Citation Nr: 1121815 Decision Date: 06/06/11 Archive Date: 06/20/11 DOCKET NO. 10-21 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial evaluation, in excess of 30 percent, for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran had active military service from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio. In that decision, the RO awarded an initial rating of 30 percent for PTSD, effective from June 11, 2007. Because less than the maximum available benefit for a schedular PTSD rating was awarded the issue is properly before the Board. See Fenderson v. West, 12 Vet. App. 116 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Consequently, the Board will address whether a rating in excess of 30 percent is warranted. FINDING OF FACT The evidence of record shows that the Veteran has occasional depression, sleep impairment including nightmares, difficulty concentrating, some irritability and anger issues, and hypervigilance, exhibiting 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). CONCLUSION OF LAW The criteria for an initial evaluation for PTSD in excess of 30 percent have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2010); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in July 2007 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein. The letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. On March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board notes that the July 2007 letter provided this notice. The Board observes that the July 2007 letter was sent to the Veteran prior to the December 2008 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the notice provided in the July 2007 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2010), and Dingess, supra. Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2010). In this regard, the Veteran's service treatment, VA treatment records, and a VA examination report are associated with the claims folder. The Veteran was afforded a VA compensation and pension (C&P) examination in accordance with his claim in October 2008. 38 C.F.R. § 3.326(a) (2010). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture. See Schafrath v. Derwinksi, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2010). As noted below, the Board finds that the VA examination obtained in this case is more than adequate, as it is predicated on a full reading of the VA medical records. They consider all of the pertinent evidence of record, and provide a complete rationale for evaluations provided, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2010). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's PTSD. Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of assigning initial staged ratings for the Veteran's service- connected PTSD. See also, Hart v. Mansfield, 21 Vet. App. 505 (2007) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where 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. 38 C.F.R. § 4.7 (2010). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, as noted above, separate ratings can be assigned for separate periods of time based on the facts found, i.e., "staged" ratings. Fenderson v. West, supra; 38 C.F.R. § 4.2 (2010). For reasons discussed in more detail below, the Board finds that the competent evidence demonstrates that the Veteran's service-connected disability did not undergo an increase in severity sufficient to warrant a staged rating during the relevant appeal period. As such, the Board will discuss the Veteran's PTSD symptomatology in relation to the applicable rating criteria for the entire appeal period. The Veteran's PTSD is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). Under that diagnostic code a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2010). A 50 percent rating is assigned when there is evidence of 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 prescribed when there is evidence of 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, the evidence of record contains 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" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). GAF scores ranging between 61 to 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). 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). Scores ranging from 31 to 40 reflect 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 other children, is defiant at home, and is failing at school). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) (QRDC DSM-IV). The Board notes that GAF scores are just one component of the Veteran's disability picture, and that it does not have a "formula" that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. Under such circumstances Veterans with identical GAF scores may be assigned different evaluations based on each individual's symptomatology and level of functioning. Furthermore, the Board need not accept a GAF score as probative. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran meets the criteria for a 30 percent evaluation, but no more, for PTSD. The Board notes that the competent medical evidence of record, including the October 2008 VA psychological examination, characterized the Veteran's affect and mood as euthymic, and noted that the Veteran had some difficulty dealing with his military experiences. The Board observes that the examination report noted the Veteran had sleep problems as the result of nightmares, sometimes 2-3 times a week. The October 2008 VA examination report further noted that the Veteran reported an increase in anger and irritability as well as difficulty concentrating, and hypervigilance. The Veteran also exhibited a clear and focused thought process, excellent judgment, very good insight, above average intelligence, and a good sense of humor. The foregoing symptoms indicate a 30 percent disability rating and therefore the Board finds that a 30 percent disability rating is appropriate for the entire appeal period. As for evidence regarding work relationships, the Board notes that the Veteran is currently retired, but works part time as a zoning inspector. Until retirement the Veteran worked for approximately 25 years for the Ohio Highway Patrol, retiring as a district supervisor. The Board notes that the Veteran stated he was forced to retire because he had problems getting along with a superior, however until the very end, he had a very stable work history and was considered an excellent employee who was highly regarded. As such, the Board finds that the aforementioned symptomatology does not warrant greater than a 30 percent rating. With regard to the Veteran's social relationships, the Board notes that the Veteran has been married to the same woman for approximately 36 years. The Veteran reported that his wife was his best friend and had always been supportive of him. The Veteran reported a very solid marriage. Additionally, the Veteran reported that he was very close to his older brother and still maintains many friends with whom he regularly stayed in touch. The Veteran also reported that he and his wife participated in many community volunteer activities as they both like to help other people. The Board notes that the Veteran stated that he frequently worked on cars rebuilding engines since he retired. The Veteran also stated that he spent his leisure time gardening, taking care of horses, doing yard work, taking daily walks, and traveling with his wife. The October 2008 VA examination noted that the Veteran had an active social life with strong relationships with his wife, extended family, and friends. Indeed the October 2008 examiner noted that while the Veteran's PTSD affected his personal life through sleep problems, mood variations, and even his self-concept, there was no significant impairment to work, marriage, social, recreational, and leisure activities. As such, the Board finds that the aforementioned symptomatology does not warrant greater than a 30 percent rating. Additionally, the Board notes that the overall symptomatology associated with the Veteran's PTSD does not more closely approximate the schedular criteria required for the next higher 50 percent disability rating. The medical evidence does not show that the Veteran has experienced panic attacks more than once a week, has impairment of short or long term memory, impaired judgment, flattened affect, difficulty understanding complex commands, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, or impairment of abstract thinking with circumstantial, circumlocutory, or stereotyped speech. Rather, the October 2008 VA examiner noted that the Veteran exhibited no thought impairment, and no memory problems with very good insight and excellent judgment. The Board further observes that the next higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology most closely approximates a 70 percent evaluation or higher. The medical evidence does not show that the Veteran exhibits speech that is intermittently illogical, obscure, or irrelevant. Additionally, there is no evidence that the Veteran suffers from near- continuous panic or depression affecting the ability to function independently or spatial disorientation. While the Board observes that the October 2008 VA examiner noted that the Veteran does have some irritability and anger issues, there is no indication that the Veteran ever becomes violent. Additionally, there is also no indication that the Veteran neglects his personal hygiene or appearance. Lastly, the Veteran has not shown an inability to establish and maintain effective relationships as shown by his interactions with his wife, his extended family, and his friends. Finally, the Board observes that the competent evidence of record also does not demonstrate that the Veteran's symptomatology most closely approximates a 100 percent evaluation or higher. In this regard, the Board notes that the Veteran's medical records do not contain evidence which supports a finding that he has gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; persistent delusions or hallucinations; intermittent inability to perform activities of daily living; disorientation as to time or place; or memory loss for names of close relatives, own occupation, or own name. Additionally, the Board notes that the Veteran was assigned a GAF score of 80 by the October 2008 VA examiner. GAF scores ranging between 61 to 70 reflect that the Veteran has 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, and has some meaningful interpersonal relationships. With a GAF score of 80 the October 2008 VA examiner noted that the Veteran exhibited very mild symptoms. Upon review of the competent evidence, the Board finds that the GAF score of 80 is consistent with the medical evidence of record that addresses the Veteran's actual symptoms and level of functioning. Accordingly, such characterization does not more closely approximate the schedular criteria for a rating higher than 30 percent. In sum, the evidence of record demonstrates that the Veteran does have strong familial interactions, strong friendships, and successful working relationships. The record also demonstrates that he is able to function independently, and has no delusions, hallucinations, or cognitive impairment. He does, however, occasionally exhibit a somewhat depressed mood, some irritability and anger issues, and some sleep impairment due to occasional nightmares. Based on the foregoing, the Board finds that the Veteran's PTSD more closely approximates the criteria for a 30 percent rating for the entire appeal period and entitlement to an increased rating on a schedular basis is therefore unwarranted. Fenderson v. West, supra. Additionally, the Board acknowledges the Veteran's own statements that he is entitled to higher disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the ratings schedule. However, while the Board notes that the Veteran is competent to provide evidence regarding symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology. Such evidence must come from a medical professional. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Further, while the VA examiner did report that the Veteran's tests results and subjective experience of both his depression and his PTSD appeared to be greater than what was observed, the Board finds that there is no competent, credible and probative evidence that the criteria for a rating higher than that assigned is warranted. The evidence does not show that symptomatology associated with the Veteran's PTSD more nearly approximates the schedular criteria associated with a higher rating at any time relevant to the appeal period. Therefore the currently assigned 30 percent rating is appropriate for the entire appeal period. In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court held that the determination of whether a Veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry, beginning with a threshold finding that the evidence before VA "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." In other words, the Board must compare the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule for that disability; if the criteria reasonably describe the Veteran's disability level and symptomatology, then his disability picture is contemplated by the rating schedule. Id. The Board notes that there is no probative evidence of record that the Veteran's PTSD warrants a rating higher than 30 percent on an extraschedular basis. 38 C.F.R. § 3.321(b) (2010). Any limits on the Veteran's employability due to his PTSD have been contemplated in the above stated ratings under Diagnostic Code 9411. The evidence also does not reflect that the Veteran's PTSD has necessitated any frequent periods of hospitalization or caused marked interference with employment. Thus, the record does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant the assignment of an extraschedular rating. Indeed the October 2008 VA examiner notes that the Veteran currently has a part-time job as a zoning inspector and is retired from his job of 25 years with the Ohio Highway Patrol. Additionally, there is no evidence that the Veteran has ever been hospitalized for psychiatric reasons. Since application of the regular schedular standards is not rendered impracticable in this case, the Board is not required to refer this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2010) for consideration of the assignment of an extraschedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the assignment of an initial disability rating higher than 30 percent for the Veteran's service-connected PTSD. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an initial evaluation for PTSD, in excess of 30 percent, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs