episodes of difficulty sleeping; occasional bouts of hallucinations; bad dreams; memory loss; infrequent episodes of flashbacks and difficulty maintaining relationships. There is no 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 such as suicidal ideations, obsessional rituals which interfere with routine activities; or intermittent illogical speech. 3. Total occupational and social impairment has not been demonstrated at any point during the period on appeal due to the service-connected PTSD due to such symptoms as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting himself or others; disorientation to time and place; memory loss for names of close relatives, own occupation or own name; persistent hallucinations or delusions; or inability to perform activities of daily living; or symptoms of a similar severity. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating, but no higher, prior to January 20, 2018, for PTSD were met. 38 U.S.C. § 1155, 5107, 7104; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for a rating in excess of 70 percent, from January 20, 2018, for PTSD have not been met or approximated. 38 U.S.C. § 1155, 5107, 7104; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1968 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran’s electronic claims folder. Entitlement to a rating in excess of 30 percent, prior to January 20, 2018, and in excess of 70 percent thereafter, for PTSD The Veteran contends that he is entitled to an increased rating for his PTSD because he can’t be around his grandchildren; he isolates himself and was even put out of a PTSD clinic. See Board Hearing Transcript, pp. 4-9. For the reasons explained below, the Board finds that a 50 percent rating is warranted, prior to January 20, 2018. Under 38 C.F.R. § 4.130, Diagnostic Codes 9411, a 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is assigned 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); inability to establish and maintain effective relationships. A 50 percent rating is assigned for 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. Although the 50 rating criteria contemplate deficiencies in “motivation or mood,” such deficiencies must be “due to” the symptoms listed for that rating level, “or others or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). That is, simply because this Veteran has depressed mood, and because the 50 percent level contemplates a deficiency in “mood” among other areas, does not mean his anxiety disorder rises to the 50 percent level. Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of mood impairment. The Board, instead, must look to the frequency, severity, and duration of the impairment. Global Assessment of Functioning (GAF) scores are 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); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32). GAF scores ranging from 51 to 60 reflect more moderate symptoms or moderate difficulty in social, occupational, or school functioning. Scores ranging from 41 to 50 reflect serious symptoms or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (incorporating by reference the VA’s adoption of the DSM-IV, for rating purposes). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The Board notes that an examiner’s classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. As the Veteran’s increased rating claim was originally certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores must be considered in light of the actual symptoms of the Veteran’s disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). 2006 VA mental health treatment records indicate that the Veteran suffered from symptoms of emotional withdrawal; interpersonal distancing; apathy; social withdrawal and irritability. He reported treatment at a Vet Center. In July 2007, the Veteran was afforded a VA PTSD examination where he reported anger issues, including experiencing road rage and getting into arguments on the job. He reported psychiatric treatment at a Vet Center. On examination, the examiner noted that the Veteran experienced flashbacks triggered by the smell of fireworks or gun smoke. The examiner found that he met the criteria for PTSD – mild to moderate. He was assigned at GAF score of 55. At an August 2007 VA psychology inpatient consultation, the Veteran reported receiving treatment at the Taylor St. Vet. Center and was referred to VAMC trauma services. The Veteran reported that he was willing to use the program to address his anger management issues. He was assigned a GAF score of 60. In May 2008, the Veteran was afforded VA PTSD examination where he reported a history of symptoms of anger management problems; increased depression; nightmares 2-3 times per week; and intrusive thoughts. He reported a strained relationship with his sons, but reported regular interactions with other family members and friends. He endorsed activities such as fishing, working out and attending sporting events. On examination, the examiner noted that the Veteran suffered from memory problems and seeing things that aren’t there in his peripheral vision. The Veteran denied any suicidal or homicidal ideations. He reported a sense of impending doom which causes him to be unable to work. The examiner noted that the Veteran’s PTSD severely affects his employment and relationships and moderately affects his activities of daily living; routine responsibilities; physical health and leisure activities and quality of life. The examiner assigned a GAF score of 44. In March 2011, the Veteran was afforded a VA PTSD examination where he reported that he was asked not to return to an outreach center for Veterans with PTSD. He reported that he believes it was because he was outspoken. He reported that he was frustrated with the VA process and had been attending church to get help. He questioned his wife’s fidelity to his side effects of his prostate cancer. He reported that one of his grandson’s lived with him and helped to relax him. Otherwise, he reported that he creates a lot of situations with his family because he is always frustrated and angry. He reported that he had a wonderful relationship with his older brother and people at church. He reported having verbal confrontations frequently with his wife, children and even people at the grocery store. The examiner noted that the Veteran experienced symptoms of depression on a daily basis; difficulty concentrating; impaired impulse control sleep impairment nightly; and memory loss. The examiner noted that the Veteran’s symptoms were moderate in severity and assigned a GAF score of 57. The Veteran was most recently afforded a VA examination in January 2018 where reported living with his wife, son and granddaughters. He reported having a strained relationship with his wife and 2 of his sons. He endorsed anger management issues and triggers with racial and political matters. The examiner opined that the Veteran suffered from occupational and social impairment with reduced reliability and productivity. Treatment records from Olney Counseling Center indicate that the Veteran experienced symptoms of memory problems and had marital problems. Based on the foregoing, the Board finds that a 50 percent rating, but no higher, is warranted prior to January 20, 2018. The Board further finds that a rating in excess of 70 percent is not warranted at any time. In that regard, the Board assigns probative value to the VA treatment records; VA examination reports and the Veteran’s lay statements. The Board credits the evidence which shows that the Veteran has frequent problems with managing his anger as demonstrated by his frequent discord with his wife, 2 of his sons, and bouts of road rage. There is also evidence that the Veteran’s impulse control is not well controlled as evidenced by his attack on the Vietnamese dry cleaner worker and road rage incidents. As noted above, the Board has considered the frequency, severity, and duration of the Veteran’s impairment in its analysis. His symptoms do not appear to be so severe as to limit him functioning on a daily basis, but do reduce his reliability and productivity. Although the Veteran appears to mostly keep to himself, he appears to be able to complete tasks inside and outside the home. He reported attending church regularly and going fishing. Although he testified at the Board hearing that he could not be around his grandchildren, he reported at the March 2011 VA examination report that being around his grandson relaxes him. He also testified that he was in attendance of one of his granddaughter’s wedding. At the January 2018 VA examination, he also reported that 2 of his granddaughters live with him. It is therefore apparent that the Veteran’s inability to interact with others is limited to some degree, but not absolute. There is also evidence that the Veteran’s other service-connected disabilities also contribute to the Veteran’s occupational and social impairment. Specifically, the Veteran’s lack of bowel and bladder control causes him to limit his interactions. The Board notes that although GAF scores are not the dispositive element, the Veteran’s scores have ranged in the 55-60 range which indicates moderate symptoms. Although the May 2008 VA examination report showed a GAF score of 44, this score appears to be aberration. Many of the symptoms the examiner noted were noted in other VA treatment or VA examination notes with higher assigned GAF scores. A score of 44 implies some impairment in reality and may have been related to the Veteran’s reports of seeing things in his peripheral vision. This reported symptom does not appear to frequently occur. Due to the low frequency and duration of what appears to be more severe symptoms, the Board finds that the Veteran’s overall symptoms equate to occupational and social impairment with reduced reliability and productivity most commonly illustrated by a 50 percent rating for the entire period on appeal. That being said, the Board finds at no time during the period on appeal did the Veteran demonstrate 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 to entitle him to a 70 percent rating. While the January 2018 examiner found the Veteran’s symptoms to rose to the level of a 50 percent rating, he was assigned a 70 percent rating, effective January 20, 2018. The Board will not disturb the 70 percent rating already in effect, from January 20, 2018. As noted above, many of the symptoms listed in the rating criteria for 30, 50 and 70 resemble one another. However, a careful look at the frequency, duration and severity of such symptoms is what is the distinguishing factor. Here, there is no doubt that the Veteran’s PTSD causes occupational and social impairment; however, as noted above, at best, his symptoms most resemble a 50 percent rating. The Veteran has had a history of suicidal ideations in the past (most prior ot the period on appeal) but they were few and far between. The 70 percent criteria requires evidence of moderately severe symptoms which impact the Veteran’s occupational and social functioning. Such evidence is not present here. There is evidence that the Veteran received treatment at a Vet Center; however, the Veteran did not provide authorization for the release of those records after being several opportunities to do so. The Board notes that “the duty to assist is not always a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran’s claims. In this case, the Veteran was provided with the opportunity to provide information that could have been helpful to his claim but declined to do so. Finally, the evidence of record does not reflect symptomatology of the Veteran’s PTSD that would meet the criteria for a rating of 100 percent at anytime during the appeal period. They evidence does not show total occupational and total 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.