Citation Nr: 1035002 Decision Date: 09/16/10 Archive Date: 09/21/10 DOCKET NO. 06-22 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased initial disability evaluation for post traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD LouElla Kuta, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in pertinent part, granted the Veteran's claim of entitlement to service connection for PTSD, and assigned a 30 percent disability evaluation, effective July 15, 2004. In an August 2009 decision, the Board denied the Veteran's claims of entitlement to service connection for bilateral hearing loss, tinnitus, and for a disability manifested by blisters on the hands and feet, to include as secondary to herbicide agent exposure. The PTSD claim was remanded in order to schedule the Veteran for a VA examination, which was conducted in November 2009. FINDING OF FACT The Veteran's PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; panic attacks more than once a week; 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. CONCLUSION OF LAW The criteria for an initial 50 percent evaluation, and no higher, for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) redefined VA's duty to assist the claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. No claims of prejudice have been made in this case. Accordingly, no additional development is required with respect to the duty to notify. Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA has obtained all available records, including service records and records of post service treatment. Additionally, the Veteran was afforded VA examinations in response to his claim. The Board is satisfied that the development requested by the Board's August 2009 remand has been satisfactorily completed and substantially complied with. This includes the above-noted development to schedule the Veteran for a VA examination. Only substantial, and not strict, compliance with the terms of a Board remand is required. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2009). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2009). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2009). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2009). Diagnostic Criteria PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which in turn incorporates criteria contained in the General Rating Formula for Mental Disorders. Under the General Rating Formula, 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is 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 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 evaluation is warranted for PTSD if the Veteran exhibits: 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is 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; memory loss for names of close relatives, own occupation, or own name. The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130. The Global Assessment of Functioning (GAF) score 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 (citing Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV) at 32). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF score of 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 rating 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 score of 61-70 reflects 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 has some meaningful interpersonal relationships. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan the Court upheld the Board's decision noting that the Board had considered all of the Veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan v. Principi, at 444. PTSD Background In June 2005, the Veteran was afforded a VA examination. The Veteran stated he had a "good" marriage of 26 years because his wife "puts up with[him]," although he admitted he often felt emotionally distant and detached from his wife, noting they did very little together socially. He reported a "fair to good" relationship with his son and a "strained" relationship with his step-daughter. The Veteran also stated that he had only one close friend, from his high school days, and he spoke with him approximately once per year. The examiner stated the Veteran was alert, oriented, and casually dressed with good personal hygiene. His speech and gait were unremarkable, eye contact was fair, and he appeared to be cognitively intact. He described his current mood as "angry" and his affect was dysphoric, restricted, and congruent with his mood. His insight and judgment appeared good, thought processes were linear and coherent, and there was no evidence that the Veteran was responding to internal stimuli. The Veteran reported near daily intrusive memories of Vietnam which had increased in severity since the war in Iraq and Afghanistan. He avoided people, events, conversation, and activities that reminded him of Vietnam. The Veteran experienced sleep impairment, accompanied by combat-related nightmares. He had increased irritability, difficulty managing his anger, difficulty concentrating, hypervigilance and an exaggerated startle response. The Veteran was working full time, involving solitary activities. The Veteran also reported several periods of significant depression, experiencing a depressed and irritable mood, decreased energy, motivation, and vague suicidal thoughts. The examiner diagnosed the Veteran with PTSD, chronic and severe, major depressive disorder, recurrent and severe, and assigned a GAF of 45. The examiner further noted the Veteran reported he was taking no psychotropic medications. TL, a friend of the Veteran, submitted a statement in October 2005, indicating the Veteran never wanted to go out with other friends, get to know people, or socialize like they did before he went to Vietnam. TL further noted the Veteran had held many jobs in the past 11 years. In October 2005, the Veteran's wife stated she had been married to the Veteran for 28 years with one son and a daughter from a previous marriage. She noted the Veteran had held many jobs and did not want to get too close to people. She stated that "it was time to walk on egg shells again" when the war started in Iraq. In October 2005, MJS, a licensed clinical social worker, stated she had known the Veteran for years, he had a working relationship with her oldest son and had been a friend. MJS stated she had witnessed a change in the Veteran over the past 10 years, he avoided special events such as birthday parties and holiday celebrations. He demonstrated increased irritability, startle response, sadness, and difficulty making decisions. MJS stated the Veteran had changed employment many times over the past 10 years, becoming involved in verbal conflicts while at work which had affected his occupational capability. In December 2006, the Veteran underwent a VA examination. The examiner noted the Veteran's claims file and medical records were reviewed. The Veteran stated that he had "severe" symptoms of PTSD since his return from Vietnam, but had never thought of getting treatment for his condition and was not attracted to receiving treatment at VA. He reported severe depression, the inability to concentrate, insomnia, intrusive thoughts and flashbacks, when triggered by smells and noises. He denied having nightmares. The Veteran reported he had been working for a large corporation for the past 10 years and he had no particular problem with his work. He stated that his marriage at times was "rocky," although he was close to his wife. The examiner stated the Veteran could not name any clear functional impairment with regard to his marital and social life. The examiner noted the Veteran appeared somewhat depressed and somber. His thought processes were logical, coherent and relevant. He was overall mentally intact, cooperative, and well oriented to time, place, person, and situation. His affect was flat. He stated that he had problems with his short term memory and that he compensated for this by making lists. He stated he was anxious and sometimes had panic attacks. He stated that he did experience road rage and anger control problems which he usually took out on himself. He denied having hallucinations or delusions although he stated that sometimes he felt he would be "better off dead." He denied having any intent to harm himself or others. The examiner stated the Veteran's problem behaviors had to do with his depression which he minimized as well as his lack of ability to concentrate. The examiner opined that the Veteran was severely depressed and it had mild to moderate effects on his social adjustment. The examiner opined that the Veteran was severely depressed but that he carried on with his life and tried to function the best that he could. The examiner opined that as likely as not he was worse than his current VA rating for PTSD. The examiner diagnosed the Veteran with PTSD with a GAF of 55; major depressive disorder secondary to PTSD with a GAF of 50, and an overall GAF of 50. The Veteran underwent a VA examination in November 2009 and the examiner initially noted the Veteran's medical chart and claims file was available and reviewed. The Veteran had been married for the past 33 years, with a son and a step-daughter. The Veteran was currently working as a contract worker in computers and he reported he was a "good worker" and making a living. The Veteran reported that he dreamed all the time about Vietnam and "thrashed" around quite a bit. He had significant intrusive thoughts "all the time" during the day, indicating smells, hunting, noises, and helicopters brought Vietnam back to him. He had trouble with crowds and when in social situations he felt out of control. He had trouble expressing his experiences, emotions, and feelings. The Veteran indicated he no longer had a startle response but had hypervigilance. He stated when he went into a restaurant he had to sit with his back to wall. The Veteran stated he had trouble sleeping, and that he was quite irritable and angry most of the time. The Veteran indicated that he had some trouble with concentration on the job. The Veteran stated that his symptoms had affected his wife and relationship with his children. The examiner stated the Veteran's appearance and hygiene were within normal limits and his ability to relate to the examiner was relaxed and cooperative. He maintained eye contact and was able to communicate but had some distress in talking about his wartime experiences. His stream of consciousness was spontaneous and well organized and his thinking was relevant and goal directed. His thought content was free of hallucinations, delusions, obsessive thoughts, or paranoid ideas. He had some anhedonia and some social withdrawal. He had some vague thoughts of suicide but no suicidal ideation. He was in contact with reality and oriented. There was no sign of a personality disorder, pain disorder, or somatoform disorder. The examiner diagnosed the Veteran with PTSD, chronic and moderate; depressive disorder, not otherwise specified (NOS); anxiety disorder, NOS, and assigned a GAF of 55. The examiner noted the Veteran was a victim of abuse as a child and this might account for some of his PTSD symptomatology, however, it was most likely that his PTSD symptoms were the result of his military trauma. The examiner stated the Veteran's depression and anxiety were secondary to his PTSD. Analysis The Veteran was granted service connection for PTSD in a July 2005 rating decision, and assigned a 30 percent disability evaluation, effective July 15, 2004. The Veteran contends that a higher evaluation is warranted. Based on the Veteran's statements, statements from the Veteran's wife and friends, along with medical evidence of record, weighing these findings together, the Board finds that the disability most closely approximates the criteria for a 50 percent rating and no higher. The symptoms listed in the criteria for a 50 percent evaluation are not intended to serve as an exhaustive list, but as examples of the type of symptomatology that would warrant that evaluation, but without those factors, differentiating a 30 percent evaluation from a 50 percent evaluation would be difficult. Mauerhan, 16 Vet. App. at 442. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational and social impairment equivalent to that which would be caused by those listed in the rating criteria, the appropriate equivalent rating will be assigned. Id. The Veteran endorsed many of the symptoms associated with a 50 percent disability rating for PTSD. Specifically, he reported or was noted to have a flattened affect, anxiety, panic attacks, irritability, feelings of detachment, hypervigilance, and sleep impairment. Despite these symptoms, he reported a fair to good and stable relationship with his wife and son, and a strained relationship with his step-daughter. In multiple VA examinations, the Veteran was assigned GAF scores indicative of moderate to serious impairment, ranging from 45 to 55. He reported problems with nightmares and hypervigilance which kept him awake at night. He indicated he felt depressed, to include contemplating suicide. The Veteran, however, stated he did not need nor want treatment or medication and has not sought treatment for PTSD. The examiners who conducted the VA examinations explained the reasons for their opinions and they are consistent with the evidence of record. Therefore, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Weighing these findings together, the Board finds that the disability most closely approximates the criteria for a 50 percent rating and no higher. The criteria for the next higher rating, 70 percent, are met if the Veteran has deficiencies in most of the areas of work, school, family relations, judgment, thinking and mood. The Veteran reported that his marriage was "good" and that he had satisfactory relationships with his children. Although the Veteran reported he had no friends, two individuals who considered themselves friends of the Veteran submitted lay statements on his behalf (See October 2005 statements of TL and MJS). He also kept in contact with Veterans with whom he served via e-mail. There is no impairment in occupational functioning as the Veteran has been steadily employed for the past 10 years. Although there is some conflicting evidence regarding the Veteran's employment history, in his VA compensation and pension examinations, he had reported working for the same company for the past 10 years. He reported during his December 2006 VA examination that he had no particular problems with his work because he worked in a solitary fashion, and he additionally had lost no time from work due to his PTSD. The Veteran does not have deficiencies in most of the areas required for a 70 percent rating. He has been shown to not have most of the symptoms listed as examples in the 70 percent criteria to include suicidal ideation (although he endorsed vague suicidal thoughts), obsessional rituals, speech that is intermittently illogical, obscure, or irrelevant, neglect of personal appearance, or the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Given these symptoms and medical evidence of record, the Veteran's disability most nearly approximates the criteria for a 50 percent rating for the entire appellate period. 38 C.F.R. § 4.7; See Fenderson, 12 Vet. App. at 126. Extra-Schedular The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service- connected disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2009). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Veteran has not contended that his service- connected PTSD has caused frequent periods of hospitalization or marked interference with employment. As noted above, the Veteran is employed full time, reported that he is a "good worker" and had no particular problems at work due to PTSD. The Board has found that the rating criteria used to evaluate the Veteran's service-connected PTSD reasonably describes his disability levels and symptomatology. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Total Rating based on Individual Unemployability The Court has held that, when evidence of unemployability is presented, the issue of whether a total disability based on individual unemployability (TDIU) will be assigned, should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In Rice, the Court determined that there is no freestanding claim for TDIU. Id. at 451. In the instant case, the Veteran has not raised the issue of TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Moreover, the Veteran is currently employed on a full- time basis. As the Veteran has not raised such a claim and there is no objective evidence of unemployability due to the service- connected PTSD, TDIU is not warranted in the instant case. ORDER Entitlement to an initial disability evaluation of 50 percent for PTSD is granted, subject to the applicable laws and regulations concerning the payment of monetary benefits. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs