Citation Nr: 1007197 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-09 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an evaluation higher than 30 percent for service-connected posttraumatic stress disorder for the portion of the appeal period prior to July 14, 2009. 2. Entitlement to an evaluation higher than 50 percent for service-connected posttraumatic stress disorder for the portion of the appeal period from July 14, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from February 1968 to April 1970. This matter arises before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The competent evidence of record shows that the Veteran's posttraumatic stress disorder (PTSD) has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective social relationships, nightmares, panic attacks, a sleep impairment, and anhedonia for the portion of the appeal period prior to July 14, 2009. 2. The competent evidence of record does not indicate that the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, during any portion of the appeal period. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 50 percent for the Veteran's service-connected PTSD have been approximated for the portion of the appeal period prior to July 14, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9411 (2009). 2. The criteria for an evaluation higher than 50 percent for the Veteran's service-connected PTSD have not been approximated during any portion during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. The Board notes that the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In March 2007 and June 2009 correspondence, the RO generally advised the Veteran of what the evidence must show to establish entitlement to an increased evaluation for his service-connected PTSD and described the types of lay and medical evidence that the Veteran should submit in support of his claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The VCAA notice letters also addressed the elements of degree of disability and effective date. As part of that notice, the RO told the Veteran that disability ratings usually range from zero to 100 percent depending on the disability involved and based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. In the present case, the Board notes that the Veteran was provided with adequate notice with respect to his increased rating claim by virtue of the aforementioned VCAA notice letters. Those documents informed the Veteran of the necessity of providing on his own or with VA assistance medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the Veteran's employment. The letters also notified the Veteran that, should an increase in disability be found, a disability rating would be determined by applying relevant diagnostic code(s) and included examples of pertinent medical and lay evidence that the Veteran may submit or ask the Secretary to obtain relevant to establishing entitlement to increased compensation. Finally, the RO also provided the specific criteria required to establish entitlement to an increased rating found in Diagnostic Code 9411 for PTSD. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO afforded the Veteran with compensation and pension examinations in February 2006 and July 2009 and associated the Veteran's VA treatment records with the claims file. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are, collectively, more than adequate, as they were predicated on a full reading of the VA medical records in the Veteran's claims file. All examinations included the Veteran's subjective complaints about his disabilities and the objective findings needed to rate the disabilities. The Veteran also submitted statements from his wife and a co- worker. Otherwise, he has not made the RO or the Board aware of any other evidence relevant to this appeal that he or the VA needs to obtain. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Accordingly, the Board will proceed with appellate review. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practically determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2009). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis The Veteran was granted a 30 percent disability rating for his PTSD in a March 2006 rating decision. In February 2007, he filed a claim for an increased rating, stating that his condition has worsened, citing continued mood swings, difficulty getting motivated to do anything around the house, depression, social impairment, difficulty retaining training materials, and memory loss. Although a May 2007 rating decision continued the Veteran's 30 percent disability rating, the RO increased the Veteran's disability rating in a July 2009 decision review officer decision effective July 14, 2009. The Veteran's appeal then continued to the Board. A 30 percent disability rating reflects evidence of 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is appropriate when a veteran's PTSD symptoms approximate 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; and difficulty in establishing and maintaining effective work and social relationships. In order for the Veteran to receive the next higher 70 percent disability rating, the evidence must show that the Veteran's PTSD symptoms approximate 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 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. Finally, a 100 percent disability rating is warranted when PTSD symptoms approximate 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; and memory loss for names of close relatives, own occupation, or own name. The amended regulations in 38 C.F.R. § 4.130 established a general rating formula for mental disorders. They assign ratings according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. The Board has reviewed the Veteran's complete claims file. Overall, the Board finds that the Veteran's symptomatology most closely approximated the criteria for a 50 percent disability rating for the entire appeal period. To be sure, the Veteran's claims file indicates he began treatment for PTSD with a February 2006 compensation and pension examination. At the time of this examination, the Veteran was sleeping only four hours per night and complained of anxiety; anxiety attacks that resulted in his heart racing, fear, and increased breathing; and dreams about Vietnam. The Veteran reported that he was not experiencing any problems at work but felt stress from subtle discrimination. The examiner noted that the Veteran saw his son about once a month and did not "get along well" with his daughter. The Veteran appeared indifferent when discussing his girlfriend of eight to nine years and stated that he had difficulty trusting others and kept people at a distance. The examination report further indicates that the Veteran had some friends but did not have many hobbies and has not had any motivation to get involved in hobbies. Also at this point, the Veteran reported that he occasionally drank alcohol. The examiner found that the Veteran's impulse control was "OK," as he sometimes got into verbal arguments with others but tried to control his temper. That being said, the Veteran was alert, oriented, and cooperative; maintained good eye contact; had normal and clear speech; and responded to questions in a logical manner without any inappropriate behavior. The examination report indicated that the Veteran had "OK" maintenance of personal hygiene, difficulty recalling long-term memories, no obsessive or ritualistic behavior, occasional panic attacks, and a depressed or anxious mood. The Veteran experienced nightmares, intrusive memories, and intense psychological distress at exposure to cues while trying to avoid trauma- related stimuli. The examiner assigned the Veteran a Global Assessment of Functioning (GAF) score of 56. The Veteran resumed treatment at the VA Medical Center (VAMC) in Kansas City in May 2007. He complained of a 15 year history of panic attacks. He also reported flashbacks, feeling sad and helpless, anhedonia, and social isolation. The Veteran's sleep impairment continued, resulting in four to five hours of sleep per night and nightmares. The examiner noted that the Veteran's speech was regular, his affect was anxious, and his mood was congruent. Furthermore, his thought process was both goal directed and linear. The examiner assigned him a GAF score of 55. In July 2007, he reported frequent nightmares and no panic attacks. Although an October 2007 treatment record noted that the Veteran would wake at around midnight, he denied nightmares, flashbacks, and panic attacks. However, the Veteran's nightmares returned by January 2008. The October 2007 treatment record also indicates that the Veteran's GAF score was 53 in July 2007. Then, in June 2008, the Veteran reported that he had little interest or pleasure in doing things and felt down, depressed, and hopeless for more than half the days in the previous two weeks. He also reported that in the previous two weeks he felt tired or had little energy every day, had a poor appetite or overate on several days, felt badly about himself on several days, and moved or spoke slowly or was fidgety and restless on several days. Upon examination, the Veteran revealed that he had a low libido and experienced multiple panic attacks during a brief period of time when he did not have any Paxil. By February of 2009, the Veteran had decreased his drinking, but was still having panic attacks, sleeping four hours a night, and experiencing nightmares. He was vigilant, startled easily, and was on edge. Furthermore, the Veteran demonstrated limited insight and a somewhat irritable affect, while stating that his mood was "not good." An April 2009 treatment report states that the Veteran's GAF score was 55 in February 2009. The Veteran continued treatment in June 2009, when a treatment report stated that he was still drinking one-half pint "every couple of days." The Veteran's grooming and hygiene were good, he made fair to good eye contact, had normal speech, and his mood was "about the same." Nevertheless, the Veteran had a decreased positive mental attitude, limited to partial insight, and rare nightmares. The report indicates that the Veteran's GAF score was 55 in April 2009. A July 2009 treatment report indicated that the Veteran's symptoms were similar to June 2009 and that the Veteran's GAF score was 65 in June 2009. The RO also afforded the Veteran with another compensation and pension examination in July 2009. At the examination, the Veteran complained of continued problems with nightmares and panic attacks. He also told the examiner that he was working part-time driving a bus for the past seven years and lost the keys to his bus twice, resulting in disciplinary action. He reported further problems at work, including verbal altercations with co-workers and fatigue due to sleep disturbances. During his free time at work, the Veteran preferred to stay alone on his bus. At home, the Veteran's relationship with his wife of two years was strained by his irritability, verbal aggression, and quick temper. If she woke him up, he would awake "ready to fight." Furthermore, the Veteran still maintained a conflictual relationship with his daughter and a good relationship with his son. Although the Veteran would chat with his neighbors outside on some evenings, he had no close friends and spent his free time alone in his bedroom. Moreover, the examiner noted that the Veteran had lost interest in previously enjoyable activities, and the Veteran reported that he drank about a pint of alcohol every couple of days and a pint a day up to a couple of days per week on his days off from work. In terms of impulse control, the Veteran described verbal aggression and physical aggression against objects (throwing things, hitting walls, kicking things) and told the examiner that he hit a man that owed him money a few months before the examination. Upon examination, the Veteran was alert, oriented, and cooperative. He maintained fair eye contact, his speech was normal and clear, and he was cooperative. The examiner described the Veteran's thought process as goal-directed, his mood as depressed, and his affect as blunted. The Veteran demonstrated "Ok" maintenance of personal hygiene and other basic activities of daily living, and the examiner noted that he had some short-term memory impairment, including the aforementioned lost keys incidents and problems remembering names and appointments. The Veteran stated that he experienced a depressed mood and anxiety on a daily basis, panic episodes up to three times a week, and slept about five hours a night. After examining the Veteran, the examiner assigned a GAF score of 50. Shortly after the July 2009 compensation and pension examination, the Veteran presented for his most recent consultation. In October 2009, he had transient jitters and described his mood as "pretty good." He asserted that he had no suicidal or homicidal ideations, and the examiner found that he had no psychosis. The Veteran complained of occasional nightmares, but his grooming and hygiene were good and his PTSD was mild. The Board observes that the Veteran's treatment providers have assigned him Global Assessment of Functioning (GAF) scores ranging from 50 to 65. A GAF score ranging from 41-50 is assigned where there are 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 score of 51-60 is appropriate where there are 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); and a GAF score of 61-70 reflects an individual with some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, such as occasional truancy or theft within the household, but generally functioning pretty well and having some meaningful interpersonal relationships. In addition to the medical evidence discussed above, the Veteran also submitted statements from his co-worker and his wife. In June 2009, the Veteran's wife wrote that the Veteran was easily distracted and angered and had panic attacks almost every day or sometimes more than once a day. She stated that he was unable to control his anger and described two incidents in which he lost his temper. Furthermore, the Veteran's wife asserted that the Veterans was very forgetful and felt like the world was against him. She also corroborated the VAMC treatment records that indicated the Veteran wakes up violently and does not sleep well. Finally, she stated that they had not been intimate for over five years. In July 2009, the Veteran's co-worker also described the Veteran's anger and memory problems. She said that they get into arguments because he does not remember previous conversations. She noticed that the Veteran has missed many days of work over the last few years because he seemed to "be just down a lot." The Veteran told this co-worker that he could not sleep at night and that he would wake up in a cold sweat with his heart racing. Considering the above-referenced evidence, the Board finds that the overall disability picture associated with the Veteran's PTSD as shown by the probative evidence of record most closely approximates the criteria associated with a 50 percent disability rating, representing occupational and social impairment with reduced reliability and productivity, for the entire appeal period. The Board notes that the Veteran suffered impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective social relationships, nightmares, panic attacks, sleep impairment, and anhedonia throughout the entire appeal period. Although the evidence of record indicates that the Veteran experienced impaired impulse control, he never demonstrated most of the symptoms associated with a 70 percent disability rating. For example, there is no evidence that the Veteran ever suffered from suicidal ideations; obsessional rituals that interfered with routine activities; illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively; spatial disorientation; or neglect of personal appearance and hygiene. When considered in conjunction with GAF scores ranging from 50 to 65, the Board finds that the competent evidence of record does not indicate that the Veteran's PTSD symptomatology warrants a 70 percent disability rating. Therefore, the Board further finds that the evidence demonstrates that the Veteran is entitled to a 50 percent disability rating, and no higher, for the entire appeal period. Thus, to that extent, the Veteran's appeal is granted. The Board further notes that there is no evidence of record that the Veteran's claimed disability warrants a higher rating on an extraschedular basis. 38 C.F.R. § 3.321(b) (2009). Any limits on the Veteran's employability due to his disability have been contemplated in the currently assigned disability rating. The evidence does not reflect that the Veteran's disability has necessitated any frequent periods of hospitalization or caused marked interference with unemployment. Thus, the record does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant the assignment of an extraschedular rating. Since the application of the regular schedular standards is not rendered impracticable in this case, referral of this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for consideration of the assignment of an extraschedular evaluation is not warranted. ORDER 1. Entitlement to an evaluation of 50 percent for service- connected posttraumatic stress disorder for the portion of the appeal period prior to July 14, 2009 is granted. 2. Entitlement to an evaluation higher than 50 percent for service-connected posttraumatic stress disorder for the portion of the appeal period from July 14, 2009 is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs