Citation Nr: 1122886 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 06-06 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial rating higher than 50 percent before March 24, 2008, an initial rating higher than 70 percent from March 24, 2008, to July 20, 2009, for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1966 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. While on appeal in a rating decision in January 2010, the RO increased the rating to 70 percent effective March 24, 2008 and assigned a 100 percent rating from July 20, 2009. The Veteran continued his appeal for a higher rating. AB v. Brown, 6 Vet. App. 35, 38 (1993). In May 2009, the Board remanded the claim to afford the Veteran a VA examination. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Before March 24, 2008, posttraumatic stress disorder was productive of occupational and social impairment with deficiencies in most areas, as described in the General Rating Formula for Mental Disorders, including the symptoms associated with the diagnosis of posttraumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV) of the American Psychiatric Association, which is referred to in 38 C.F.R. § 4.130 (rating mental disorders), but not covered in the rating criteria; from March 24, 2008, to July 20, 2009, total occupational and social impairment is not shown, and from July 20, 2009, onward the Veteran is evaluated at the highest available schedular rating for posttraumatic stress disorder. CONCLUSION OF LAW Before March 24, 2008, the criteria for an initial 70 percent rating for posttraumatic stress disorder have been met; from March 24, 2008, to July 20, 2009, the criteria for an initial rating higher than 70 percent for posttraumatic stress disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the Veteran with content-complying VCAA notice on the underlying claim of service connection for posttraumatic stress disorder, by letter dated in February 2006. Where, as here, service connection has been granted and an initial disability rating has been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating for posttraumatic stress disorder. Dingess, 19 Vet. App. 473. Duty to Assist Relevant to its obligation to assist a claimant, VA has also made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A (a), (b) and (c). The RO has obtained VA records and records from the Social Security Administration. The Veteran was afforded VA examinations in August 2006, in March 2008, in July 2009, and in December 2010 to determine the severity of the disability. 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). The Board finds the examinations were adequate as the VA examiners reviewed the Veteran's file, recorded the Veteran's current complaints, conducted an appropriate examination, and rendered an opinion. The Board therefore concludes that the evidence of record is adequate for rating the disability. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Evaluating Disabilities Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson, 12 Vet. App. 119. When evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Posttraumatic stress disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from posttraumatic stress disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Posttraumatic stress disorder has been rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, as 50 percent disabling, effective from December 27, 2005, when service connection was established, and then rated as 70 percent disabling from March 24, 2008 to July 20, 2009 and 100 percent disabling since July 20, 2009. The criteria for a 70 percent are 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 worklike setting); inability to establish and maintain effective relationships. The criteria for a 100 percent are 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 of 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. The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV at 32. GAF scores ranging from 61 to 70, for example, 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, has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect 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 younger children, is defiant at home, and is failing at school). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Initial Rating Higher than 50 Percent before March 24, 2008 Facts VA records show that in October 2005 the Veteran complained of avoidance of activities, emotional numbness, sleeping disturbance, irritability, anger outbursts, and exaggerated startle response flex. The pertinent finding was a flat affect. In a statement in March 2006, the Veteran indicated he had no friends, because of his anger problems. He stated he had daily suicidal thoughts. On VA examination in August 2006, the VA examiner noted a history of three divorces and poor martial relations. The Veteran's relationships with his children were functional, but strained. He was active in his church and visited a nursing home, but otherwise engaged in solitary activities. The Veteran reported a history of suicidal ideation. He frequently fought with others and engaged in threatening behavior to his spouses. On mental status evaluation, the Veteran was described as neatly groomed and casually dressed. His speech was unremarkable. His attitude was cooperative and friendly. He was relaxed and attentive. His affect was full. His mood was good. He was oriented. His thought process and thought content was unremarkable. There were no delusions. There was no inappropriate behavior, obsessive ritualistic behavior, or panic attacks. Impulse control was good. Personal hygiene was good and memory was normal. As for symptoms of posttraumatic stress disorder, the VA examiner found that the Veteran made efforts to avoid thoughts, feelings, or conversations associated with trauma. He had feelings of detachment or estrangement from others, and a sense of foreshortened future. He was irritable, had outbursts of anger, difficulty concentrating and exaggerated startle response. The disturbance caused significant impairment in social and occupational functioning. The Veteran reported frequent anger problems and difficulty concentrating on a daily basis. The examiner indicated that the Veteran reported hyperarousal symptoms and his difficulties working were more related to orthopedic issues. The examiner stated that the Veteran did not demonstrate neuropsychological impairment to a degree that would restrict work performance. The GAF score was 60. VA records from November 2006 show that in late 2005, the GAF score of 51. A VA social worker noted that in the past year the Veteran was dealing with severe anger issues, discord in his marriage, depression, anxiety and social isolation. She noted that while the Veteran had a GAF score of 60 in August 2006, it would not be uncommon for him to minimize his symptoms in a brief one time session. She was of the opinion that the Veteran's symptoms included emotional numbing, severe isolation and withdrawal, extreme irritability and anger, communication problems, excessive rigidity and need to control, hyperarousal, difficulty with intimacy, suicidal thoughts, depression and anxiety. In May 2007, the social worker indicated the Veteran continued to deal with severe anger issues, depression, anxiety and marital problems. VA records show that in December 2007 the Veteran was presented with divorce papers and a restraining order. A sheriff's deputy came to his home, the Veteran panicked and hit the officer in the arm when he saw a stun gun. He was arrested for assaulting a police officer. The Veteran reported being suicidal in jail and immediately after his release, but denied being currently suicidal. His GAF score was 38. Analysis The evidence shows that the Veteran has symptomatology that is associated with the criteria under the General Rating Formula for Mental Disorders and symptoms associated with the diagnosis of posttraumatic stress disorder under DSM-IV, which is referred to in 38 C.F.R. Part 4, § 4.130 (rating mental disorders), but not covered in the rating criteria. All of the Veteran's symptoms are considered in this analysis. Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the overall effect of the symptoms that determines the rating. When interpreted in light of the Veteran's history and reconciling the various reports into a consistent picture, the VA records document fairly consistent symptoms throughout this stage of the appeal period. The GAF scores ranged from 38 to 60, which are indicative of serious impairment in social and occupational functioning to major impairment in areas such as work, family relations, judgment, thinking or mood. Also, the Veteran has been in regular psychotherapy for posttraumatic stress disorder, but despite this treatment regimen he still experienced suicidal ideation, social isolation, estrangement from others, marital difficulties, strained relationship with children, sleeping problems, anger outbursts, ongoing suicidal ideations, sleep disturbance, depressed mood, anxiety and significant impairment in occupational functioning. He demonstrated poor judgment in December 2007 when he a saw stun gun, panicked that he was going to be hurt and assaulted a police officer. While on VA examination n August 2006, the Veteran was neatly groomed, oriented, speech and thought process was unremarkable and he did not demonstrate obsessive ritualistic behavior or panic attacks, the effect of posttraumatic stress disorder more nearly approximates the criteria for a 70 percent rating as the Veteran had occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment and mood. Although the Veteran has severe occupational and social impairment, neither gross impairment in thought processes or communication, persistent delusions nor 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, nor memory loss for names of close relatives, own occupation, or own name has not been shown prior to March 24, 2008 under the General Rating Formula. And the symptoms attributable to posttraumatic stress under DSM- IV are not the equivalent to total occupational and social impairment under the General Rating Formula prior to March 24, 2008. Initial Rating Higher than70 Percent from March 24, 2008, to July 20, 2009 Facts On VA examination in March 2008, the VA examiner noted that the Veteran's interpersonal conflict and anger outbursts affected his occupational functioning. Currently the Veteran was going through his fourth divorce. He reported a good relationship with his adult children, whom he saw once to twice per month. He also had a good relationship with his sister and was active in his church. The Veteran indicated he had no friends and did not identify any leisure activities. It was noted that the Veteran was undergoing mental health treatment for temper control. He still had problems sleeping. On mental status examination, the Veteran was well groomed. His mood was depressed. The Veteran was oriented. His thought process was logical, linear and coherent. Speech was easily comprehensible. The Veteran denied hallucinations. The VA examiner noted the Veteran persistently re-experienced traumatic events through recurrent distressing recollections, dreams and intense psychological distress. The Veteran felt detached, had diminished interest in activities and avoided thoughts, feelings of conversation associated with trauma. The Veteran had difficulty falling asleep, concentrating, and he was irritable and hypervigilant. The VA examiner concluded that posttraumatic stress disorder had severely impacted the Veteran's occupational and social functioning. The VA examiner noted the Veteran's failed marriages were due to the Veteran's problems with anger. And there was history of termination from employment despite the solitary nature of past jobs. The GAF score was 42. VA records show that following the Veteran's arrest he had difficulty sleeping, did not engage in social activities and stopped going to church. He continued to struggle with fear, anxiety, and overwhelming sense of depression. A VA social worker noted that the Veteran's multiple experiences with loss of control have compromised his ability to be gainfully employed. She noted the Veteran's sense of interpersonal threat was significant. VA records from 2008 to 2009 show continued treatment for posttraumatic stress disorder. The GAF scores ranged from 40 to 60. In May 2009, the Veteran was described as well groomed. His speech was normal. His mood was mildly depressed. His thought process was rational, and insight and judgment were fair. The Veteran was hypervigilant and was emotionally numb. Analysis In evaluating the evidence, the Board finds that that the Veteran's symptoms of posttraumatic stress disorder are not so severe as to affect his everyday life and his ability to function to a degree that more nearly approximates the schedular criteria for a 100 percent rating. While his posttraumatic stress disorder symptoms severely impacted his occupational and social functioning, his thinking appeared to be without deficiency, he was oriented, well groomed, and speech was normal. For these reasons, the symptomatology associated with the rating criteria under the General Rating Formula and symptomatology associated with the diagnosis of posttraumatic stress disorder under the DSM-IV do not more nearly approximate or equate to total occupational and social impairment due to various symptoms for the next higher rating of 100 percent. In sum, the preponderance of the evidence is against an initial rating higher than 70 percent for posttraumatic stress disorder from March 24, 2008 to July 20, 2009, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). An Initial Rating from July 20, 2009 Analysis From July 20, 2009, the Veteran has been assigned the highest schedular rating of 100 percent for the service-connected posttraumatic stress disorder. The rating represents a level of disability with total occupational and social impairment. A higher schedular rating is not permitted, and while the VA examination in December 2010 shows the posttraumatic stress disorder improved, the Board will not disturb the assigned rating of 100 percent. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). While the evidence throughout the entire appeal period shows the Veteran had occupational impairment due to posttraumatic stress disorder, here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for a higher rating for more severe symptoms. As the disability picture for the entire appeal period is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). (The Order follows on the next page.). ORDER Before March 24, 2008, an initial rating of 70 percent for posttraumatic stress disorder is granted, subject to the law and regulations governing the payment of monetary benefits. An initial rating higher than 70 percent from March 24, 2008, to July 20, 2009, for posttraumatic stress disorder is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs