Preliminary note about GAF Scores: Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014).
The Veteran in this case sought a PTSD rating greater than 70%.
In its decision the BVA noted VA examiners in April 2010, September 2010, and April 2012 relied on GAF Scores of 40,54, and 50, respectively, to assess the severity of the veteran's condition in their PTSD opinions. The BVA then directly discussed the role of GAF scores in its decision:
"While the Veteran's GAF scores have fluctuated over time, his lowest score assigned – 40 in May 2010 – is consistent with no greater impairment than that contemplated by the assigned 70 percent rating. In fact, the Veteran has also received GAF scores that would indicate only serious or moderate symptomatology."
Did the BVA err when it relied on GAF scores in rejecting a PTSD rating greater than 70%?
The Appellant argued that GAF scores are always relevant, but that the BVA should also dismiss them as always unreliable (se below)
The Secretary argued that GAF scores are always relevant in DSM-IV ratings cases, but the veteran was not prejudiced by reliance on GAF score in the PTSD opinions.
The CAVC held, that the BVA may not rely on the GAF score in any case where a PTSD rating uses DSM-V.
** This is not an effective binding precedent until the CAVC issues its mandate. If the Government does not seek reconsideration of the CAVC panel decision, full court review, or appeal the decision to the Federal Circuit Court of Appeals, the mandate will likely issue around May 2018. ***
The GAF score, or Global Assessment of Functionality, is a numerical assessment used by treating mental health physicians to assess the degree of severity of a patient's PTSD.
It's an arbitrary number, without any connection to objective criteria, consistency across patients, or reliability.
Think of it like this: if you were asked to rate your client's knee pain on a scale of 1 to 10, and that rating was then used to assign a disability percentage, your rating might accurately reflect the severity of the knee pain and it might not. Regardless, it is 100% subjective, and there is no possible way to verify, replicate or analyze it.
Same things with the GAF score - they may be 100% right, or they may be 0% right.
It cannot be disputed, however, that they are completely and unapologetically the subjective opinion of a particular doctor, a doctor whose calculation the veteran has no ability to explore.
Even if your client is rated under DSM-IV, and the BVA considers the GAF score, there are a lot of ways to challenge that reliance.
Given the subjectivity of a GAF score, it is my opinion that any PTSD opinion that relies on a GAF score without a fully and medically reasoned explanation for how the number was computed, and why it is objectively reliable, is inadequate on its face.
This position is reinforced by the idea that the rating for mental health conditions - and the adequacy of PTSD opinions which rate them - is based on a holistic assessment of the objective severity of the veteran's condition in a PTSD opinion.
Contact an appellate attorney at Attig | Steel if this applies to your BVA decision or CAVC appeal.
I read the briefs in this case, and I listened to oral arguments: even still, I struggled to understand the parties arguments and the need for a panel decision.
The Appellant struggled to articulate his position, and it came across as suggesting that the GAF score is always probative evidence of the severity of the medical condition, but that the BVA must always state that it should be afforded no weight as unreliable. (This is me characterizing what I heard in the argument - I may have completely missed the nuanced point the appellant was trying to make).
The Secretary argued that the GAF score was always probative evidence that must be considered. The Secretary seemed to argue that the prohibition against GAF scores in DSM-V was binding on VA PTSD examiners through the Duty to Assist, but not on the BVA. (I may not be giving the Secretary's argument the full thrust it deserves: I really struggled to understand the parties positions in this case).
I don't expect I'm alone in my struggle: I got the sense from the panel that the Court was expecting a very different presentation of the issue by the Appellant. Were this the Supreme Court, the panel might have issued an order retracting the submission to a panel as improvidently granted. Of course, this procedure doesn't exist at the Veterans Court.
The Court's decision feels somewhat advisory in nature, as the Court's key holding (that GAF scores do not apply in cases where the DSM-V applies) was not directly at issue in the case (at least as I read it).
I suspect that this decision is going to cause some confusion for practitioners at the BVA. (See Takeaway Point #1 for a possible path around this case at the VARO or Board of Veterans Appeals).
The Court's key holding and dicta was:
Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court holds that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.
* * * *
The Court does not hold that the Board commits prejudicial error every time the Board references GAF scores in a decision...
* * * *
The Court simply clarifies that, to the extent that the Board may have been tempted to use numerical GAF scores as a shortcut for gauging psychiatric impairment, such use would be error.
It's the "may have been" or "such use would be error" that is suggestive of an advisory type opinion.
Now, I could be completely wrong on this, and if so, I am willing to revise this post.
Maybe I missed the nuance in the facts, but DSM-V did not seem to be at issue in this case, as all the PTSD ratings were before August 2014.
Either way, in your challenges to PTSD opinions that rely on GAF scores, the best way to use this case is to argue it stands for the idea that if DSM-V applies, GAF may not be considered; if DSM-IV applies, the BVA may not use GAF scores as a shortcut to rating PTSD, and must provide reasons and bases for its reliance on any GAF scores.
But then, that was the law before the decision.
If you have any insight on this appeal, or the Court's decision, I would love to hear your thoughts: shoot me an email.
Link to the CAVC Panel Decision on the CAVC Website
Link to the BVA Decision on CAVC Website
CAVC Judge: Panel Decision (Precedential)
Judge Greenberg - Opinion Author - (link to bio on CAVC website)
Judge Coral W. Pietsch (link to bio on CAVC website)
Judge Michael P. Allen (link to bio on CAVC Website)
OGC Attorney: Sarah W. Fusina
Veteran Representation at CAVC: Ethan F. Maron, Lieberman & Mark
Board of Veterans Appeals Veterans Law Judge: Jacqueline E. Monroe
VA Regional Office: Columbia, South Carolina VARO
Vets’ Rep at BVA: Jeany Mark, Attorney
Date of BVA Decision: December 30, 2015
Date of CAVC Decision: February 23, 2018