Citation Nr: 1101774 Decision Date: 01/14/11 Archive Date: 01/20/11 DOCKET NO. 08-20 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from June 2000 to April 2006, to include combat duty in Iraq. This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted service connection for PTSD at a noncompensable evaluation. The Veteran filed a timely notice of disagreement with the assigned rating. A subsequent decision, in June 2008, assigned a 10 percent evaluation (with effective date set to the date of claim for service connection), and the Veteran maintains that he is entitled to a higher rating than what is contemplated by the 10 percent evaluation. The case was remanded by the Board in July 2009, and all required actions have been completed. FINDING OF FACT The Veteran's PTSD is manifested by sleeping problems, fatigue, hypervigilance, difficulty in concentration, and some social isolation which equates to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; routine behavior is normal, and the Veteran is employed full-time and has been able to advance his education since discharge from service. CONCLUSION OF LAW The criteria for a 30 percent evaluation for PTSD, but no more than 30 percent, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) and, inform the claimant about the information and evidence the claimant is expected to provide. Although no longer required, in this case it was requested that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). The Veteran was informed of how VA determines disability ratings and establishes effective date of awards for service-connected benefits, as required by judicial precedent. See Dingess v. Nicholson, 19 Vet. App. 473 (2006) The Veteran is represented by the Georgia Department of Veterans Services, and that organization is presumed to have knowledge of what is necessary to substantiate a claim for a higher initial rating. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. With respect to the clinical examinations, the Board finds that the Veteran was provided thorough VA examinations which are adequate for rating purposes; there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2010). Legal Criteria-Increased Ratings/General Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. For claims for increased rating which arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Legal Criteria-Increased Rating (PTSD) Diagnostic Code 9411 addresses PTSD. Under that code, evaluations may be assigned ranging between 0 and 100 percent. The veteran is currently assigned a 10 percent disability rating. A 10 percent disability evaluation is assigned under this code for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. The next highest 30 percent evaluation is in order 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted 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 in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when PTSD causes 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 work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A maximum 100 percent rating is assigned for PTSD that causes 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. The global assessment of functioning (GAF) 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). See Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF from 61 to 70 indicates some mild symptoms, (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF from 51 to 60 is defined as 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 co-workers). Scores ranging from 41 to 50 reflect 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). DSM-IV, at 32; Richard v. Brown, 9 Vet. App. 266, 267 (1996). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather 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). Analysis The Veteran in this case was granted service connection for PTSD in an August 2007 rating decision, and a noncompensable rating was assigned. The Veteran took issue with this, and filed a notice of disagreement with the assigned rating. A subsequent decision, dated in June 2008, increased the Veteran's rating to 10 percent. The Veteran maintains that this rating does not adequately contemplate the severity of his PTSD symptoms. Specifically, the Veteran asserts that his disability picture is severe enough to warrant a 30 percent evaluation. Based on evidence of record, the Board concurs with the Veteran's assessment. There are two VA examinations of record which address the severity of service-connected PTSD. It is noted, for background purposes, that the Veteran served in combat in Iraq, serving several tours in that country prior to his discharge from active service in 2006. The Veteran reports intrusive thoughts of his time in Iraq, to include visualizations of combat coming to him in the form of recurrent nightmares. Throughout the pendency of his claim, he has reported having sleep problems due to these recurrent nightmares, which cause him fatigue and affect his concentration in a work environment. These complaints were relayed to the VA psychiatric examiner during his first VA examination of November 2006. The Veteran had, at that time, completed an Associate's degree and was looking for employment as a civilian on Ft. Benning in Columbus, Georgia. In addition to reporting his sleep problems, the Veteran stated that he was starting to notice a difficulty in communicating in social situations. He lived with his then-fiancée (he has since married her), and stated that he does not like to engage in social events with her as he once did. A GAF score of 54 was assigned. The Board, in a July 2009 remand order, determined that a new VA examination was necessary in light of the Veteran's complaints of a worsening condition. It is noted that additional VA records were obtained prior to the scheduled examination, and this included a June 2009 VA mental health clinical visit. During this visit, the Veteran reported being hypervigilant, and he again stated that he actively seeks to avoid social interactions. He was noted to be married, living with his wife, and that there were some communication problems due to his PTSD. The Veteran had a depressed mood, and his interaction with the treating physician was noted to be only "fair." A GAF of 54 was again assigned. In September 2009, the Veteran was again examined by VA providers in satisfaction of the July 2009 remand. In the associated report, the Veteran's symptoms were categorized as periods of irritability and anger, with a markedly diminished interest in participating in "significant activities." The Veteran was noted to have depression and problems sleeping, and he was assessed as feeling worried, exhibiting problems in concentration and hypervigilant behavior. A GAF of 65 was assessed, and the examiner stated that there were not decreases in reliability at work or in social functioning due to PTSD. This is somewhat confusing, as the Veteran reported that he felt his symptoms were growing more severe, and that the frequent nightmares caused him sleep difficulties which made it hard for him to focus on tasks at work. The examiner felt the PTSD was mild, and was not productive of even an occasional decrease in work performance. The Veteran has had GAF scores of 54 at two separate periods during the pendency of the claim, and they represent the most severe indications of his disability. In light of the fact that the Veteran would show a score almost 10 points higher three months after having a clinical visit for treatment purposes, the Board is not convinced that the September 2009 VA examination is the best representation of the Veteran's disability picture-he has maintained throughout the pendency of the claim that there is noticeable interference in his work functioning. Specifically, the Veteran maintains that he is fatigued at work due to poor sleep (as a result of recurrent nightmares), and that he sometimes has trouble focusing on tasks at work. This sleep disruption and concentration issues have been documented since the Veteran was first awarded service connection for PTSD, and it is certainly reasonable to believe that this affects the Veteran's work. Indeed, the Veteran does not assert that he cannot work, or even that there is a marked reduction in his reliability or productivity. Instead, he feels he is entitled to the 30 percent evaluation, as the fatigue causes him to have occasional problems performing work tasks. He also feels that the fatigue causes him to have trouble remembering instructions at his job, and this is something on which he is competent to report. The Board concludes that the Veteran's PTSD is severe enough to warrant the 30 percent rating. The Veteran is employed, is in a stable relationship, and has occasional difficulties in focusing on work tasks due to concentration and fatigue problems associated with PTSD symptoms. This is suggestive of occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran does not contend, nor does the evidence show, that there are problems in judgment or thinking, or that he has difficulty maintaining work relationships. He states that he does not like to go out and socialize; however, the evidence does not show him to be incapable of maintaining a social relationship. Indeed, although there are some communication issues in his relationship with his spouse, he is able to maintain a healthy relationship with her as well as a full-time job. The Veteran has not reported having panic attacks, and there are no issues with hygiene. The Veteran has no psychosis, is not suicidal, and has not been shown to have continual reduced reliability or productivity problems at work. As such, entitlement to a rating in excess of 30 percent is not warranted, and the 30 percent rating will be assigned. Id. It is further noted that there is nothing so unique to the Veteran's PTSD as to be considered outside of the norm, and the rating criteria in Code 9411 more than adequately contemplates the symptoms associated with his service-connected psychiatric disorder. As such, there is no need to consider further the application of an extraschedular rating. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); see also Thun v. Peake, 22 Vet. App. 111 (2008). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable for entitlement to a rating in excess of 30 percent, as the preponderance of the evidence is against that portion of the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to a 30 percent evaluation for PTSD is granted, subject to the statutes and regulations applicable to the payment of VA monetary benefits. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs