Citation Nr: 1236812 Decision Date: 10/24/12 Archive Date: 11/05/12 DOCKET NO. 10-17 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for PTSD, evaluated as 10 percent disabling. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected psychiatric disorder is shown to have been manifested by symptoms that include irritability, depression, sleep difficulties, nightmares, hypervigilance, social isolation, and an exaggerated startle response; and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; but not occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial evaluation of 30 percent, and no more, for a psychiatric disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Codes 9400, 9434 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Initial Evaluation The Veteran asserts that he is entitled to increased initial evaluation for his service-connected PTSD. In September 2008, the RO granted service connection for PTSD, evaluated as 10 percent disabling, with an effective date of July 11, 2003. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). With regard to the history of the disability in issue, the Veteran's service reports show that he service in Vietnam for about 12 months as a medic with an airborne unit. His awards include the Combat Medical Badge, and the Bronze Star with a "V" device. As for the post-service medical evidence, private treatment report show that he was provided with Paxil beginning in 1997, and he was noted to be "very aggressive" in 1999. A December 2001 VA report noted depression and anxiety. Private reports dated in 2002 noted use of Paroxetine and Buspirone. A November 2002 VA examination report contained an Axis I diagnosis of depressive disorder NOS (not otherwise specified), and an Axis V diagnosis of a global assessment of functioning score of 85. See 38 C.F.R. § 4.1 (2011). Disability ratings are determined by applying the criteria set forth in 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.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7 . The RO has evaluated the Veteran's PTSD under 38 C.F.R. § 4.130, Diagnostic Codes (DCs) 9400-9434. See 38 C.F.R. § 4.27 (2011) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). This hyphenated diagnostic code may be read to indicate that a generalize anxiety disorder is the service-connected disorder, and it is rated as if the residual condition is major depressive disorder. Both DC 9400 and DC 9434 are rated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted for 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 continuous medication. A 30 percent rating is assigned 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 satisfactory, 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). Id. A 50 percent rating is warranted where the disorder is manifested by 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. Id. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). GAF scores ranging between 61 to 70 reflect some 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, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). Although some of the Veteran's recorded symptoms are not specifically provided for in the ratings schedule (e.g., such symptoms as nightmares), the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board first notes that the Veteran has been afforded several different psychiatric diagnoses, to include a personality disorder, and posttraumatic stress disorder (PTSD). When it is not possible to separate the effects of the service-connected condition and the nonservice-connected condition, VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, dictate that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, the Board can find no medical basis upon which to dissociate any psychiatric symptoms from the Veteran's service-connected disability, therefore all psychiatric symptoms are presumed to be due to his service-connected disability. Id. The Board finds that the criteria for an initial evaluation of 30 percent have been met. The Veteran's GAF scores of record range between 45 and 70, and they are evidence of mild to severe symptoms. See QRDC DSM-IV. The medical reports show that the Veteran has received a considerable amount of outpatient treatment for psychiatric symptoms, and that he has continuously required use of medications for control of his symptoms, to include use of Paxil, and (currently) Buspirone, and Sertraline (Zoloft). A statement from a private physician, G.G., M.D., dated in June 2006, notes moderate impairment, with occasionally severe impairment. A statement from a social worker at the Vet Center, received in April 2010, states that the Veteran has moderate symptoms with some difficulty in social and occupational functioning. There is some evidence of both auditory and visual hallucinations. See October 2009 VA progress note. The Board further notes that the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim, Mauerhan, and that the Veteran has consistently reported having such symptoms which are not listed at 38 C.F.R. § 4.130, such as anger, social avoidance, nightmares and flashbacks. See e.g., VA examination reports, dated in March 2005, February 2010, June 2011. Accordingly, the Board finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that the criteria for an initial 30 percent rating have been met. For the entire time period on appeal, an evaluation in excess of 30 percent is not warranted. The evidence is summarized as follows: VA progress notes, dated between 2003 and 2005, show a number of treatments for psychiatric symptoms. In July 2003, the Veteran complaints of symptoms that included depression, anger, aggression, and hostility towards others. He reported a good response to use of Paxil and Buspar in October 2003. These reports show that he denied suicidal or homicidal behavior, had normal speech, appropriate affect, good judgment and insight, and that there were no psychotic symptoms, delusions, audio or visual hallucinations, obsessions, or compulsions. The examiner noted that the Veteran had job stress, and difficulties getting along with others. A March 2005 VA examination report shows that the Veteran reported that he was working as a part-time substitute teacher. He reported symptoms that included sleep difficulties, nightmares once a month to every few months, flashbacks, an exaggerated startle response, some difficulty with concentration and memory, poor judgment, and avoidance behavior. He denied audio or visual hallucinations, paranoid thoughts, panic attacks, and anxiety attacks. No significant agoraphobia was reported. On examination, he was alert and oriented times three. Judgment was fair. The Axis I diagnoses were anxiety disorder not otherwise specified (NOS), and depressive disorder NOS. The Axis II diagnosis was personality disorder NOS. The Axis V diagnosis was a GAF score of 60. The examiner indicated that the Veteran did not have PTSD, that his main problems were anxiety and depression, and that his stress and anxiety symptoms were due to his personality disorder. Private treatment reports, dated between March and April of 2006, show three treatments for psychiatric symptoms. The Veteran reported symptoms that included avoidance behavior, hypervigilance, anxiety, and anger. On one occasion, he exhibited physiological changes after a helicopter flew over. On examination, memory, attention and concentration, and judgment and insight were good. Language was appropriate. There were no hallucinations. Speech was normal. The diagnosis was PTSD. VA progress notes, dated between 2007 and 2010, show a number of treatments for psychiatric symptoms. Reports, dated in September 2007 and June 2008, contain Axis I diagnoses of major depressive disorder, mild. On examination, affect, thought content, and speech were all unremarkable. Insight was fair and judgment was good. There were no auditory or visual hallucinations suicidal or homicidal ideations, obsessions, compulsions, or delusions. In June 2008, he denied any current or significant difficulties with depressed mood, appetite, memory, concentration, and sleep. These reports show that his medications included Buspirone and Paroxetine. In October 2009, the Veteran reported periodic auditory and visual hallucinations, described as shadowy movement in side vision. Affect was appropriate, and thinking was goal-directed. He was not delusional and did not have homicidal or suicidal thoughts. Reports from the Vet Center, dated between 2009 and 2010, include a statement from a social worker, received in April 2010, who states that the Veteran has been treated since June 2009. His symptoms were noted to include intrusive thoughts, flashbacks, nightmares, a quick temper, avoidance behavior, depression, anxiety, and memory impairment, and moderate symptoms with some difficulty in social and occupational functioning. Associated Vet Center reports, dated between June 2009 and May 2010, show treatment on a monthly basis, with disturbances in mood and affect, but normal speech, and no homicidal or suicidal ideation. A February 2010 VA examination report shows that the Veteran reported that he had flashbacks, nightmares, avoidance behaviors, detachment, anxiety, nightmares, irritability, anger, hypervigilance, depression, and sleep difficulties. He reported a past history of suicidal ideation without plan or intent, and no current plan. He denied panic attacks, audio or visual hallucinations, delusions, or paranoia. The report notes chronic, daily, mild symptoms. He reported that his marriage was fairly stable and that he had a good relationship with his three children. He stated that his treatment had been extremely beneficial, with good results after a recent change in his medication regime. He reported that he enjoyed playing golf. On examination, behavior was within normal limits. Functional and social impairment was characterized as mild to moderate; employment impairment was mild. Insight and judgment were good. Speech was normal. Thought processes were linear and thought content was unremarkable. There was no suicidal ideation or evidence of psychosis. There was no apparent difficulty with concentration. The Axis I diagnosis was PTSD. VA progress notes, dated between 2010 and May 2011, show treatments for psychiatric symptoms on about a monthly basis. These reports show that he had some mild anxiety, and that on examination, he was alert and oriented, with appropriate affect, and that thinking was goal-directed. He was not delusional and did not have homicidal or suicidal thoughts. Medications included Buspirone and Sertraline. A June 2011 VA examination report shows that the Veteran reported the following: he had lost 40 pounds since January due to a lack of appetite. He was still irritable, although his antidepressants were fairly effective. He had strange dreams, and depression and despondence at times. He had symptoms that included flashbacks, but no suicidal ideation. He had good relationships with family, a couple of good friends, and he attended church. He was partially retired in 2003, and fully retired for a year. He had not been unemployed or had to take time off from work due to mental health. He avoided shopping, but did chores. His depression had made making sales calls difficult. The examiner indicated he had episodic daily mild symptoms, that there were no hospitalizations, and that he was seen every two to three months for supportive therapy and medical management. The effect on employment was mild; there was no effect on social functioning. On examination, behavior was within normal limits. His medications were noted to be BuSpar and Zoloft, 100 milligrams each, daily. Behavior, speech, appearance, mood, affect, and cognitive functioning were normal/within normal limits. Memory, insight, and judgment were adequate. The Axis I diagnosis was major depression, mild. The examiner noted that there was no impairment in thought processes or communication, that the Veteran had mild impairment in employment functioning and no impairment in social functioning due to depression. The claims file includes two statements from the Veteran's spouse. She asserts that she has been married to the Veteran since prior to his service, and that upon return from Vietnam he displayed symptoms that included anger, aggressiveness, depression, and an exaggerated startle response. The Board finds that the criteria for an initial evaluation in excess of 30 percent have not been met. The Veteran does not have a history of hospitalization for psychiatric symptoms. There was no history of suicide attempts or assaultiveness, and there was no issue with substance abuse or alcohol use. The Veteran has reported that he had been married for 46 years, and that he had good relationships with his family, and a couple of good friends. See June 2011 VA examination report. The record of his GAF scores in VA progress notes shows scores of 45 (July 2003), 65 (October 2003), 60 (March 2005 and May 2005 VA examination reports), 60 (September 2007), 70 (June 2008), 65 (May and July of 2010), and 70 (June 2011). These are representative of mild to severe symptoms. See QRDC DSM-IV. However, the GAF score of 45 in July 2003 has never been repeated, nor is it accompanied by findings warranting a higher evaluation. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003). The remainder of the GAF scores are in the mild to moderate range. The medical reports show that there is no evidence of delusions, and there is no evidence to show a substantial impairment of thought processes, speech, judgment, insight, or more than a mild impairment of memory. Examiners have characterized his symptoms as no more that moderate, with several findings that they were mild. In addition, there is insufficient evidence of such symptoms as flattened affect; irregular speech; difficulty in understanding complex commands; impairment of short- and long-term memory; and impaired abstract thinking, nor are the other psychiatric symptoms shown to have resulted in such impairment. Accordingly, the Board finds that, overall, the evidence indicates that the Veteran's symptomatology is shown to have been representative of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and that the criteria for an initial evaluation in excess of 30 percent for a psychiatric disorder have not been met under DCs 9400-9434. In summary, the Veteran's symptoms are not shown to be sufficiently severe to have resulted in occupational and social impairment with reduced reliability and productivity, and the Board has determined that the preponderance of the evidence shows that the Veteran's psychiatric disorder more closely resembles the criteria for not more than an initial 30 percent rating. The Board therefore finds that the evidence does not show that the Veteran's symptoms are of such severity to approximate, or more nearly approximate, the criteria for an initial evaluation in excess of 30 percent under DC 9411. See 38 C.F.R. § 4.7. In deciding the Veteran's increased initial evaluation claim, the Board has considered the determinations in Fenderson, and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period, other than as noted. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period, other than as noted. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability in issue, such that an increased initial evaluation is warranted, other than as noted. To the extent that the Board has denied the claim, it has considered the benefit-of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. VCAA The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in October 2003 (regarding the claim for service connection). Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In any event, this appeal is based on a grant of service connection in September 2008. Where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled; no additional § 5103(a) notice is required. Dingess, 19 Vet. App. at 491, 493. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded three examinations. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER An initial evaluation of 30 percent, and no more, for service-connected psychiatric disorder is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs