Citation Nr: 1044591 Decision Date: 11/29/10 Archive Date: 12/03/10 DOCKET NO. 05-40 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to July 6, 2009. 2. Entitlement to a rating in excess of 70 percent for PTSD from July 6, 2009. ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1985 to August 1985 and from January 1987 to October 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for PTSD, rated 30 percent, effective March 6, 2003. A November 2005 rating decision increased the rating for PTSD to 50 percent, effective March 6, 2003. The case was before the Board in February 2008, January 2009, and April 2010 when it was remanded for further development. An August 2009 rating decision increased the rating for PTSD to 70 percent, effective July 6, 2009. As the rating is less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. At no time prior to July 6, 2009 was the Veteran's PTSD manifested by symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships or any other symptoms of equivalent nature and gravity. 2. At no time since July 6, 2009 was the Veteran's PTSD manifested by symptoms such 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; or any other totally disabling symptoms of equivalent nature and gravity. CONCLUSIONS OF LAW 1. A rating in excess of 50 percent for PTSD prior to July 6, 2009, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (Code) 9411 (2010). 2. A rating in excess of 70 percent for PTSD from July 6, 2009, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.130, Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A February 2006 letter provided notice with respect to extraschedular evaluations, and a March 2008 letter provided notice on the "downstream" issues of disability ratings and effective dates. The case was subsequently readjudicated in a June 2008 supplemental statement of the case (SSOC). 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ( "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Vazquez-Flores v. Shinseki, No. 05-0355 (U.S. Vet. App. Oct. 22, 2010). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's service treatment records (STRs), VA treatment records, and Social Security Administration (SSA) records has been completed. In connection with this claim, VA PTSD examinations were performed in May 2003, February 2005, March 2008, and July 2009. Taken together, these examinations are adequate. The 2003, 2008, and 2009 examiners specifically noted that the claims folders had been reviewed. All examiners obtained a reported history from the Veteran and conducted a thorough examination, which included providing Global Assessment of Functioning (GAF) scores. In addition, the 2005 examiner interpreted the results of recent neuropsychiatric testing. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board is satisfied that evidentiary development is complete; VA's duties to notify and assist are met. The Veteran is not prejudiced by the process in this matter. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). II. Factual Background and Legal Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet App 119, 125-26 (1999), the U.S. Court of Appeals for Veterans Claims (Court) distinguished appeals involving a Veteran's disagreement with the initial rating assigned at the time a disability is service-connected. Accordingly, where the question for consideration is the propriety of the initial rating assigned, as here, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged ratings" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Ratings are assigned 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, in determining the appropriate disability rating, the Board must consider whether the case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran argues that higher disability ratings are warranted for PTSD. Mental disability warrants a 50 percent rating where 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 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. 38 C.F.R. § 4.130, Code 9411. A 70 percent rating is assigned where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned 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 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. Id. A. PTSD Rating Prior to July 6, 2009 The totality of the evidence reflects symptoms warranting no more than a 50 percent rating for this period of time under the applicable criteria. The evidence does not demonstrate that the service-connected PTSD is by itself productive of occupational and social impairment with deficiencies in most areas or an inability to establish and maintain effective relationships. With respect to occupational impairment, the 2003 VA examiner described the Veteran's PTSD symptoms as mild and reported that "his PTSD symptoms have not prevented work and are not the cause of his current temporary disability leave." The Veteran had medical (physical) problems beginning in January 2003 which caused him to be hospitalized and leave work. The 2005 medical examiner noted that the Veteran was "in a motorized wheelchair and had a variety of serious medical problems to include reflux, dermatitis, allergic rhinitis, chronic rhinitis, sleep apnea, leukicytosis, pilondial cysts, [and] edema . . . [which] all interfere with his ability to work" in addition to service- connected fibromyalgia. The Board notes that although the Veteran may have some level of social impairment in that he describes himself as having only a few close friends at any point in his life, he described his relationship with his wife and children as "good" during his 2003 examination and described his wife as "supportive." The 2003 examiner found that he had good family role functioning. His wife accompanied him to several of his VA examinations. The 2008 VA examiner described her as providing "valuable collateral information," which demonstrates that she has a supportive, positive role in the Veteran's life. Although his relationship with his family was described as "difficult" during the 2008 examination, it was noted that there had been no discussion of separation or divorce. A January 2009 VA treatment record notes that while the Veteran described himself as apathetic "upon further questioning he indicates he is very interested in raising his children." With respect to suicidal ideation, the 2003 examiner noted "[n]one", and the Veteran denied such thoughts in 2005. In 2008, he denied suicidal thoughts now or in the past. The 2003 examiner noted "[n]one" to obsessive behavior and the 2005 examiner did not find him unduly obsessive or ritualistic. During the 2008 examination, the Veteran reported that he obsessed about a situation in Desert Storm when an individual died in his arms. Ritualistic behavior was denied at that time. His speech was not intermittently illogical, obscure, or irrelevant at any time prior to July 2009. During the 2003 examination he was verbal and easily understood. His rate and flow of speech was characterized as normal in 2003 and 2008. The 2003 examiner noted "[n]one" to panic attacks. The Veteran reported that he had panic attacks twice a day in 2008 when he gets short of breath. The Veteran and his wife reported irritability but did not report impaired impulse control in 2003 and 2005. The 2005 examiner noted adequate impulse control. The 2008 examiner noted impaired impulse control was "problematic" given the Veteran's anger and irritability. The 2003 examiner reported that the Veteran had "good responsibility for self-care. The 2008 examiner noted that at times the Veteran's wife had to "force the issue" and encourage him to shower and address basic needs. However, the 2008 examiner described the Veteran's ability to maintain personal appearance and hygiene as adequate. The Veteran's GAF scores likewise do not indicate a higher rating is warranted. During his 2003 VA examination the GAF was 65-68 and was 55 at the time of the 2005 and 2008 examinations. A January 2009 VA treatment record notes a GAF of 60. The 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 (1996). A score of 51-60 is appropriate where there are "[m]oderate 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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed.1994). In addition, a June 2004 VA medical record noted that the Veteran's PTSD was overall stable with mild depression and anxiety. Significantly, the opinion of the VA examiners in 2005 and 2008 was that the Veteran's PTSD did not worsen over this period beginning in 2003. In summary, while the evidence shows that prior to July 6, 2009, the Veteran's PTSD caused some social impairment and irritability, and may have impacted on his attention to personal hygiene, the PTSD was not manifested by suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech; or near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; periods of violence; spatial disorientation; or difficulty in adapting to stressful circumstances (including work or a worklike setting). These findings are inconsistent with a disability picture equivalent to the 70 percent rating criteria. Given this information, the Board does not find that the Veteran's PTSD symptomatology overall warrants a rating in excess of 50 percent prior to July 2009. B. PTSD Rating since July 6, 2009 The Veteran's treatment and examination records show that since July 6, 2009 his PTSD has been manifested by symptoms of anger, anxiety, depression, irritability, hypervigilance, exaggerated startle response, memory difficulties, avoidance, recurrent distressing dreams and nightmares, and sleep disturbance and insomnia. These symptoms are all encompassed by the criteria for the 70 percent schedular rating for PTSD that is currently assigned. At no time during this period are the Veteran's symptoms of PTSD shown to have been of such severity that they met (or more nearly approximated) the criteria for the next higher (100 percent) schedular rating. Specifically, there is no evidence of gross impairment in thought processes or communication. On July 2009 VA examination he had difficulty staying focused on topic but did all right with very structured questions. His speech was spontaneous, clear, and coherent. There is no evidence of persistent delusions or hallucinations. July 2009 VA examination noted no delusions or hallucinations. There was no evidence of grossly inappropriate behavior. VA outpatient treatment records from July 2009 to the present are silent for inappropriate behavior. On July 2009 VA examination the Veteran's behavior was appropriate. There is no evidence of a persistent danger of hurting self or others. On July 2009 VA examination the Veteran denied suicidal or homicidal thoughts. There is no actual report of intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) due to service-connected PTSD. On July 2009 examination it was noted that, due to his limited arm motion and his weight (not his PTSD), his wife had to assist him with activities of daily living. There is no evidence of disorientation as to time or place. Throughout, the Veteran has been oriented as to time, person, and place. There is no evidence of memory loss for names of close relatives, own occupation, or own name. Although his recent and immediate memory was noted to be moderately impaired at the time of the July 2009 VA examination, his remote memory was normal. The VA examination does not show him to have memory loss of the gravity contemplated by criteria for a 100 percent schedular rating. The Board acknowledges GAF scores assigned have ranged as low as 50 at the time of the July 2009 examination (signifying "[s]erious 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)" and as high as 60 in a September 2009 VA treatment record. The symptoms and impairment associated with these GAF scores are fully contemplated by the 70 percent schedular rating assigned, and do not reflect a disability picture consistent with the criteria for a 100 percent schedular rating. In summary, while the evidence shows that the Veteran's PTSD causes some social impairment, the symptoms shown are not such as to result in total social impairment. The Veteran has been married to his current wife for many years and has two children. He reports no discussion of separation or divorce, and the 2009 examiner noted that his psychosocial functioning was fairly limited but very family-centered. These findings are inconsistent with a disability picture of total social impairment. The disability picture presented by the Veteran's PTSD does not reflect that his PTSD is manifested by symptoms of a gravity and nature consistent with, or approximating, the criteria for a 100 percent schedular rating. Consequently, a schedular rating in excess of 70 percent for PTSD is not warranted. C. Extraschedular Evaluation Referral to the Director of the Compensation and Pension Service for a potential extraschedular rating may be made in exceptional cases where a case presents "such an exceptional or unusual disability picture with such related factors as marked interference with employability or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321. The Court has set forth a three-step analysis which provides guidance in determining when referral for extraschedular consideration is appropriate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Id. According to Thun, the initial step is 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. Id. Here, the Board has determined that higher ratings are not warranted on a schedular basis as the Veteran does not meet the criteria for the next higher schedular rating during either stage of the appeal. All of his manifestations, including flashbacks, nightmares, irritability, anxiety, and difficulty with relationships are contemplated by Diagnostic Code 9411 for the 50 and 70 percent ratings assigned. Thus, the Board finds that the schedular criteria are adequate. As the first step in Thun is not met, the case need not be referred for extraschedular consideration. The preponderance of the evidence is against the Veteran's claim. Therefore, the benefit-of-the-doubt does not apply; the claim must be denied. 38 U.S.C.A. § 5107(b). D. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2010). The Veteran has not worked since early 2003 and has been awarded SSA benefits based on inflammatory arthritis. However, he has been in receipt of a combined total (100%) schedular rating for his various service-connected disabilities since March 2003 (throughout the period under consideration). Thus, the matter of entitlement to a TDIU rating is moot. ORDER A rating in excess of 50 percent for PTSD prior to July 6, 2009, is denied. A rating in excess of 70 percent for PTSD from July 6, 2009, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs