Citation Nr: 1007498 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-33 180 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1961 to March 1965 and November 1965 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the RO. FINDINGS OF FACT 1. Throughout the period of the appeal, the Veteran's service-connected PTSD symptoms are shown to be moderate in nature and more nearly approximate occupational and social impairment with reduced reliability and productivity and difficulty establishing and maintaining effective work and social relationships. 2. Occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships is not demonstrated at any time of the initial rating period. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for the assignment of an initial evaluation of 50 percent, but no higher, for the service-connected PTSD have been met for the entire period of initial rating. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130 Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. In this case, the VCAA notice was provided to the Veteran in correspondence from the RO dated in February 2008 and November 2008. These letters notified the Veteran of information necessary to substantiate his claim, VA's responsibilities in obtaining information to assist him in completing his claim, and identified his duties in obtaining information and evidence to substantiate his claim. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Effective May 30, 2008, 38 CFR 3.159 was revised to clarify that no duty to provide section 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." 38 C.F.R. § 3.159 (b)(3) 2008. As the Veteran voiced disagreement with the initially assigned rating for the PTSD in a notice of disagreement, no further duty to inform the Veteran of the requirements of VCAA exists. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all pertinent development has been undertaken, examination has been performed, and all available evidence has been obtained in this case. Thus, the Board finds that VCAA notice and assistance has been provided, and no further action is necessary. Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2009). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2009). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. Under Diagnostic Code 9411, using the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for 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 50 percent disability rating is warranted for 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. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: 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; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. 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). The nomenclature employed in the schedule is based upon the DSM- IV, which includes the GAF scale. See 38 C.F.R. § 4.130. The GAF Scale score is based on all of the veteran's psychiatric impairments. A GAF Scale score of 21 to 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). A GAF Scale score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or an 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 Scale score of 41 to 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 Scale score of 51 to 60 represents 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 coworkers). A 61 to 70 GAF Scale score 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, and has some meaningful interpersonal relationships. In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples or symptoms "like or similar to" the veteran's PTSD symptoms in determining the appropriate schedular rating assignment, and, although noting which criteria have not been met, has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis of Initial Rating for PTSD In the appealed August 2007 rating decision, the RO granted service connection for PTSD and assigned a 30 percent rating effective October 3, 2003, the date the Veteran's claim for service connection for PTSD was received. The Veteran contends that his PTSD symptoms are productive of a level of disability greater than what is contemplated by the initially assigned 30 percent rating. The Veteran received treatment for his PTSD in a private facility and at VA. Treatment records from September 2003 to March 2009 document the treatment he received at the private facility. In a September 2003 private treatment record, the Veteran described his experiences associated with his service in Vietnam. His reported symptoms included intrusive thoughts, distress at exposure triggers which reminded him of past trauma, sleep disturbance, irritability, memory problems and hypervigilance. He was a self-employed substance abuse counselor and had a history of alcohol dependence; however, he had been sober for many years. Objectively, he was pleasant, cooperative, and dressed appropriately. His speech was normal and he denied any specific depressed mood. He had an approximately full range of affect. His thought process was linear and he had no hallucinations or delusions. There was no suicidal or homicidal ideation. Cognition was grossly intact and judgment and insight were fair to good. The diagnosis was moderate PTSD and a GAF score of 40 was assigned. The physician explained that due to the Veteran's PTSD, he was mildly compromised in his ability to sustain social and work relationships. Therefore, the physician considered the Veteran "permanently disabled." During a March 2004 VA examination, the Veteran described his experiences associated with his service in Vietnam. The examiner recorded his history of treatment for PTSD. He was self-employed with his own substance abuse counseling business. He accomplished his activities of daily living. His physical health was generally pretty good. His social relationships and recreational and leisure pursuits were mostly confined to the AA program. Objectively he was alert, cooperative and friendly. He was neatly dressed, answered questions and volunteered information. There were no loose associations or flight of ideas. There were no bizarre motor movements or tics. His mood was calm, his affect was appropriate and he no longer had nightmares, flashbacks or intrusive thoughts. He had no homicidal or suicidal ideation or intent. He had no impairment in thought processes or communication. There were no delusions, hallucinations, ideas of reference or suspiciousness. He was oriented in three spheres. His memory was good and insight, judgment and intellectual capacity were adequate. The diagnosis was alcohol dependence, in total remission. The examiner explained the Veteran did not meet the criteria for PTSD. To that end, the examiner explained while the Veteran had a history of traumatic events, he no longer had nightmares, flashbacks or intrusive thoughts. He could talk about his experiences; however, he did not watch television programming concerning Vietnam. He had no loss in social activities and was not detached and/or estranged from others. He was not emotionally numb and did not have a sense of foreshortened future. He was slightly anxious and did have sleep impairments. He was assigned a GAF score of 75 and the examiner explained that the Veteran had only mild impairment of psychosocial functioning which was mainly reactions of normal stressors. In March and October 2004 private treatment records, the Veteran reported PTSD symptoms remained wholly unchanged from previous accounts. The diagnosis was moderate PTSD and a GAF score of 40 was assigned. The physician commented that, due to PTSD, the Veteran had significant difficulty sustaining social and work relationships and was therefore permanently disabled. Objective findings in a May 2004 private record showed the Veteran was pleasant and cooperative. He had normal dress and speech. His mood was slightly anxious and his affect was restricted. Thought process was linear and there was no evidence of hallucinations, delusions, suicidal ideation or homicidal ideation. Attention, judgment and insight were fair. His medication regimen was continued. In remaining private treatment records dated May 2005 to March 2007, the Veteran's report of PTSD symptoms fluctuated and assigned GAF scores ranged from 45 to 50. During a June 2007 VA examination, the Veteran described his experiences associated with his service in Vietnam. The examiner recorded his history of treatment for PTSD. He complained of recurrent intrusive thoughts and nightmares of his time in Vietnam. He tried to avoid any involvement with Vietnam or any war-related material (when exposed to such material he experienced anxiety and an exaggerated startle response). He had very little social life or contacts outside the context of AA related activities (he did not feel comfortable around others in other situations). He appeared to have compensated, partially, with regard to his PTSD and related alcoholism, in that he had found a structured environment and ideational focus which allowed him to gain enjoyment and fulfillment from life to a limited degree (with regard to his AA involvement). Objective findings at the June 2007 VA examination reflect that the Veteran was pleasant, well-kept, and answered questions appropriately. His affect was bright and he always brought the conversation back to AA "which saved my life." There was no evidence of suicidal, homicidal or psychotic ideation. He denied feeling depressed and his cognition was grossly intact. There was no abnormal motor activity. The diagnosis was PTSD and a GAF score of 60 was assigned. The examiner noted that while the private treatment records were globally supportive of a diagnosis of PTSD, they were not detailed enough to support the diagnosis based on the DSM criteria. However, given the objective findings of the examination and the overall perspective of the records contained in the file, the currently diagnosed PTSD did meet the DSM criteria. In private treatment records from September 2007 to March 2009, the Veteran's report of PTSD symptoms fluctuated with a trend toward regression in the symptoms. In the records the assigned GAF score was 50. After a full review of the record, the Board finds that, for the entire period of the initial rating appeal, the Veteran's service-connected PTSD more nearly approximates occupational and social impairment with reduced reliability and productivity and difficulty establishing and maintaining effective work and social relationships, as contemplated by a 50 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. In this regard, the Board notes the September 2003 and March 2004 private treatment record in which the physician diagnosed moderate PTSD. In the March 2004 private record, the physician explained the Veteran had significant difficulty sustaining social and work relationships and was therefore permanently disabled. In the June 2007 VA examination report, the examiner concluded that the Veteran had difficulty with relationships. The Board has weighed and considered that in the private treatment records the Veteran was assigned GAF scores that ranged from 40-50. In this regard, GAF scores that range from 41-50 are assigned for PTSD with serious (major) symptoms. A disability evaluation shall be assigned based on all the evidence of record that bears on occupation and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination, or solely on the basis of social impairment. See 38 C.F.R. §§ 4.126 (2009). In this case, these GAF scores certainly support the assignment of a higher initial evaluation of 50 percent; however, the actual symptomatology reported or shown more nearly approximates not more than a 50 percent rating. With regard to the weight to assign various GAF scores that have been assigned, the GAF scores must be interpreted "in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." 38 C.F.R. § 4.2. The veteran's actual psychiatric symptomatology manifested by his PTSD is encompassed by the 50 percent disability rating criteria. The Board finds that the specific symptomatology reflected by the clinical findings outweigh the general characterization of disability as reflected by the assignment of GAF scores. For these reasons, a 50 percent evaluation is warranted for the entire initial rating period. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. As occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships is not demonstrated during this time, an evaluation in excess of 50 percent is not warranted. At no time during the initial rating period has the Veteran's PTSD demonstrated symptomatology similar to suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships, as required for a 70 percent disability rating. 38 C.F.R. § 4.130. Extraschedular Consideration In Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the disability is not so unusual or exceptional as to render impractical the application of the regular schedular standards at any time during the pendency of the initial evaluation period. 38 C.F.R. § 3.321(b)(1) (2009). The schedular rating criteria for rating mental disorders contemplates a wide range of psychiatric symptomatology, including any psychiatric symptoms that are like or similar to the schedular symptoms, so well contemplates all of the Veteran's symptoms, especially including intrusive thoughts, sleep disturbance, irritability, memory problems, anxiety, and difficulty sustaining social and work relationships. The Veteran's PTSD has not necessitated frequent periods of hospitalization and there is no objective evidence that it resulted in marked interference with his employment. For these reasons, the Board finds that the facts of this case do not present such an extraordinary disability picture such that the Board is required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra- schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER A higher initial disability rating of 50 percent for service- connected PTSD, for the entire initial rating period, is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs