Citation Nr: 0811533 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-08 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable disability rating for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from October 1968 to June 1971, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Houston, Texas, which granted service connection for PTSD and assigned noncompensable disability rating. FINDING OF FACT The evidence is in approximate balance indicating that PTSD causes occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. CONCLUSION OF LAW Resolving all reasonable doubt in the veteran's favor, the schedular criteria for an initial disability rating of 10 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9411, 9440 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS The veteran's PTSD claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional 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). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated with the claims folder the service medical records and reports of his post- service treatment for PTSD. In addition, in March 2005, he was afforded formal VA examination to evaluate the nature, extent and severity of this condition. Significantly, the Board observes that the veteran does not report that the condition has worsened since that time, and thus a remand is not required solely due to the passage of time since the March 2005 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the veteran will not be prejudiced by the Board's adjudication of his claim. The veteran contends that the currently assigned noncompensable disability rating does not contemplate the severity of his disorder. Having carefully considered the veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and a 10 percent disability rating will be assigned on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2007); Peyton v. Derwinski, 1 Vet. App. 282 (1991). There is a distinction between an appeal of an original or initial rating and a claim for an increased rating, and this distinction is important with regard to determining the evidence that can be used to decide whether the original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the rule articulated in Francisco v. Brown, 7 Vet. App. 55, 58 (1994) -- that the present level of the veteran's disability is the primary concern in a claim for an increased rating and that past medical reports should not be given precedence over current medical findings -- does not apply to the assignment of an initial rating for a disability when service connection is awarded for that disability. Fenderson, 12 Vet. App. at 126. Instead, where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). Anxiety disorders, which include PTSD, are rated under the criteria set forth in Diagnostic Code 9440. Both disorders are evaluated under the General Rating Formula for Mental Disorders, which provides that a 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 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 worklike setting); inability to establish and maintain effective relationships. A 50 percent disability rating requires 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. 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, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 10 percent disability rating requires 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 noncompensable disability rating is warranted for a mental condition that has been formally diagnosed, but whose symptoms are not severe enough either to interfere with occupational and social functioning or require continuous medication. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to 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). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a veteran's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (GAF) rating 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.1994). A GAF of 71 to 80 relates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); and no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Id. It should also be noted that use of terminology such as "mild or moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2007). VA Vet Center outpatient treatment records, dated from June to October 2004, show that the veteran attended intermittent group therapy sessions. The records indicate that he described experiencing feelings of guilt, isolation, remorse, restricted feelings, and readjustment problems. An assessment dated in September 2004 reflects that the veteran reported re-experiencing trauma when exposed to certain stimuli. He also described avoidant behavior, feelings of detachment, restricted range of affect, irritability, hypervigilance, and strained social and family relationships. A VA examination report dated in March 2005 shows that the veteran's entire claims file was reviewed by the examiner in conjunction with conducting the examination. The examiner indicated that there had been no previous psychiatric hospitalizations. Psychiatric symptoms in the preceding year were said to have been of low frequency, severity, and minimal to mild duration. The veteran reported feelings of guilt and detachment from society. He described intrusive memories triggered by the sound of a helicopter. He denied any nightmares or easy startle. There was somewhat decreased sleep, and he would avoid talking about Vietnam experiences with others. The veteran had been working for the Texas Work Force Commission for approximately the preceding 19 years. He had been a good marriage for 29 years and had two adult children. He reported no difficulty with social relationships and relating to others, and he worked with others constantly. He would play dominoes with his wife and another couple for relaxation and entertainment. He has a few friends. He indicated that he did not take any medications and had no other treatment. Mental status examination revealed that the veteran was casually and neatly dressed, and appeared his stated age. He was alert, cooperative, he made good eye contact. His affect exhibited a normal range and normal intensity. His mood was euthymic. There were no delusions or hallucinations. Eye contact was good. There were no suicidal or homicidal thoughts, ideations, plans, or intent. Personal hygiene was not impaired, and he was oriented to person, place and time. He had good recent and remote memory. No obsessive or ritualistic behavior was reported or found. Rate and flow of speech was good, and he was very articulate and well spoken. There were no panic attacks. His mood was depressed, but anxiety was not noted. There was no impaired impulse control noted, except for some easy loss of verbal temper. He had difficulty sustaining more than five hours of sleep per night. The diagnosis was PTSD. A GAF of 75 to 76 was assigned. The examiner added that the veteran did not have impairment in work and did not miss time from work due to PTSD. Had minimal impairment psychosocially, as he was able to socialize with another couple and interact well with his family. There was no impairment in employment. He was mentally competent to manage his VA benefits in his own best interest. As discussed above, a 10 percent disability rating for PTSD requires that occupational and social impairment is found due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or whose symptoms are controlled by continuous medication. Although the veteran has described experiencing guilt, isolation, remorse, restricted feelings, and readjustment problems, the VA examiner in March 2005 assigned a GAF of 75 to 76, which reflects transient symptoms that are expectable reactions to psychosocial stressors, and cause no more than slight impairment in social, occupational, or school functioning. Although he does not have all of the symptomatology consistent with a 10 percent disability rating, the Board finds that overall the veteran's disability picture more nearly approximates that which allows for a 10 percent disability rating. The Board has additionally reviewed the evidence to determine if a disability rating in excess of 10 percent may be assigned under the rating criteria. After a review of the evidence of record, the Board concludes that the veteran's PTSD is not productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, or mild memory loss. He is able to function acceptably on a daily basis. As such, the medical evidence contains no support for the assignment of a 30 percent disability rating. Additionally, the Board has considered the statements of the veteran as to the extent of his current PTSD. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular disability rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). To the extent that the veteran argues or suggests that the clinical data supports an increased evaluation or that the rating criteria should not be employed, he is not competent to make such an assertion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). In any event, because the evidence is in approximate balance as to the assignment of a 10 percent disability rating, the evidence is not in balance as to the assignment of a 30 percent evaluation. Fletcher v. Derwinski, 1 Vet. App. 394 (1991). Finally, the Board finds that there is no showing that the veteran's PTSD reflects so exceptional or so unusual a disability picture as to warrant a compensable rating on an extra-schedular basis. His PTSD is not productive of marked interference with employment, required any, let alone, frequent periods of hospitalization, and has not otherwise rendered impractical the application of the regular schedular standards. In the absence of these factors, the criteria for submission for assignment of an extra-schedular rating are not met. Thus, the Board is not required to remand this claim for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a 10 percent disability rating for service- connected PTSD is granted, subject to the applicable criteria governing the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs