Citation Nr: 1122204 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 09-44 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a higher initial disability evaluation for posttraumatic stress disorder (PTSD), rated 30 percent disabling. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Associate Counsel INTRODUCTION The Veteran had active service from October 1948 to October 1952, including service during Korean War, and his decorations include the Korean Service Medal. This matter came before the Board of Veterans' Appeals (BVA) on appeal from an April 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This rating action granted service connection for PTSD and assigned an initial 30 percent disability evaluation, effective November 17, 2008. The Veteran submitted a timely May 2009 notice of disagreement with the disability evaluation assigned and perfected a timely appeal, in a November 2009 Appeal to Board of Veterans' Appeals (VA Form 9). In April 2011, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ), who was designated by the Chairman to conduct the hearings pursuant to 38 U.S.C.A. § 7102(b) (West 2002 & Supp. 2010) and who participated in this decision. A transcript of this proceeding has been associated with the claims file and was considered on appellate review. The Veteran submitted additional statements regarding the nature and severity of his PTSD after the most recent March 2011 Supplemental Statement of the Case; however, he also submitted a signed statement waiving review of this evidence by the agency of original jurisdiction, eliminating the need to refer the evidence received directly by the Board to the RO. 38 C.F.R. § 20.1304 (2010). 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). FINDINGS OF FACT 1. Since November 17, 2008, the Veteran's PTSD was productive 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. 2. Since November 17, 2008, the Veteran's PTSD was not manifested by 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; near- continuous depression affecting his ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); and difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for an initial schedular disability rating of 50 percent, and no more, have been met, since November 17, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). However, in the present matter, the claim for a higher disability evaluation for PTSD arises from the initial grant of service connection. As this is an appeal arising from the initial grant of service connection, the notice letters that were provided to the Veteran in November 2008 and January 2009, before service connection was granted, were legally sufficient and no further notice under the VCAA is necessary. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that all necessary development of evidence has been completed. VA has obtained the Veteran's service, VA and private treatment records, and he has been afforded appropriate VA examinations. Further, the request for a Board hearing has been honored. It is recognized that at his hearing before the undersigned, it was argued that VA should attempt to obtain ship's logs relating to the Veteran's service at sea. While the Board bears in mind the holding of Moore v. Shinseki, 555 F.3d 1369, 1373 (2009), that service department records cannot be found to lack relevance merely because they pre-date the period for which disability compensation is sought, the Board also finds, based on the testimony and argument before the undersigned, that any surviving ships logs could do no more than generally document the experiences the Veteran currently re-experiences as part of his PTSD. The Board finds that these experiences are adequately documented in the Veteran's testimony, written statements, and the medical records on file. There is no need to further delay appellate review in this case, which the Board has already advanced on its docket for good cause. See also Golz v. Shinseki, 290 F.3d 1317 (Fed. Cir. 2010). Therefore, the Board finds that VA need take no additional efforts to obtain ships logs and, VA does not have notice of any additional relevant evidence not of record. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Thus, VA has made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance with the development of evidence is required. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that a presiding Veterans Law Judge, to include AVLJs, who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, although the undersigned AVLJ did not expressly note each of the elements that were felt by the RO to be lacking to substantiate the claim for a higher initial disability evaluation, the claim is allowed to the requested extent, a 50 percent rating, below. Moreover, the AVLJ noted the issue under review and sought to identify any pertinent evidence which may have been overlooked. Additionally, the Veteran's service organization representative demonstrated actual knowledge of such elements, by the questions posed and the arguments advanced on the Veteran's behalf. As such, the Board finds that, consistent with Bryant, it has complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that it may adjudicate the claim based on the current record. Applicable Regulations By way of background, an April 2009 rating decision granted the Veteran service connection for PTSD, assigning a 30 percent disability evaluation, effective November 17, 2008, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran expressed disagreement with this initial disability evaluation and perfected the present matter on appeal. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In 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. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Here, the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See 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, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diagnostic Code 9411 provides for the following disability evaluations for psychiatric disabilities. A 50 percent disability rating is warranted if it is productive 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. 38 C.F.R. § 4.130. A 70 percent disability rating contemplates 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; obessional 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. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Background The evidence of record includes a January 2009 Vet Center psychological evaluation. At this evaluation, the Veteran reported experiencing recurrent nightmares, flashbacks and slight disorientation. Further, the Veteran detailed being irritable and having difficulties associated with falling asleep and concentrating. Nonetheless, the Vet Center medical professional indicated that the Veteran maintained consistent and gainful employment for some 40 years, prior to retiring in 1992. The psychological evaluation also reports the Veteran's status as the primary caregiver for his spouse and his ability to maintain their marital household. Upon performing a mental status evaluation, the Vet Center medical professional detailed the Veteran's restricted affect, "tremendous amount of survivor's guilt" and avoidant behaviors; however, no other deficits were noted. The Veteran was noted as having a Global Assessment of Functioning (GAF) for 45. A March 2009 VA examination is also of record. During the examination interview, the Veteran endorsed having nightmares, an impaired ability to sleep, intrusive thoughts, "some depression," and becoming more isolative. The Veteran, however, denied any violent behavior/ideation, panic attacks or history of employment difficulties. What is more, the VA examiner recorded the Veteran's account of positive relationships with his spouse, children and friends. On mental status examination, the Veteran's mood was depressed/anxious, his affect "constricted and almost blunted," and his speech "somewhat underproductive," but no other deficits were noted. Based on the Veteran's account of symptoms, current examination findings and his relevant medical history, the VA examiner indicates that the Veteran presented some isolative behavior and detachment from others; however, his psychiatric symptoms would not prevent him from adequate employment. The Veteran's GAF was 64. Also of record is a June 2009 statement from a Vet Center medical professional. The Vet Center medical professional details the Veteran's psychiatric treatment history and the difficulties PTSD symptoms presented with these efforts. Further, this statement conveys the Veteran's decreased productivity and reliability, as the primary caretaker for his spouse, because of his PTSD related sleep impairment and nightmares. VA provided the Veteran another examination, in March 2010. This examination reflects the Veteran's continued account of flashbacks, mood swings, nightmares and sleep impairment, causing him to sleep apart from his wife. The examination report also details the Veteran's heightened startle response, hypervigilance and avoidance/isolative behavior. Further, although he reported feeling irritated, estranged and detached from others, the Veteran indicated he had a stable relationship with his wife, a good relationship with his son and a very close relationship with his sisters. On mental status examination, the Veteran's mood and affected ranged between blunted and depressed, with no other deficits noted. Ultimately, the VA examiner opined that PTSD symptoms did not prevent the Veteran from maintaining full independence with regard to all activities of daily living or prevent employment. The Veteran's GAF was 49. At the hearing before the undersigned in April 2011, the representative argued that the most accurate and persuasive of the above GAF ratings was 49, the most recent, which, he felt, was consistent with the early GAF rating of 45 and showed a clear downturn from the occasion of the one-time GAF of 64. The representative requested a 50 percent rating. The Veteran confirmed that he reexperienced the traumatic stressful conditions of his service, which were discussed in brief, and became visibly upset by discussing his service and his PTSD. In addition to the evidence detailed above, many other relevant pieces of evidence, both medical and lay, have been associated with the claims folder. Although the Board has not detailed each of these pieces of evidence, the evidence of record is generally consistent with the findings highlighted above and has been reviewed and considered, in evaluating the Veteran's present claim. Analysis Based on the evidence of record, at this time, the Board finds that the Veteran's disability picture, for the entire period under review, most closely approximates a 50 percent disability rating, and no more. Initially, the Board finds the Veteran's April 2011 sworn testimony and his numerous statements to be competent and credible with respect to PTSD related symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the other competent and credible evidence of record confirms that the Veteran has continually presented a flattened/restricted affect, as noted in a January 2009 Vet Center psychological evaluation and March 2009 and March 2010 VA examinations. The January 2009 Vet Center psychological evaluation, documents the Veteran's repeated account of intrusive PTSD related thoughts and "tremendous amount" of survivor guilt and that he is "still grieving" for those soldiers who lost their lives. Additionally, at the March 2010 VA examination, the Veteran's mood swings and irritability continued to present mood related impairments/deficits. The evidence of record also confirms the Veteran's irritability, isolative behaviors and frequent, but less than constant, periods of depression, to include the January 2009 Vet Center psychological evaluation and March 2009 VA examination. Further, the June 2009 statement from the Vet Center medical professional clearly documents the Veteran's decreased reliability and productivity with respect to caring for his spouse. In light of the aforementioned factors and other relevant evidence of record, the Board finds that, during the pendency of the present appeal, the Veteran's PTSD symptomatology most closely approximates a 50 percent disability rating, and no more. Nonetheless, the preponderance of the evidence show that the Veteran is not entitled to a 70 percent disability evaluation. The evidence of record confirms that the Veteran has not endorsed any suicidal or homicidal ideation. Further, the evidence shows that his PTSD symptomatology has not resulted in any obsessive/ritualistic behavior(s) and/or constant depression or panic symptomatology. What is more, while the evidence of record confirms the Veteran's irritability and isolative behavior, there is no evidence that he has ever demonstrated any impairment in impulse control, to include any unprovoked irritability or violence. Additionally, the Veteran has continually reported having positive relationships with his wife, children, sisters and friends, indicating his ability to establish and maintain effective relationships. During the period under review, the Veteran has also been the primary caregiver for his spouse and been able to perform, without any noted impairment, the activities of daily living. Thus, the Board finds that there is insufficient evidence of record as to warrant assignment of a 70 percent schedular disability evaluation. Extraschedular Considerations Additionally, the Board has considered whether the Veteran's claims warrant referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. The Board finds that the rating criteria contemplate the Veteran's level of the Veteran's PTSD disability. There is evidence that the Veteran's PTSD is productive of some occupational and social impairment, which are contemplated by the rating presently assigned and the applicable rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. Employability Concerns Finally, the Board acknowledges that the Veteran retired in the year 1992, but such was not related to any service-connected condition; moreover, the evidence of record, to include his statements/testimony, does not suggest that service-connected conditions, to include PTSD and/or urethro-prostatitis, render him unemployable. Therefore, even considering Rice v. Shinseki, 22 Vet. App. 447 (2009), a total disability evaluation, based on individual unemployability, due to service connected disabilities (TDIU) is not an element of the present matter before the Board and entitlement to such benefit need not be addressed at this time. ORDER An initial 50 percent disability rating, and no more, for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ D. B. WEISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs