Citation Nr: 0935528 Decision Date: 09/21/09 Archive Date: 10/02/09 DOCKET NO. 09-02 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated at 50 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a May, 2008, rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the benefit sought on appeal. The Veteran, who had active service from July 1967 to July 1970, appealed that decision to the BVA and the case was referred to the Board for appellate review. FINDING OF FACT The Veteran's service-connected PTSD is not manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. CONCLUSION OF LAW The criteria for a disability rating for PTSD in excess of 50 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claims on appeal, 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 (2008). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in October 2007 and June 2008. See 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 v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran 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. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. The present appeal involves the Veteran's claim that the severity of his service-connected PTSD warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected PTSD has been rated by the RO under the provisions of Diagnostic Code 9411. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this regulatory provision: A 50 percent disability rating is warranted if the Veteran experiences 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 70 percent disability rating is warranted when the Veteran experiences 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. The Board notes here that the symptoms listed in VA's general rating formula for mental disorders is 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 (2002). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF of 61-70 indicates 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 with some meaningful interpersonal relationships. A GAF 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). A GAF 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). A GAF of 31-40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). A GAF of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends.) American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (Fourth Edition); see 38 C.F.R. § 4.130. The record contains VA treatment records from September 2005 to March 2006, and these records show treatment for the Veteran's PTSD. Those records contain GAF scores of 50. The Veteran was afforded a VA examination in February 2008. The Veteran noted that he had been married once and divorced once. He reported that he gets along "okay" with his daughters. Upon examination, he appeared clean, neatly groomed, and appropriately dressed with no remarkable psychomotor activity. His speech was impoverished, soft or whispered, slow, and coherent. His attitude was cooperative and relaxed and his affect was appropriate. The Veteran described his mood as lousy. The Veteran evidenced computation and concentration difficulties when attempting to do serial sevens and to spell a word backwards and forwards. He was however able to recall three out of three objects after a five minute delay. He was fully oriented to time, place, and person. His thought process and content were unremarkable with no delusions apparent. The Veteran's judgment showed that he understands the outcome of behavior. His intelligence was below average. The Veteran's insight was poor in that he does not understand that he has a problem. The Veteran did report insomnia. He had no inappropriate behavior, obsessive or ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. He did have poor impulse control. Although he noted no episodes of violence, he suggested that he is easily irritated, easily aggravated, and waveringly angry. His remote memory was mildly impaired, but his recent and immediate memory was normal. He reported recurrent and intrusive distressing recollections of the traumatic event, including images, thoughts, perceptions, recurrent distressing dreams, and acting or feeling as if the traumatic event were recurring. The examiner noted that the Veteran puts forth effort to avoid thoughts, feelings, or conversations associated with the trauma, and activities, places, or people that around recollections of the trauma and that he has markedly diminished interest or participation in significant activities and a feeling of detachment or estrangement from others. He showed a restricted range of affect. He reported difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. He indicated that his symptoms are constant, mild to moderate, and last seconds at a time. Upon testing, the Veteran showed some protocols consistent with a diagnosis of PTSD. The remainder of his protocols were consistent with a somatoform disorder, a severe personality disorder, dependence on alcohol, and an alcohol induced mood disorder. The Veteran was not currently employed. He has been unemployed for more than 20 years. The examiner diagnosed the Veteran with chronic mild to moderate PTSD, a pain disorder associated with both psychological factors and a general medical condition, alcohol dependence self reported to be in remission, and alcohol induced mood disorder. He also diagnosed a personality disorder not otherwise specified with prominent dependent and schizoid features. A GAF of 55 was recorded. The examiner noted that while there is support for PTSD signs and symptoms, there are also comorbid disorders which negatively impact upon the Veteran's functional state and quality of life. His pain disorder is independently responsible for impairment in psychosocial functioning and would tend to make him more easily excitable and dysfunctional when he is under stress. His mood disorder is independently responsible for impairment in his social adjustment and results in a lowered quality of life. The examiner continued stating that there is no total occupational and social impairment due to PTSD symptoms. The symptoms also do not result in deficiencies in judgment, thinking, family relations, work, mood, or school. The symptoms do not cause reduced reliability and productivity. There is no occasional decrease in work efficiency and no intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms. There are PTSD signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The example provided notes that the Veteran is no longer in treatment and his memory, attention, and concentration are intact. While there are signs of mild to moderate PTSD, there does not appear to be anything which is new and there are comorbid mental health disorders which also negatively impact upon his social and occupational functioning. After considering the totality of the pertinent evidence, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to the next higher rating of 70 percent. The evidence affirmatively shows that the majority of symptoms listed for a 70 percent rating under Code 9411 have not been demonstrated, nor have any minority of symptoms listed been deemed severe enough to warrant a higher rating. To warrant a 70 percent disability rating, the evidence must show 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 work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The evidence of record for the period of time on appeal includes the VA treatment records and the report if the VA examination in February 2008. At the time of the VA examination the examiner noted that the Veteran's symptoms do not result in deficiencies in judgment, thinking, family relations, work, mood, or school as required by the 70 percent criteria. In addition, the Veteran had no suicidal ideation, obsessive or ritualistic behavior, or panic attacks. His speech was described as impoverished, soft or whispered, slow, and coherent, at no point described as illogical, obscure, or irrelevant. The examiner noted no spatial disorientation. Regarding personal appearance and hygiene, the Veteran appeared clean, neatly groomed, and appropriately dressed with no remarkable psychomotor activity. Regarding relationships, the Veteran reported that he had been divorced once, but that his relationship with his daughters was "okay." The Board acknowledges that the Veteran has impaired impulse control and difficulty adapting to stressful circumstances. Although the Veteran noted no episodes of violence, he suggested that he is easily irritated, easily aggravated, and angry at an average level. Also, the examiner noted PTSD signs and symptoms that are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Although the Veteran has such impaired impulse control and difficulty adapting to stressful circumstances, they are, as described by the examiner, mainly transient or mild. The examiner specifically opined that, while there are signs of mild to moderate PTSD, there does not appear to be anything which is new and there are comorbid mental health disorders which also negatively impact upon his social and occupational functioning. The Board finds that the symptomatology does not warrant a disability rating in excess of 50 percent disabling. The Board also recognizes the GAF scores of 50 and 55 reported during the course of this appeal. Theses scores suggest only moderate impairment and correspond to the opinion of the VA examiner. The GAF scores are therefore consistent with the Veteran's current rating of 50 percent disabling. The clear preponderance of the evidence is against a finding that the disability picture more nearly approximates the criteria for the next higher rating of 70 percent. Finally, in Thun v. Peake, 22 Vet.App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Finally, in making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence with regard to the adverse determination in this decision. The preponderance of the evidence is against finding entitlement to any increased rating in this appeal. To that extent, as the preponderance of the evidence is against the claim, the benefit-of-the- doubt doctrine does not apply and the claim must be denied. See Gilbert v. Derwinski, 1 Vet.App 49 (1990). ORDER A rating in excess of 50 percent for PTSD is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs