Citation Nr: 1823990	
Decision Date: 04/19/18    Archive Date: 04/26/18

DOCKET NO.  09-37 775	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Byron L. Dinkla, Agent


ATTORNEY FOR THE BOARD

T. Berry, Counsel



INTRODUCTION

The Veteran served on active duty from January 2003 to February 2008.  His awards and decorations include the Army Commendation Medal with "V" Device.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

The Board previously remanded this matter in May 2014, April 2016, and February 2017 for additional development.  The requested actions have been completed and the claim is once again before the Board. 

The Board notes that mail sent to the Veteran's representative was returned as undeliverable.  This is referred to the RO for appropriate action.


FINDING OF FACT

Throughout the appeal, the Veteran's PTSD has been manifested by occupational and social impairment due to depressed mood, interruptions in sleep, irritability, and tendency towards isolation, however, the preponderance of the evidence shows that the disability is not productive of occupational and social impairment, with deficiencies in most areas.


CONCLUSION OF LAW

The criteria are met for an initial disability rating of 50 percent, but no higher, for PTSD.  38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.130, Diagnostic Code (DC) 9411 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking an initial rating in excess of 30 percent for his service connected PTSD.  

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); Hart v. Mansfield, 21 Vet. App. 505 (2008).

Here, the Veteran's PTSD is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411.  When rating psychiatric disorders, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  

Nevertheless, under the General Rating Formula, a 30-percent rating is appropriate 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).  38 C.F.R. § 4.130.  

The criteria for a 50-percent rating requires 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. 

The criteria for a 70-percent rating are: 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. 

The criteria for a 100-percent rating are: 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. 

In evaluating the evidence, the Board also considers the various Global Assessment of Functioning (GAF) scores that clinicians have assigned.  The GAF is 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 (4th ed. 1994) (DSM-IV).  While the GAF scale was removed from the DSM-5, the GAF score and interpretations of the score are important considerations in the rating of a psychiatric disability under the DSM-IV.  Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). VA implemented DSM-5, effective August 4, 2014, and determined that the DSM-5 applies to claims certified to the Board on and after August 4, 2014.  See Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093-94 (Aug. 4, 2014).  As the Veteran's increased rating claim was originally certified to the Board in February 2010, the DSM-IV is applicable to this case.

A GAF score of 51-60 indicates "[m]oderate 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.  

A GAF score of 61-70 indicates "[s]ome 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."  Id.

The Veteran was initially examined by VA in September 2008 in connection with his claim for service connection.  At that time, the Veteran reported experiencing the following symptoms: regular intrusive recollections of events; poor memory; avoidance techniques; a decreased interest in outside activities; difficulty getting close to others; disturbance in sleep; marked hypervigilance; and, depressed and anxious mood.  He denied feelings of hopelessness or suicidal ideation, and there was no evidence of manic or psychotic symptoms.  The mental status examination showed the Veteran's speech was of normal form and rate, and his affect was blunted.  The examiner noted there were no hallucinations or delusions, and no suicidal or homicidal ideations.  The examiner ultimately concluded the Veteran's PTSD caused a moderate amount of psychosocial dysfunction and assigned a GAF score of 55, which is indicative of moderate symptoms.  

The Veteran was reexamined in August 2014.  The examiner noted the same symptoms as reported in September 2008, and indicated the Veteran is taking medication for his PTSD.  The examiner concluded the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  It was further noted the Veteran's PTSD does not prevent him from sustaining gainful employment.  

In an October 2014 statement, the Veteran reported that the August 2014 VA examiner failed to accurately report his psychiatric symptoms.  The Veteran states that he reported homicidal ideation and plan, as well as hearing whispers telling him what to do.  Accordingly, in April 2016, the Board determined an additional remand was warranted so the Veteran could be afforded a new VA examination to specifically consider his reported symptoms as noted above. 

As such, the Veteran was again scheduled for a VA examination in May 2016.  The symptoms reported by the Veteran during this examination are reflective of those noted during the previous September 2008 and August 2014 examinations.  During the mental status examination, it was noted the Veteran's hygiene and grooming were good.  His mood was depressed, with appropriate affect.  Of note, the Veteran denied any current auditory or visual hallucinations, and current suicidal or homicidal ideations, intents, or plans.  He was alert and oriented to all spheres, with organized and goal directed thought processed.  The examiner also noted there was no evidence of any paranoid delusions.  The Veteran's short and long-term memory was intact, and no cognitive deficits elicited.  Again, the May 2016 VA examiner failed to consider the October 2014 statement from the Veteran.  The Veteran was consequently scheduled for a new VA examination in July 2017.  

The July 2017 VA examiner noted that the Veteran endorsed any and all symptoms and criteria for PTSD, with exaggerated symptom claims.  However, it was also noted that the Veteran has not received any treatment since 2014 as he has failed to appear for his appointments at the VA medical center.  Specifically, regarding the prior statements by the Veteran of experiencing homicidal ideation and plan and hearing whispers, the VA examiner noted there was no documented evidence of any psychosis or treatment in his VA records or prior VA examinations.  Further, there was no evidence of psychosis during the July 2017 examination.  As such, the examiner determined the Veteran's PTSD is characterized by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  A GAF score of 61 to 70 was assigned, which is indicative of mild symptoms. 

The claims file also contains the VA mental health treatment records dated through 2016.  The treatment records are reflective of the symptoms already discussed concerning the severity of the Veteran's PTSD in his multiple VA examinations, such as depressed mood, interruptions in sleep, irritability, and tendency towards isolation.  These records do not contain any objective indication that the Veteran suffers from suicidal or homicidal ideations, panic attacks, delusions, or hallucinations of any kind, despite the Veteran's statement to the contrary. 

Following a review of the lay and medical evidence, the Board concludes that the Veteran's PTSD most closely approximates the criteria for a 50-percent rating throughout the appeal.  In reaching this determination, the Board finds his PTSD has been manifested by occupational and social impairment due to depressed mood, interruptions in sleep, irritability, and tendency towards isolation.  These symptoms have been consistently reported by the Veteran throughout the pendency of his appeal.  In reaching this decision, the Board has also considered the Veteran's GAF scores.  The Board notes the Veteran's lowest GAF score was 55, which is indicative of moderate symptoms.  

The Board notes that the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment.  Id. at 443.  When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).  

The Board further finds that the preponderance of the evidence is against an evaluation in excess of 50 percent since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record during the appeal period.  The evidence does not show that the Veteran has occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: 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.  In fact, he has repeatedly denied the majority of the symptoms above required for the higher 70 or 100-percent ratings.  The only exception to this is the October 2014 report by the Veteran that he has experienced homicidal ideation and plan, as well as hearing whispers.  However, during the May 2016 VA examination, the Veteran specifically denied any current auditory or visual hallucinations, and current suicidal or homicidal ideations, intents, or plans.  Further, the July 2017 VA examiner specifically considered the Veteran's statement and noted exaggeration in the Veteran's reporting of his symptoms, as well as the absence of any kind of psychosis noted in the record.

In reaching the above conclusions, the Board has not overlooked the Veteran's and other lay statements found in the record.  In this regard, the Veteran and lay witnesses are credible to report on what they have seen and how the Veteran acts/ feels.  The Veteran is also certainly competent to report how he believes his PTSD has affected his life, including describing his symptoms.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  However, the Board finds more competent and credible the medical opinions provided by the VA examiners, as discussed above, in rendering a decision as to the severity of the Veteran's PTSD based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his several VA examinations conducted throughout the appeals period.

As the preponderance of the evidence is against the Veteran's claim in excess of the currently assigned 50-percent rating, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Subject to the law and regulations governing payment of monetary benefits, an initial rating of 50 percent for PTSD is granted.





____________________________________________
YVETTE R. WHITE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs



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