Citation Nr: 18132368
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 12-06 126
DATE:	September 6, 2018
ORDER
Entitlement to a disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD) prior to November 1, 2014, is denied. 
Entitlement to a disability rating in excess of 70 percent for PTSD beginning on November 1, 2014, is denied. 
FINDINGS OF FACT
1. Prior to November 1, 2014, the Veteran’s PTSD was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; it has not been productive of occupational and social impairment which most nearly approximates reduced reliability and productivity. 
2. Beginning on November 1, 2014, the Veteran’s PTSD has been productive of occupational and social impairment with deficiencies in most areas; it has not been productive of total occupational and social impairment. 
CONCLUSIONS OF LAW
1. For the period prior to November 1, 2014, the criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018).
2. For the period beginning on November 1, 2014, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had honorable active duty service in the United States Marine Corps from June 1967 to August 1969.  Among other commendations, the Veteran received the Combat Action Ribbon for service in Vietnam.  
In September 2013, the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing; a transcript of that hearing is of record
In a November 2014 rating decision, the RO assigned a temporary 100 percent evaluation from September 29, 2014, to October 31, 2014, due to the Veteran’s hospitalization for PTSD treatment. The temporary rating is not on appeal and will not be addressed by the Board. 
The Board notes that when this case was previously before the Board in June 2015, the Board inferred a claim of TDIU as part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2016, the Veteran withdrew his claim for a total disability rating based on individual unemployability (TDIU). In October 2017, the Veteran filed a claim for TDIU, and in a January 2018 rating decision, the RO granted TDIU, effective October 31, 2017. The Veteran did not appeal the effective date assigned for the TDIU. Therefore, entitlement to TDIU prior to October 31, 2017, is not before the Board. 
The Board notes that the issue of entitlement to a waiver of overpayment, to include the issue of validity of a debt, is the subject of a separate decision. See BVA Directive 8430, Board of Veterans’ Appeals, Decision Preparation and Processing, 14(c)(10)(a)(3) (providing that because they differ from issues so greatly, separate decisions shall be issued in certain cases in order to produce more understandable decision documents). 
Entitlement to a higher disability rating for PTSD, rated as 30 percent prior to November 1, 2014, and 70 percent thereafter. 
Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018).
At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.
The Veteran’s service-connected psychiatric disorder is currently rated as 30 percent disabling prior to November 1, 2014, and 70 percent thereafter pursuant to the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, which is included under the General Rating Formula for Rating Mental Disorders. 38 C.F.R. § 4.130.
According to the General Rating Formula for Rating Mental Disorders, a 30 percent disability rating is warranted 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, and recent events. 38 C.F.R. § 4.130, Diagnostic Code 9411.
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; and difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent disability rating is warranted when 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 work-like setting); and inability to establish and maintain effective relationships. Id.
The maximum 100 percent disability rating is warranted when 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; and memory loss for names of close relatives, own occupation, or own name. Id.
The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather 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). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s PTSD that affect the level of occupational and social impairment, including, if applicable, those identified in Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) or the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-5).
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.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally reflects that a person is functioning pretty well, and has some meaningful interpersonal relationships. DSM-IV, at 46. A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. Id. A GAF score of 41-50 is assigned where there are serious symptoms, for example, suicidal ideation, severe obsessional rituals, or any serious impairment in social, occupational, or school functioning, for example, no friends, inability to keep a job. Id.
Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record to this time period and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter, 8 Vet. App. at 242. Accordingly, an examiner’s classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered, but is not determinative of the percentage VA disability rating to be assigned. The percentage evaluation is to be based on all of the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126 (2018); VAOPGCREC 10-95, 60 Fed. Reg. 43186 (1995).
After a review of all the evidence of record, the Board finds that the weight of the competent, credible, and probative evidence of record does not support a rating greater than 30 percent prior to November 1, 2014. Throughout this period, the Veteran’s psychiatric symptoms predominantly included moderately severe nightmares, fear of confined spaces, anger, moderate sleep impairment, mild to moderate impairment of short term memory, mild to moderate panic attacks that occurred infrequently, moderate depression, mild to moderate anxiety, hypervigilance, irritability, rage, and avoidance. See, e.g., August 2010 VA examination report, March 2011 VA examination report, and March 2013 VA examination report.  The Board acknowledges the August 2010 VA examiner’s finding that the Veteran displayed obsessive or ritualistic behavior, however, the examiner also found that the obsessive ritualistic behavior did not cause any clinical impairment. Therefore, the Board finds that any obsessive behaviors that the Veteran experienced was not of sufficient severity to warrant a higher rating. Moreover, mental status examinations consistently showed that the Veteran displayed good hygiene and grooming, good eye contact, normal thought process, good communication, full orientation, normal speech, and restricted affect. There was no evidence of delusions, hallucinations, inappropriate behavior, suicidal thoughts, or homicidal thoughts. He also maintained minimum personal hygiene and completed activities of daily living. Additionally, GAF scores of 65-70 were assigned during the appeal period, indicating that his psychiatric symptoms caused only mild impairment and that he was functioning pretty well. Also, the August 2010 and March 2011 VA examiners found that his psychiatric symptoms caused occupational and social impairment due to transient or mild symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The March 2013 VA examiner found that his psychiatric symptoms 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.  Accordingly, the Board finds that for the period prior to November 1, 2014, the Veteran was not shown to have 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.
For the period beginning on November 1, 2014, the Veteran has not shown to have 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; and memory loss for names of close relatives, own occupation, or own name. The evidence shows that the Veteran was admitted to a PTSD residential program from September 29, 2014 to October 30, 2014. During his residential treatment he worked with mental health professionals to write out and read his traumas. Following his discharge, he started to receive mental health treatment on an outpatient basis and to take psychiatric medication. His predominant symptoms during this period included sleep impairment, mild anxiety, depressed mood, panic attacks that occurred weekly or less often, mild memory loss, difficulty in establishing and maintaining work and social relationships, difficulty in adapting to stressful circumstances, poor concentration, sadness, loss of appetite, fatigue, guilt, hypervigilance, and irritability.  At his October 2016 VA examination, the Veteran reported that he held a gun up to himself three weeks ago, but he did not have any suicidal ideations at the time of the examination. Subsequent VA treatment records indicated that the Veteran did not have suicidal ideation. Mental status examinations revealed full orientation, appropriate eye contact, acceptable hygiene, normal speech, appropriate affect, depressed or anxious mood, linear thought processes, goal-directed associations, and intact judgment. There were no clear indications of obsessions, compulsions, manic symptoms, delusions, or hallucinations. Furthermore, the October 2016 VA examiner found that his PTSD caused occupational and social impairment with reduced reliability and productivity.  
With regard to his social impairment, the medical evidence shows that he did not want to be around others when he felt depressed or anxious.  However, the Veteran maintained a relationship with his wife for more than 30 years. He described a shaky relationship with his wife, a strained relationship with two of his six children, and a good relationship with his other children. He socialized at church, participated in a golf league, planned to join a men’s group, volunteered at the VA, and maintained contact with members of his military unit. 
With regard to his occupational impairment, the Veteran maintained fulltime employment as a welder for the same company for more than 30 years before he retired in June 2014. He missed about ten days of work per year when he was overwhelmed by work pressure. He expressed difficulty getting along with his supervisor and his co-workers due to his anger problems. He reported that he had a new supervisor who wasn’t as understanding as his previous supervisor regarding his anger problems. A September 2013 letter from the Veteran’s supervisor noted that his work performance was adequate, but his temper and concentration issues were a hindrance and disturbance in the workplace. In September 2013, he testified that he had anger outbursts at work and that he once threw a hammer at his coworker’s head, however, he was never formally reprimanded at work. 
Accordingly, the Board finds that the Veteran is not entitled to a higher rating for his service-connected PTSD. While the manifestations of his psychiatric disorder fluctuated throughout the appeal period, the symptoms have not more nearly approximated a 50 percent rating prior to November 1, 2014, or a 100 percent rating thereafter.   
Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to an evaluation in excess of 30 percent prior to November 1, 2014, and a rating in excess of 70 percent thereafter for PTSD must be denied.

 
B. MULLINS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. N. Nolley, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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