Citation Nr: 0810400 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-13 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: R. J. Mahlin, Attorney-at-Law ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran had active military duty from April 1969 to April 1971. For service in the Republic of Vietnam, he was awarded the Combat Infantryman Badge, among others. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. That decision granted service connection for PTSD with an assigned 10 percent evaluation, and the veteran disagreed with the evaluation. The case is now ready for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been requested or obtained. 2. The veteran's PTSD is consistently shown on both private and VA examination to be mild in nature, there is no evidence of significant impairment in either industrial or social relationships, and the two clinical examinations on file more nearly reflect the criteria for the currently assigned 10 percent evaluation, than for the next higher 30 percent evaluation. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Law and Regulation: VCAA and regulations implementing this liberalizing legislation are applicable to the veteran's claim. VCAA requires VA to notify claimants of the evidence necessary to substantiate their claims, and to make reasonable efforts to assist claimants in obtaining such evidence. The veteran was provided formal VCAA notice in December 2005, prior to the issuance of the rating decision now on appeal from March 2006. When the veteran thereafter disagreed with the assigned evaluation, the veteran was provided VCAA notice with respect to an increased evaluation in March 2006. The evidence reveals that the veteran has never sought or required treatment for service-connected PTSD, and the records on file of a private psychological evaluation in June 2005 and a VA psychiatric examination in May 2006 are both on file and are the only evidence available relevant to the pending claim. Accordingly, all known relevant evidence has been collected for review and VCAA is satisfied. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; Quartuccio v. Principi, 16 Vet. App 183 (2002). The Board notes that the US Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, No. 05-0355 US Vet. App. Jan 30, 2008) clarified VA's notice obligations in increased rating claims. The instant appeal originates, however, from the grant of service connection for the disorder at issue and, consequently, Vazquez-Flores is inapplicable. More over, the Board would note that the veteran has in fact been provided with the schedular criteria for evaluating service-connected PTSD at 38 C.F.R. § 4.130 during the pendency of this appeal. The Schedule for Rating Disabilities (Schedule) will be used for evaluating the degree of disability claims for disability compensation. The provisions of the Schedule represent the average impairment in earning capacity in civil occupations resulting from those disabilities, as far as can be determined. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. It is the intention of the Rating Schedule to incorporate the American Psychiatric Association's, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) into the general rating formula for mental disorders. 38 C.F.R. § 4.125, 4.126, 4.130. Evaluating disability of mental disorders requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The DSM-IV uses a Global Assessment of Functioning (GAF) scale as a method for quantifying psychological, social, and occupational functioning on a continuum of mental health- illness. GAF scores from 61 to 70 are reflective of some mild symptoms (depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well with some meaningful interpersonal relationships. GAF scores from 60 to 51 reflect moderate symptoms (flat affect and circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with co-workers). PTSD warrants a noncompensable evaluation if there is a formal diagnosis, but symptoms are not severe enough either to interfere with occupational and social functioning or to require medication. A 10 percent evaluation is warranted when occupational and social impairment result from mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms are controlled by continuous medication. A 30 percent evaluation is warranted with 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 normal conversation) 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 U.S.C.A. § 4.130, Diagnostic Code 9411. Analysis: The veteran filed a claim for service connection for PTSD in June 2005, well over 30 years after he was separated from service. The service medical records do not reflect psychiatric impairment. There is no record that the veteran has ever sought or required psychiatric care, treatment or medication at any time during these 30 years, and the veteran does not claim such treatment. The veteran was seen for private psychological evaluation in June 2005. His combat service for the last ten months of his military service in Vietnam were discussed. He reported experiencing dreams about Vietnam when returning from that assignment, but reported only periodic bad dreams during more recent times. He had been employed with the same company since 1972, and that his current position was partially supervisory as that of an assistant foreman. Work relationships were described as good. He reported that he had made and kept good friendships. At the current time, he has been interested in old cars and streetcars as hobbies. After a short 11-month marriage in 1991, the veteran had been happily married to his current wife for over 10 years and he maintained casual contacts with his surviving siblings. The veteran showed good insight into describing his general mood and felt that he got irritated and angry a little faster than others. There was no history of violence, difficulty with legal authorities, or drug or alcohol abuse. He denied all suicidal ideation, intent or plan. This private examination also included psychological diagnostic testing of both the MMPI-2 and the BDI-2. Although interpreted as perhaps revealing that the veteran unrealistically reported more favorable responses than actual, the BDI-2 indicated no areas of depression or distress, and all clinical scales and elements were within normal limits. Moreover, the MMPI-2 test was not diagnostic for PTSD. A simple memory test yielded no significant negative results. However, the clinician felt that the veteran did have a valid diagnosis of PTSD. He did not have bad dreams often at present. There was an exaggerated startle response and avoidance of arousal material. The clinician pointed out that the veteran managed his symptoms adequately well over many years after service through demonstrated job stability, lack of substance abuse, and planning for future. The private psychologist provided a current GAF score of 61. The veteran was examined by a VA board-certified psychiatrist in May 2006. The claims folder was available and reviewed, and the psychiatrist noted the psychiatric testing completed privately the previous year. It was noted that there had been no previous outpatient treatment or hospitalization for a mental disorder. There was no current treatment for a mental disorder. It was noted that there was no daytime intrusive recollections, dreams still occurred but were infrequent, and the veteran did not like to see news of Iraq. There were no flashbacks, no amnesia for previous combat, the veteran had kept his interests, there was a mild degree of estrangement, he slept well, concentration was unaffected, watchfulness continued and startle response was diminished but still present. There was no drug or alcohol use, and no legal difficulties. The veteran had been married for 10 years with one stepson, was close to a brother, and belonged to a VFW veteran group with friends in that group. There were private interests and hobbies. There was no history of suicide attempt or assaultiveness. The veteran was clean, neatly groomed, appropriately and casually dressed, his speech was unremarkable and attitude was cooperative, friendly, relaxed and attentive. Affect was appropriate, mood was described as being pretty good most of the time with occasional anxiety. The veteran was oriented to person, time and place, thought process was goal-oriented and logical, thought content was unremarkable, there were no delusions, judgment was good and intelligence was above average. There was no noted sleep impairment, no hallucinations, and no inappropriate behavior. The examiner noted a belief that the veteran had some symptoms of panic attack, but not to the level of a diagnosis. Objective testing was also performed at this examination, which was indicative for a diagnosis of PTSD, and severity of PTSD symptoms was described as "mild." The diagnosis was PTSD, symptoms were listed as mild, and the GAF score, identical to the private examination of one year earlier, was 61. The Board finds that a clear preponderance of the evidence on file is against an evaluation in excess of the presently assigned 10 percent. Strictly in accordance with the rating criteria, the two examinations on file reflect mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Both exams consistently report essentially mild symptoms, with identical GAF scores of 61, which according to the DSM-IV also is reflective of mild symptoms. The veteran does not meet the criteria for the next higher 30 percent evaluation in that he is not shown to have occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. There is not significant evidence of depressed mood, suspiciousness, panic attacks weekly or less often, chronic sleep impairment or memory loss. Although there is a degree of chronic anxiety and the VA examiner noted that there were some symptoms of panic attack, examination and review of the clinical record did not establish panic attacks "to a level of a diagnosis." Although the veteran reported difficulty remembering, this is not uncommon and all testing results revealed no impairment of memory. There is an absence of evidence of inappropriate or disturbed behavior, and little to no significant evidence of impairment of the veteran's ability to work and socially interact with others. The veteran has a long history of continuous employment where he presently serves in a partially supervisory role. He has a successful marriage with family and some friends, and personal interests. The record does not reveal any significant psychiatric impairment with a complete absence of evidence of any need for continuing care, treatment or medication. The two psychiatric examinations on file, both VA and private, are reflective of mild symptoms which warrants the currently assigned 10 percent evaluation. ORDER Entitlement to an evaluation in excess of 10 percent for (PTSD) is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs