Citation Nr: 1013383 Decision Date: 04/08/10 Archive Date: 04/29/10 DOCKET NO. 08-25 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Robben, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1960 to October 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part granted service connection for PTSD with a 10 percent initial rating assigned effective May 16, 2006. During the appeal, the RO issued a July 2007 rating decision which granted an increased initial rating of 30 percent effective May 16, 2006. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher initial evaluation for PTSD remains before the Board. The Veteran provided testimony at a Board personal hearing before the undersigned Acting Veterans Law Judge in January 2010 in Nashville, Tennessee. A transcript of that hearing is of record. FINDING OF FACT The Veteran's PTSD has for the entire initial rating period manifested occupational and social impairment that most nearly approximates reduced reliability and productivity due to symptoms such as panic attacks more than once a week, impairment of short-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective social relationships without deficiencies in most of the areas of work, school, family, judgment, and thinking. CONCLUSION OF LAW The criteria for an initial rating of 50 percent for PTSD have been met for the entire initial rating period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in an April 2008 letter, the Veteran was provided with additional notice consistent with the VCAA and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2009). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Additionally, the Veteran was provided VA examinations in June 2006 and April 2009 for PTSD. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Disability Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2009). A rating of 30 percent is warranted for PTSD if 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating, may be 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); and inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular evaluation contemplates 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, Diagnostic Code 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 41-50 indicates "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 of 51-60 indicates "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. A GAF score of 61-70 indicates "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 list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The U.S. Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Initial Rating of PTSD After reviewing the evidence, the Board finds that the Veteran has endorsed symptoms that more nearly approximate a 50 percent initial disability rating for PTSD for the entire initial rating period. The evidence of record, including two VA examinations conducted in June 2006 and April 2009 and the Veteran's testimony before the Board in January 2010, established PTSD symptoms of increased irritability, outbursts of anger and violence, panic attacks up to four times per week, weekly nightmares, intrusive memories, flashbacks about twice per week, avoidance behavior, hypervigilance, and sleep disturbance. The Veteran described difficulty with establishing and maintaining relationships outside of his family and the tendency to isolate himself in his home. The June 2006 VA examiner diagnosed chronic, severe PTSD, and a GAF score of 45 was assigned. The April 2009 VA examiner also diagnosed chronic PTSD and a GAF score of 50 was assigned. The assigned GAF scores are indicative of serious impairment and are supported by the evidence of record. Resolving reasonable doubt in the Veteran's favor, the Board finds that a 50 percent disability rating under Diagnostic Code 9411 is warranted for PTSD for the entire initial rating period. 38 C.F.R. § 4.130. The Board further finds that the criterion for a 70 percent rating have not been met or more nearly approximated for any period during the initial rating appeal. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11- 14 (2001). Although the Veteran described difficulty with social relationships, he stated during the Board hearing that he had close relationships with his wife of over 13 years, his cousin, and his aunt and his relationships with his four children had been improving. He also stated that he regularly goes to the store and interacts with patrons there and attends church. The evidence of record showed no deficiencies in the area of judgment or thinking and no suicidal or homicidal ideations. The Veteran managed household finances with his wife and reported that he did not have difficulty with activities of daily living. Although he described difficulties with relationships at work, he testified that he maintained employment without any major disciplinary action until he retired. Therefore, the evidence of record does not establish deficiencies in most of the areas needed for a 70 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Board notes that VA Medical Center (VAMC) treatment records from August 2006 to May 2007 showed that the Veteran was consistently given a GAF score of 65 and he reported improving symptoms. However, his symptoms began to increase in severity, with increasing nightmares, intrusive memories, and irritability after that point. A GAF score of 58 assigned in March 2008 and a GAF score of 55 assigned in July 2008, culminating in the April 2009 VA examination described above. While his GAF scores improved, the Veteran contends that his PTSD symptoms have been severe and have warranted a higher initial rating throughout this initial rating appeal. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 50 percent rating have been met throughout the initial rating appeal. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.21. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the rating criteria contemplate the symptomatology and impairment due to the Veteran's PTSD disability. The Veteran's PTSD is manifested by symptoms and impairments such as impairment in social functioning, anxiety, panic attacks, sleep impairment, depressed mood, and nightmares. These manifestations are specifically contemplated in the rating criteria, which also contemplate not just these psychiatric symptoms like or similar to these. The Board finds that the rating criteria are therefore adequate to evaluate the Veteran's PTSD disability. Referral for consideration of extraschedular rating is, therefore, not warranted. ORDER An initial rating of 50 percent for PTSD is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs