Citation Nr: 1120426 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 10-00 132A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to an initial disability evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran had active service from February 1952 to February 1956. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2010, the Board remanded the issue of entitlement to an initial disability evaluation in excess of 30 percent for PTSD for further development. That development now having been completed, adjudication may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board believes that a claim for a total evaluation based on individual unemployability due to service connected disabilities has been raised by the record, but this claim has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over this matter, and it is referred to the RO for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's PTSD manifests occupational and social impairment with reduced reliability and productivity, but is not productive of occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood. CONCLUSION OF LAW The criteria for an initial disability evaluation of 50 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.125-4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in January 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd. on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Goodwin v. Peake, 22 Vet. App. 128 (2008). The RO also provided the assistance to the Veteran required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this regard, the Board notes that no VA treatment records or private treatment records were obtained because he did not identify any such records. See 38 U.S.C.A. § 5103A(b). He instead submitted psychological evaluations performed by a private treatment provider on his own behalf. The Veteran additionally was afforded a VA PTSD examination, in accordance with the Board's June 2010 remand, which is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining medical examination adequacy as providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). Finally, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the appeal. The Veteran seeks an initial disability evaluation higher than 30 percent for his PTSD. He contends that this rating does not contemplate the severity of his symptoms. Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for specific ratings for the disabilities. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. The evaluation assigned is determined by comparing the extent to which a Veteran's service-connected disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the schedule of ratings. Id.; 38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. If two disability evaluations potentially are applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. VA shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. When an appeal arises from an initially assigned rating, as is the case here, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must assess the probative value of all the evidence, including medical evidence. The weight and credibility of evidence may be discounted "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Pursuant to this regulation, a 30 percent evaluation 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, and mild memory loss (such as forgetting names, directions, recent events). 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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. The highest rating of 100 percent rating is not warranted unless 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The aforementioned symptoms 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). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect his level of occupational or social impairment. Id.; 38 C.F.R. § 4.126. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). GAF scores ranging from 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores from 51 to 60 are indicative of 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). GAF scores 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). Scores from 31 to 40 indicate impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the VA disability rating assigned. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995). Use of terminology such as "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, also is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a percentage disability rating. 38 C.F.R. §§ 4.2, 4.6, 4.126. Although all the evidence has been reviewed, the Board notes at the outset that only the most salient and relevant evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran reported symptoms including numerous sleep problems, fatigue and loss of energy, markedly diminished interest and participation in significant activities, feelings of detachment and estrangement from others, irritability and angry outbursts, concentration problems, cognitive difficulties, and a history of panic attacks at his December 2007 psychological evaluation performed by W.A. Psy. D. He admitted that he and his wife had had occasional arguments during their nearly 50 years of marriage, but otherwise indicated that the relationship was enjoyable. He described his relationships with his seven surviving children and grandchildren who live out-of-state and/or overseas as excellent. Upon assessment, psychomotor agitation was highly evident in the Veteran. He was oriented to person, place, and time. His speech was normal in terms of manner and content but was circumstantial. His attitude was pleasant, and he was easily engaged. The Veteran's affect was normal, stable, and appropriate at all times. His mood was "blank, total blank." His attention, ability to concentrate, judgment, insight, immediate memory, and memory for recent past events fell below normal limits. However, his memory for recent events and impulse control were within the average range. The Veteran's remote memory was intact. His form of thought was remarkable for circumstantiality but his thought content was normal. Suicidality, homicidality, and perceptual abnormalities were not found. A GAF score of 57 was assigned by W.A. She opined that the Veteran's PTSD symptoms were severe. She further opined that in addition to social and work-related functional impairment in the form of significant cognitive difficulties, the Veteran's emotional and behavioral control problems as evidenced by his history of angry outbursts likely render him "a danger to any work environment." W.A. conducted a second psychological evaluation in May 2009 (the supplied date of May 2007 is incorrect). In addition to the symptoms complained of previously, the Veteran complained of a sense of a foreshortened future as evidenced by possessing no goals and "biding time." The Veteran was oriented to person, place, and time upon assessment. His speech was normal in terms of manner and content. His attitude was pleasant, and he was easily engaged. The Veteran's affect was normal, stable, and appropriate at all times. His mood was "good." His attention and concentration abilities were within normal limits. However, his immediate memory, memory for recent events and recent past events, judgment, and insight were below normal. The Veteran's remote memory was intact. His thought form and content were normal. Suicidality, homicidality, and perceptual abnormalities were not found. As a result of the above, W.A. assigned a GAF score of 48. She noted that the results of this assessment were highly consistent with the results of the previous assessment. A third psychological evaluation of the Veteran was performed by W.A. in July 2010. In addition to his previously reported symptoms, he reported trying to stay emotionally numb, becoming quite moody, losing his patience quickly, being suspicious, having passive suicidal ideation, and consuming at least six beers per day. The Veteran's wife indicated that he often did his drinking in a bar with his "buddies," had sleep problems, and manifested anger toward her by withdrawing and discontinuing communication. Upon assessment, the Veteran was oriented to person, place, and time. His speech was normal in terms of manner and content. His attitude was pleasant, and he was easily engaged. The Veteran's affect was somewhat blunted though appropriate at all times. His mood was "couldn't care less." His remote memory was intact, and his immediate memory and memory for recent past events were normal. However, his ability to concentrate, attention, memory for recent events, judgment, and insight were below normal limits. The Veteran's thought form was normal, but thought content was remarkable for passive suicidal ideation. Active suicidality, homicidality, and perceptual abnormalities were not found. W.A. assigned a GAF score of 48. She noted that the Veteran had significantly increased depressive symptoms, which were likely associated with his recent diagnosis of cancer, and opined that all of his PTSD symptoms were severe. At his January 2011 VA PTSD examination, the Veteran complained of depression, detachment from others, irritability, several problems with sleep, low energy and feeling tired most of the time, doing little during the day, restlessness and palpitations at times from his defibrillator, and drinking six to 12 beers per day. He denied violence/assaultiveness and a history of suicide attempts. The Veteran indicated that he had been married for 52 years and described the relationship with his wife as supportive despite stress over his drinking. He also indicated that he keeps in contact with his surviving children. He further indicated that he drinks in a bar with friends at least every other day but otherwise is socially inactive. The Veteran denied having hobbies, stating that he "never had time." With respect to employment, he noted that he was a truck driver but retired at age 73. The Veteran was found to be able to maintain minimum personal hygiene because he was clean and neatly groomed upon assessment. Fatigue was noted in his psychomotor activity. He was oriented to person, place, and time. His speech was clear and coherent. His attitude was cooperative, friendly, and pleasant. The Veteran's affect was appropriate and full, and his mood was good. His attention was intact. His remote and immediate memory were normal, but his recent memory was mildly impaired. The Veteran's thought process was unremarkable. Regarding thought content, he denied having thoughts bothering him at the time but indicated that he becomes anxious in elevators, cannot sit in the back seat of a car, and occasionally has health issues come to mind. The anxiety was determined to be mild claustrophobia. No suicidal or homicidal thoughts were present. There also were no hallucinations, delusions, inappropriate behavior, or obsessive/ritualistic behavior. The restlessness and palpitations described by the Veteran in relation to his defibrillator were noted not to meet the criteria for a panic attack. In regard to judgment, the Veteran was able to understand the outcome of his behavior. In regard to insight, he partially understood that he has a problem. His impulse control was good, as there were no episodes of violence. There was sleep impairment. Given this assessment, the examiner assigned a GAF score of 55. She opined that the Veteran's PTSD symptoms were mild and transient and resulted in a decrease of his work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner then opined that there was not an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, reduced reliability and productivity, occupational and social impairment resulting in deficiencies in most areas, or total occupational and social impairment due to the Veteran's PTSD symptoms. Finally, she opined that these symptoms would cause some difficulty, but would not prevent, the Veteran from being employed. The Veteran indicated his dissatisfaction with his January 2011 VA PTSD examination in a statement dated in April 2011. Specifically, he asserted that the manner in which questions were posed showed that the examiner was biased against him. The Veteran next clarified that he does drink several times a week and discusses various topics including war then, that he had to give up working in Ohio to move to Florida because of his panic attacks from snow and ice, that he suffers from depression and a host of sleep problems. Based on the above, the Board finds that the Veteran's PTSD most closely approximates the criteria for an increased initial disability rating of 50 percent. A few of the criteria listed in Diagnostic Code 9411 for this rating are not met. Just as many of the criteria are met, however, and the evidence regarding the remaining criteria is in relative equipoise. There has been no showing that the Veteran has difficulty understanding complex commands. There also has been no showing that his suffers from flattened affect. Rather, it was characterized as blunted on one occasion and as full, normal, stable, and appropriate on all other occasions. No evidence exists that the Veteran has panic attacks more than once a week. He did report restlessness and palpitations in relation to his defibrillator once and anxiety in elevators once. However, the restless and palpitations specifically was noted not to meet the criteria for a panic attack and the anxiety was determined to be mild claustrophobia. He also reported a history of panic attacks once and moving from Ohio to Florida because of panic attacks from snow and ice. Yet no information was supplied regarding whether any such attacks persisted after he moved to Florida into the period on appeal and, if so, their frequency. In contrast, the record is rife with findings that the Veteran has impaired short-and long-term memory as well as impaired judgment. His remote memory was found at all times to be intact or normal, but his immediate memory twice was below normal. His recent memory, to include for events and for past events, was below normal limits or mildly impaired on all occasions with the exception of one. His judgment similarly was below normal except on one occasion when he was noted to be able to understand the outcome of his behavior. With respect to disturbances of motivation and mood, the Veteran reported markedly diminished interest and participation in significant activities, no hobbies, doing little during the day, and becoming quite moody. His mood was described as good twice, but additionally was described as "blank, total blank" and "couldn't care less." There is some indication that the Veteran's has circumstantial, circumlocutory, or stereotyped speech. It was circumstantial once despite otherwise being normal in terms of manner and content as well as clear and coherent. There further is some indication of impaired abstract thinking. The Veteran reported cognitive difficulties. Although his form of thought or thought processes usually was normal and unremarkable, circumstantiality was found on one occasion. Finally, there is some indication that the Veteran has difficulty in establishing and maintaining effective work and social relationships. He related that he is retired. He also related that he had supportive and/or excellent relationships with family members such as his wife, seven surviving children, and grandchildren. He additionally related that he drinks in a bar with friends frequently, which his wife indicated were "buddies." Yet the Veteran noted that he otherwise is socially inactive. He indeed complained of detachment and estrangement from others as well as trying to stay emotionally numb. Considering the Veteran's symptoms as a whole, the examiner who conducted the Veteran's January 2011 VA PTSD examination opined that his PTSD symptoms were mild and transient and did not result in reduced reliability and productivity. However, W.A. first opined that the Veteran's PTSD symptoms were severe, second noted consistency in his symptom severity, and finally opined again that they were severe. Given the VA examiner's opinion and W.A.'s opinions, the benefit of the doubt on this issue is afforded to the Veteran. The Board therefore finds that his PTSD symptoms are more severe than mild. This finding supports a finding that a 50 percent rating is warranted. The Veteran additionally has been assigned GAF scores of 57, 48, 48, and 55. Each is indicative of moderate to serious symptoms and moderate difficulty to serious impairment in functioning. Such symptoms and difficulty/impairment in functioning is significant and akin to the criteria for the assignment of a 50 percent disability rating. Consideration has been given to whether an initial disability evaluation higher than 50 percent for the Veteran's PTSD is warranted. However, the evidence of record does not reveal occupational and social impairment with deficiencies in most areas or total occupational and social impairment. Most, if not all, of the criteria listed in Diagnostic Code 9411 for a 70 percent disability rating indeed are not satisfied, while none of the criteria listed therein for the maximum 100 percent disability rating are satisfied. An indication, albeit weak, of impaired impulse control exists. The Veteran reported irritability and angry outbursts. Yet he denied violence/ assaultiveness and the only finding directly on point was that his impulse control was good. With respect to near-continuous panic or depression, the Board notes that panic has been discussed above. Depressive symptoms were present in the Veteran, but neither W.A. nor the VA examiner noted them to be so significant as to affect his ability to function independently, appropriately, or effectively. There has been no showing of spatial disorientation, neglect of personal appearance and hygiene, an intermittent inability to perform activities of daily living, memory loss for own name or occupation or the names of close relatives, or speech that is intermittently illogical, obscure, or irrelevant. The Veteran specifically was found not to manifest disorientation to time and place, active suicidal ideation, homicidal ideation, obsessive/ritualistic behavior, inappropriate behavior, hallucinations, or delusions. He also specifically was found to be able to maintain minimum personal hygiene. For each of the foregoing reasons, the Board finds that the preponderance of all of the evidence supports, at most even considering the benefit of the doubt, the grant of an initial 50 disability evaluation for the Veteran's PTSD. This finding applies to the entire period on appeal, rendering staged ratings inappropriate. The above determination granting an increased initial disability rating of 50 percent for the Veteran's PTSD is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. No indication exists that referral is warranted for consideration of the assignment of an evaluation for this disability on an extraschedular basis. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the evidence presents such an exceptional disability picture that the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. There has been no showing that the Veteran's PTSD disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's symptoms, which together show his level of disability, were evaluated using these criteria and associated statutes, regulations, and caselaw. Higher ratings are provided for by the criteria, but, as explained above, the currently assigned rating adequately describes the nature, extent, and severity of the Veteran's disability. Given that the applicable schedular rating criteria are adequate, the Board finds that the Veteran does not manifest an exceptional PTSD disability picture. Discussion of whether he exhibits related factors such as marked interference with employment or frequent periods of hospitalization therefore is unnecessary. Further, referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Subject to the provisions governing the award of monetary benefits, an initial disability evaluation of 50 percent for PTSD is granted. ______________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs