Citation Nr: 1122632 Decision Date: 06/10/11 Archive Date: 06/20/11 DOCKET NO. 08-02 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an evaluation greater than 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In July 2010, the Board remanded this case for additional development. It has since returned to the Board. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's PTSD is productive of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an evaluation greater than 50 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2005 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In April 2009, VA notified the Veteran how VA determines disability ratings and advised him of the applicable rating criteria. The Board acknowledges that the Veteran was not specifically notified how VA determines effective dates. Notwithstanding, the Veteran is not prejudiced by such failure as the claim for increase is denied herein. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA has also satisfied its duty to assist. The claims file contains VA treatment records and Social Security Administration records. The Veteran has not identified additional relevant records that need to be obtained. The Veteran was provided VA examinations in December 2005, May 2007, and July 2010. The Board acknowledges that the July 2010 examiner did not provide curriculum vitae as requested in the remand, however, was identified as a "Ph.D." and "psychologist" and the Board finds there was sufficient compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). On review, there is no error or issue that precludes the Board from addressing the merits of this appeal. Analysis In September 2003, VA granted entitlement to service connection for PTSD, and assigned a 30 percent evaluation effective October 24, 2002. In June 2005, the Veteran submitted a claim for increase. He reported that he had not been treated because he did not want to be around people. He stated that he did not go out or associate with anyone and that he had a serious anger problem. He reported getting mad at his wife, mother, and anyone who talked to him. In January 2006, the RO increased the evaluation for PTSD to 50 percent disabling effective June 22, 2005. The Veteran disagreed with the assigned evaluation and subsequently perfected this appeal. The Veteran essentially contends that the currently assigned evaluation does not adequately reflect the severity of his disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2010); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation 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. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. PTSD is evaluated pursuant to the General Rating Formula for Mental Disorders. A 50 percent evaluation 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted when there is 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 the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Records from the Social Security Administration show the Veteran was awarded benefits with a disability onset date in October 2004 due to a primary diagnosis of disorders of the back (discogenic and degenerative). PTSD was not a basis for the award of Social Security benefits. Lay statements from the Veteran's spouse and mother received in September 2005 indicate that he had bad mood swings and he did not like being around others. At a December 2005 VA examination the Veteran reported that he was living with his second wife and mother. He had minimal contact with an adult son. He was unemployed and did not belong to any clubs, organizations or church groups. He stayed home except to go to the grocery store, gas station, or the hospital. The Veteran reported that he avoided others and yelled and screamed a lot. His sleep reportedly was interrupted and restless. He reported having no patience and his wife said that he was hard to live with. His medical history included Hepatitis C, and multiple joint arthritis. The examiner opined that the combination of the appellant's disorders prevented the appellant from working. On mental status examination the appellant's personal appearance and hygiene were within reason. For the most part, he responded only to questions and did not add much in a verbalization way. His mood and affect were within reason during the evaluation but apparently he had considerable periods of time when he had difficulty with low frustration tolerance and frequently responds with verbal anger. He was oriented times three. Concentration appeared to be a problem and he reported a short term memory problem. Judgment was poor and insight was limited. The Veteran reported difficulty organizing his thoughts, expressing himself, and that he had panic attacks about twice a month. He stated that he was careless with his hygiene. He reported having suicidal thoughts, but stated that he would never act upon them. He described getting into arguments over small things. There was no evidence of a thought disorder, no evidence of any delusions or hallucinations. Depression and anxiety were ongoing. The diagnoses were chronic PTSD, a depressive disorder, and a personality disorder, not otherwise specified. A Global Assessment of Functioning score of 55 was assigned. At a May 2007 VA examination the Veteran reported that a VA nurse practitioner prescribed medication for depression, and that his compliance with the medication plan was good. He reported still feeling somewhat depressed but the medicine helped him to feel less irritable. He described multiple physical problems, which seemed to be the source of most of his distress. The examiner noted that the appellant was depressed because of his health problems. The Veteran reported that his marriage has been going well and that there was less arguing. His mother died in 2006. He had little contact with his adult son, he avoided crowds, but maintained contact with a close childhood friend. His family also came to see him and he got along adequately with some of his siblings. The Veteran reported having fewer nightmares since beginning treatment. The examiner noted that there did not appear to be any significant changes in social functioning since the last examination. The Veteran was not working and felt that most of the reason he was unable to work was due to physical limitations. The Veteran reported that due to PTSD, was irritable at times and had difficulty concentrating. The examiner noted that some impairment in occupational functioning was evident during the interview secondary to PTSD symptoms. There did not appear to be any significant change in occupational functioning since the last examination. Objectively, the Veteran was unshaven, but otherwise adequately groomed. Hygiene seemed good. He was alert and fully oriented, and no obvious cognitive deficits were evidenced. His attention and concentration were mildly reduced. His memory and general intellectual abilities appeared to be within normal limits, and his thought content was rational, relevant, coherent, logical and goal-directed. There was no indication of ritualistic behavior and there was no impairment in his ability to communicate. His mood was mildly dysphoric with somewhat constricted affect. He reported having recent suicidal thoughts but no plans. He reported continued anger outbursts, but less frequently. There was no homicidal ideation. Sleep was reduced, largely due to physical pain. His insight was adequate, and judgment and impulse controls were fair. The diagnoses were chronic PTSD, and depression, not otherwise specified, as likely as not related to multiple health problems. A Global Assessment of Functioning score of 52 was assigned. Based on PTSD alone, the score was 58. His need for aid and attendance was judged to be primarily due to medical problems. The Veteran was hospitalized in July 2008 for a total right knee replacement. A VA social work note dated July 22, 2008 indicates that the Veteran was alert and oriented. He reported that he lived with his wife and his brother. The Veteran described his support system as limited to their neighbors and indicated that he "ain't very sociable." A social work note dated July 25, 2008 indicates that the Veteran's mood was euthymic with a mildly restricted affect. The social worker noted that the Veteran's history was significant for depression and PTSD but he had not sought mental health treatment since 2003. He was, however, currently prescribed medications to ameliorate symptoms. The Veteran underwent a VA psychology assessment on July 28, 2008, prior to admission for post-surgery rehabilitation. His mood was mildly dysphoric with congruent affect. He endorsed ongoing PTSD symptoms including being constantly angry, and suffering from a startle reaction, and occasional flashbacks. Following examination the diagnoses were PTSD and rule out mild dementia. An August 2008 psychology note indicates that the Veteran was alert and well oriented and recognized the examiner quite readily. His mood was mildly dysphoric. The nursing staff reported that the Veteran had not been a management problem. The Veteran most recently underwent a VA examination in July 2010. He reported that he did not want any type of counseling and he was currently maintained on antidepressant medication. He indicated feeling less irritable. The Veteran reported that he was still married but they were just house partners now as he was not able to have sexual activity and it was difficult to feel the closeness. He reported not having contact with his only child for years. His younger brother lived with them. The appellant noted that his closest friend had committed suicide a year prior. The Veteran stated that he did not participate in any activities due to his back problems. He stated that he no longer got into fights but he still "got into people's faces." He reported having an isolated, simple life. On examination his speech was unremarkable, his affect was appropriate, but his mood was depressed. He was oriented, and his thought process and content were unremarkable. There were no delusions. The Veteran understood the outcome of behavior and partially understood that he has a problem. He reported having nightmares a few times a year, and panic attacks a couple of times a month. He denied having any inappropriate behavior. He put things back in position after his wife dusts and asked her to check the doors. He denied suicidal or homicidal thoughts. Impulse control was reported as fair and episodes of violence were reported. He was able to maintain minimum personal hygiene. His memory was mildly impaired. The diagnoses were posttraumatic stress disorder, and depression due to medical conditions. A Global Assessment of Functioning score based on depression was 52, and based on PTSD alone was 58. Significantly, the July 2010 examiner indicated that it was less likely as not any diagnosed depression and/or anxiety was caused by or a result of the Veteran's PTSD. The examiner opined that PTSD symptoms were stable and depression was due to medical issues. The examiner further opined that it was less likely as not that depression was permanently aggravated by PTSD. The evidence of record shows that the Veteran is very irritable with some impairment of impulse control and he tends to socially isolate. He has also occasionally reported having suicidal thoughts. These symptoms affect his occupational and social functioning and this is reflected in the currently assigned 50 percent evaluation. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (The assignment of a compensable rating itself is recognition that industrial capabilities are impaired.) In considering whether an evaluation greater than 50 percent is warranted, the symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board notes that not all, or even some, of the symptoms cited in Diagnostic Code 9411 are required to support a particular evaluation. Id. In considering the merits of the claim, the Board notes that the Veteran is unemployed and acknowledges his reports that he walked off a number of jobs due to anger problems. Significantly, the evidence shows that the Veteran's unemployment has largely been attributed to his physical problems. The impact of his posttraumatic stress disorder on employment does not appear significant. There is no evidence of speech problems and on examination as the Veteran is able to adequately express himself. While the Veteran reportedly moves things back in their places after his wife dusts, there is no evidence of obsessional rituals which interfere with routine activities. The Veteran does not have near-constant service connected depression that affects his ability to function independently. Indeed, the July 2010 VA examiner determined that the Veteran's depression and anxiety were related to nonservice connected physical issues and not posttraumatic stress disorder. Any problems performing the activities of daily living have repeatedly been related to the Veteran's back or other physical problems. There is no evidence of spatial disorientation or a neglect of personal appearance and hygiene. While the Veteran clearly has some difficulty establishing and maintaining effective relationships, the evidence of record preponderates against finding that he is unable to establish and maintain any effective relationships due to PTSD. The Veteran continues to live with his spouse and brother and apparently still has contact with his neighbors and some of his siblings. The Board further notes that the appellant is maintained on medications and by his own statements, this helps with his PTSD symptoms. On review, the findings are most consistent with a 50 percent evaluation and the over whelming majority of the criteria for a 70 percent evaluation are not met or more nearly approximated. That is, the Board finds that the preponderance of the evidence is against finding that the appellant's disability picture is productive of occupational and social impairment with deficiencies in most areas, to include as due to symptoms contemplated by the rating criteria. In making this determination, the Board considered the assigned Global Assessment of Functioning scores, which reflect moderate symptoms. The Global Assessment of Functioning scale reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A score of 51-60 is appropriate where there are 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. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4TH ed. 1994). The Board also considered the fact that on several occasions the appellant endorsed having suicidal thoughts, although he denied having such thoughts at his 2010 examination. Significantly, there was no evidence that the appellant has ever had suicidal plans. Moreover, it must be noted that the Veteran suffers from nonservice connected depression and significant physical disorders. Depression is not service connected, and there is no evidence that suicidal ideation is due to PTSD symptoms. In fact, examiners repeatedly noted that the appellant's primary problems relate to the disability caused by his physical disorders, not his service connected posttraumatic stress disorder. Hence, when considering all of the evidence the Board does not find this single element sufficient to place the evidence in equipoise so as to warrant the assignment of a 70 percent rating. Finally, the Board further notes that the July 2010 examiner indicated that the Veteran's PTSD symptoms were mild to moderate and the degree of symptoms based on psychometric data was mild. The Veteran's overall functioning has remained similar throughout the appeal period and at no time has it been more than 50 percent disabling. Accordingly, staged ratings are not warranted. Hart. The Board considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed.Cir. 2009). In light of the evidence discussed above, the rating criteria for service-connected PTSD reasonably describe the Veteran's disability level and symptomatology. Thus, as his disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and a referral for extraschedular evaluation is not in order. Id. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The appeal is denied. ORDER Entitlement to an evaluation greater than 50 percent for PTSD is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs