Citation Nr: 1121297 Decision Date: 06/01/11 Archive Date: 06/09/11 DOCKET NO. 06-27 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1955 to September 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In September 2010, the Board remanded the Veteran's claim for an increased rating for PTSD for additional development. The VA Appeals Management Center (AMC) issued a supplemental statement of the case in March 2011, which denied the Veteran's claim for a rating greater than 50 percent for his service connected PTSD. The case is once again before the Board. As an initial matter, when the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board remanded this claim to the AMC in September 2010 in order to obtain the Veteran's records from the Los Angeles Veterans Center, to obtain the Veteran's outstanding VA medical treatment records, and to provide the Veteran with a VA psychiatric examination. Pertinent records have been obtained, and the Veteran was afforded a VA psychiatric examination in September 2010. All of these records have been associated with the Veteran's claims file. The AMC, therefore, effectively complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) The record reflects that the Veteran's representative raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability. The RO granted this total disability rating. There is therefore no issue relating to total disability for the Board to either refer to the RO or consider itself. Please note 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 service-connected PTSD is manifested by difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, and impairment of short-term memory. CONCLUSION OF LAW The criteria are not met for an evaluation in excess of 50 percent for service-connected PTSD. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability); (2) VA will seek to provide; and (3) the claimant is expected to provide. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Quartuccio at 187. Notice should be provided at the time that VA receives a completed or substantially complete application for VA-administered benefits. See Pelegrini v. Principi, 18 Vet. App. 112 at 119 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). This timing requirement applies equally to the initial disability rating and effective date elements of a service connection claim. See Dingess. The Board finds that the VCAA letters sent to the Veteran in July 2004 and February 2005 essentially complied with the statutory notice requirements outlined above. VA notified the Veteran of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Notice of the disability rating and effective date elements was not provided until August 2006, after the initial rating decision. The claim was thereafter readjudicated in a supplemental statement of the case, thereby curing any deficiency in the timing of the notice. VA has also satisfied its duty to assist the Veteran. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Veteran's service treatment records and VA treatment records have been associated with the claims folder. Additionally, VA has provided the Veteran with two VA psychiatric examinations. These VA examinations are adequate because they indicate that the examiners considered the Veteran's medical history, reviewed the Veteran's documented medical history, provided clinical findings, diagnoses, and opinions supported by medical rationale. Given the foregoing, there is no basis to find that these reports are inadequate, or that a remand for another opinion is required. See 38 C.F.R. § 3.159(d) (2010); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board notes that the adequacy of these examinations have not been challenged by either the Veteran or his representative. Additionally, VA afforded the Veteran an opportunity to appear for a hearing, which the Veteran declined. The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the Veteran, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Lastly, the Board notes that no action is necessary to comply with VA's duties to notify and assist are not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Schedular Analysis The Veteran contends that his service-connected PTSD is more severely disabling than the current 50 percent evaluation. VA determines disability evaluations by applying a schedule of ratings, which represents for each disability an average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2010). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2010). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2010). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Additionally, factual findings may show distinct time periods when the service-connected disability exhibited symptoms that would warrant different ratings for different periods of time; in such a case, so-called "staged" ratings are appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In the instant case, the Veteran's PTSD is rated under Diagnostic Code 9411 of the pertinent regulation. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). This diagnostic code is the most appropriate because it pertains specifically to the primary service-connected disability: PTSD. In any event, with the exception of eating disorders, all mental disorders, including PTSD, are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. The relevant criteria for evaluating PTSD are as follows: A 50 percent rating is appropriate for: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing effective work and social relationships. A 70 percent rating is appropriate for: 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 that 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); and an inability to establish and maintain effective relationships. A 100 percent rating is appropriate 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 and place; memory loss for names of close relatives, own occupation or name. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). When evaluating a mental disorder, the rating agency must 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 must 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. When evaluating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but it cannot assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2010). The Board notes that the specified factors for each incremental rating are examples rather than requirements for a particular rating, and the Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating scheme. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Also relevant to the Board's analysis is the Global Assessment of Functioning (GAF) assigned to the Veteran, which is a scale that reflects 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) (DSM-IV). While the veteran's GAF score is not itself determinative of the most appropriate disability rating, the Board must consider it when evaluating the appropriate disability rating for the veteran. See VAOPGCPREC 10-95. Descriptions of the relevant GAF ranges are as follows: A GAF score ranging from 31 to 40 reflects some 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; child frequently beats up younger children, is defiant at home, and is failing at school) A GAF score ranging from 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score ranging from 51 to 60 reflects 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). DSM-IV, pp. 46-47. See 38 C.F.R. § 4.130 (2010) (incorporating by reference the provisions of the DSM-IV for rating purposes.) In addition to the Veteran's service-connected PTSD, the Veteran's treatment history contains a diagnosis of non-service connected mental disorders, characterized as Bipolar II Disorder and substance abuse. The Board is precluded from differentiating between symptomatology attributed to a non- service connected disability and a service connected disability in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The medical evidence in the instant case does not differentiate between the symptomatology associated with the Veteran's PTSD and that resulting from his Bipolar II Disorder and substance abuse. Further, no mental health professional has attempted to distinguish between said symptomatology. Accordingly, for the purpose of this decision, the Board will attribute all of the Veteran's psychiatric symptoms to his service connected PTSD. The Board now turns to an evaluation of the relevant medical evidence in the Veteran's case. A December 2010 letter from the VA's Readjustment Counseling Service reports that the Veteran has attended weekly group sessions in order to increase his ability to manage his PTSD symptoms. The letter indicates that the Veteran has experienced irritability, anger, social withdrawal, and difficulty expressing emotions, all of which have left him feeling disconnected from his family. The Veteran has endorsed finding no interest in pleasurable activities. The Veteran reported being easily startled awake from sleep. The Veteran reported memory problems and difficulty with concentration. The Veteran's social worker assigned the Veteran a GAF score of 49, which is indicative of serious symptoms. The Veteran's most recent VA examination occurred in September 2010. The Veteran noted that he had been receiving psychiatric treatment at a VA medical hospital since 2005. The examiner noted that the Veteran's affect was appropriate, and that his speech was unremarkable, spontaneous, clear, and coherent. The examiner further noted that the Veteran was clean, neatly groomed, and casually and appropriately dressed. While the Veteran's attitude was cooperative, friendly, and relaxed, the Veteran's mood was depressed. The Veteran's attention was intact, and the Veteran was oriented to person, time, and place. The Veteran's thought process and thought content were unremarkable, and he was not delusional. The Veteran understood the outcome of his behavior and understood that he had a problem. The Veteran reported having a sleep impairment, with difficulties falling asleep and staying asleep despite the use of medications. The Veteran did not suffer from hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, or homicidal thoughts. The Veteran had intrusive thoughts of suicide but had no intent or plan to commit suicide. The Veteran exhibited good impulse control, reported no episodes of violence, had the ability to maintain minimum levels of personal hygiene, and had no problems with activities of daily living. The Veteran's remote, recent, and immediate memory were all moderately impaired, and the Veteran worried that he might be developing dementia. The Veteran reported that his irritability and anger caused social impairment and occupational impairment. The Veteran's spouse died in 2000 and he never remarried; he reported having two grown sons with whom he enjoyed a close relationship. He reported having a few acquaintances with whom he played golf weekly until his hip began bothering him three months earlier. The examiner diagnosed PTSD in Axis I and assigned a GAF of 51, which is indicative of moderate symptoms. The Veteran received one previous examination for VA purposes in May 2005. The examiner noted that the Veteran was well groomed and well dressed, and while he was initially irritable with the examiner, the Veteran was cooperative generally. The Veteran's rate and flow of speech was relevant and logical, with no obscure speech patterns. The Veteran's thought processes were linear, logical, and goal directed. The Veteran suffered from flashbacks, but had no suicidal or homicidal ideations. The Veteran's insight and judgment were fair. The Veteran's behavior was appropriate. The Veteran was alert and oriented to time, place, person, and the reason for the examination. The Veteran had no memory loss or impairment. The Veteran had no panic attacks or obsessive or ritualistic behaviors that interfered with routine activities. The Veteran did not complain of a depressed mood, but he did complain of irritability. The Veteran's abstract thinking was unimpaired, but his concentration was poor. The examiner diagnosed PTSD in Axis I and assigned a GAF of 55, which is indicative of moderate symptoms. The Board has additionally reviewed the Veteran's VA psychiatric treatment records. These records are generally consistent with the findings of the above VA examinations, but, notably, they additionally indicate that the Veteran has periodically experienced auditory and visual hallucinations. Specifically, the clinician noted that the Veteran has experienced an auditory hallucination of "people trying to kill [him]" and a visual hallucination of "see[ing] the dead soldiers when [he] close[s his] eyes." In addition, the Board has reviewed the Veteran's lay evidence in support of his case. Specifically, the Board has taken note of the August 2006 statement that the Veteran submitted with his substantive appeal, in which the Veteran indicated that he has "no contact" with his extended family. The Veteran indicated that while he "hardly ever" thought about suicide, the Veteran entertained fantasies about the police killing him after the Veteran killed people who had "wronged [him] in the pas[t]." The Veteran also described attempting to choke a girlfriend in the past. After a thorough review of the evidence, the Board finds that the VA examination reports, VA treatment records, and lay statements indicate that the impact of the Veteran's PTSD on his social and industrial functioning is most congruent with the currently-assigned 50 percent evaluation. Although the Veteran does not have all the symptomatology consistent with the assignment of a 50 percent rating, the Board finds that the impact of the Veteran's PTSD on his social and occupational functioning sufficiently approximates the degree of impairment contemplated by a 50 percent rating. See 38 C.F.R. § 4.7 (2010). Criteria for the assignment of a 50 percent rating that have been met or approximated include difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, and impairment of short-term memory. In making this determination, the Board has also considered the Veteran's GAF scores of record. During the appeal period, the Veteran has been assigned GAF scores ranging from 35 to 60. Evaluating these scores in conjunction with the above-discussed treatment and examination notes, the Board finds that these GAF scores are consistent with a 50 percent rating of the Veteran's PTSD. The Board acknowledges that the record contains evidence of certain elements of a 70 percent rating, but the Board concludes that the Veteran's overall disability picture is not most congruent with a 70 percent rating. Specifically, the Board notes that the Veteran has expressed suicidal ideation: for example, the Veteran's September 2010 VA examination report indicated that while the Veteran had never attempted suicide, he suffered from intrusive thoughts of suicide. Additionally, the Veteran's reports of periodic irritability and anger arguably suggest that the Veteran has occasional impaired impulse control. The record does not demonstrate, however, that the Veteran suffers from obsessional rituals that 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. The Veteran does not suffer from spatial disorientation, and he does not neglect his personal appearance or hygiene. The Veteran is not unable to establish and maintain effective relationships. To the contrary, the Veteran's September 2010 examination indicated that the Veteran reported having good relationships with his two adult sons. Until his hip began bothering him approximately three months earlier, the Veteran enjoyed good social relationships with a few friends with whom he played golf. For these reasons, the Board finds that while the record contains a few elements of a 70 percent rating, a 70 percent rating of the Veteran's PTSD is not appropriate in the instant case. With respect to a 100 percent disability rating, the record does not indicate that the Veteran suffers from total occupational and social impairment. To the contrary, as noted above, the Veteran enjoys good relationships with his adult sons. The record does not demonstrate any gross impairment in thought processes or communication, grossly inappropriate behavior, or the persistent danger of hurting himself or others. The Veteran has not demonstrated an intermittent inability to perform the activities of daily living, including maintenance of minimal personal hygiene. The record reveals no disorientation to time and place, and the Veteran has not shown memory loss for his occupation, his own name, or those of his close relatives. While the Veteran's VA treatment records suggest that the Veteran may have experienced both visual and auditory hallucinations, the record does not indicate that such hallucinations have been persistent; the record is additionally negative for any delusions. In light of the foregoing, the Board concludes that while the Veteran demonstrates a few of the criteria for a 70 percent disability rating and arguably one of the criteria for a 100 percent disability rating, the evidence of record does not show that the Veteran's overall level of severity more closely approximates the criteria for a 70 or 100 percent disability rating than a 50 percent rating. See 38 C.F.R. § 4.130 (2010). Moreover, there are no other factors which would lead the Board to conclude that a 70 or 100 percent disability rating is warranted. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (noting that the specified factors for each incremental rating are examples rather than requirements for a particular rating; analysis should not be limited solely to whether the veteran exhibited the symptoms listed in the rating scheme.) A review of the medical evidence indicates that the Veteran's psychiatric symptomatology centers on his depression, irritability, nightmares, hypervigilance, disturbances of mood and motivation, and difficulty establishing work and social relationships. These symptoms are most congruent with the assigned 50 percent disability rating. The Board finds that there is no basis for a staged rating of the Veteran's PTSD because the Veteran's disability picture is essentially uniform throughout the appeal period. See Fenderson and Hart, supra. Extra-Schedular Considerations In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. 22 Vet. App. 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate. Higher ratings are available for PTSD, but, as discussed above, the Veteran does not meet those criteria. It does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplate by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Referral for extra-schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra-schedular consideration is moot. See Thun, supra. ORDER Entitlement to an increased initial rating for PTSD is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs