Citation Nr: 1123213 Decision Date: 06/17/11 Archive Date: 06/28/11 DOCKET NO. 07-40 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability rating higher than 30 percent for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 2001 to July 2006, including service in Afghanistan for which he earned the Combat Action Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDING OF FACT Throughout the appeals period, the Veteran's posttraumatic stress disorder has been manifested by reduced reliability and productivity as a result of such symptoms as flattened affect, impairment of memory, impaired judgment, decreased motivation and mood, and difficulty establishing and maintaining effective relationships under 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, of the American Psychiatric Association (DSM-IV), which is referred to in 38 C.F.R. § 4.130 (rating mental disorders), but not covered in the rating criteria, but occupational and social impairment with deficiencies in most areas including work, family, and relationships has not been shown. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent for posttraumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (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 notice requirements are 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 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 pre-adjudication VCAA notice by a letter, dated in November 2006, on underlying claim for service connection. Where, as here, service connection has been granted and the 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 regarding the rating of the disability 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records as well as post-service VA records. The Veteran was afforded VA examinations in December 2006 and in January 2008. The reports of the VA examinations contain sufficient clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative evidence 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 Rating A disability rating is 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. 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, 510 (2007). Here, the Board notes that the Veteran's symptomatology has largely consistent throughout the appeals period and staged ratings are, therefore, not warranted. Rating Psychiatric Disabilities The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities, including posttraumatic stress disorder: The criteria for a 50 percent rating are 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. The criteria for a 70 percent rating 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 work like setting); inability to establish and maintain effective relationships. The Global Assessment of Functioning (GAF) score 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 the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Facts The service treatment records show that on post-deployment health questionnaires the Veteran identified symptoms of mental and emotional stress. He indicated that he experienced nightmares, intrusive thoughts, startle reaction, and feelings of numbness or detachment from others. On initial VA examination in December 2006, the Veteran stated that he had individual counseling while in Afghanistan, where he had received the Combat Action Badge. Since service, it was noted that the Veteran had been prescribed anti-depressant medications, which had caused side effects including drowsiness, fatigue, and sexual dysfunction. The Veteran was not attending individual or group therapy, but he was less irritable and more social with the medication. The Veteran complained that he no longer enjoyed anything, even his Corvette, and he thought about death a lot. He had not had any problems with alcohol or substance abuse and was employed full time as a welder. There had been a four month period of unemployment during which he had not felt up to looking for work. He did not have a history of violence, assaultive behavior, or suicide. On mental status evaluation, the Veteran was restless with a constricted affect and anxious, hopeless, and depressed mood. His attention and orientation were intact and his thought process and content were unremarkable. His judgment, insight, and intelligence were appropriate. He reported problems sleeping. He felt tired when he woke up and had to make an extra effort to stay awake at work and avoid accidents. He exhibited obsessive or ritualistic behavior, including checking on noises, making sure doors and windows were locked, and he always carried a knife in his pocket. He experienced panic attacks when he felt frozen and unable to move. Although he had not experienced suicidal or homicidal ideation, he did become irritated with co-workers and thought about hurting them. He was able to maintain minimum personal hygiene and activities of daily living, and he had good impulse control. His remote memory was mildly impaired and his recent memory moderately impaired. The Veteran had recurrent intrusive recollections and he reexperienced traumatic events. The Veteran made an effort to avoid thoughts, feelings or conversations related to the traumatic events. He also experienced irritability and outbursts of anger, hypervigilance, and an exaggerated startle response, which caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran experienced some symptoms every day and he was constantly irritable, sad, and anxious. The Global Assessment of Functioning (GAF) score was 55. The VA examiner specifically stated that the Veteran exhibited reduced reliability and productivity due to posttraumatic stress disorder symptoms, including difficulty problem solving, deficiencies in motivation and mood, fatigue and depression. The Veteran continued to receive treatment for his mental health symptoms through VA, mostly in the form of prescribed medication. On VA examination in January 2008, the Veteran complained of daily depression and problems with anger. He had discontinued his antidepressant medication and he was concerned over the level of anger he exhibited towards his wife and coworkers. He was experiencing increased relationship problems due to drinking and on two occasions he had grabbed his wife by the arms and left bruises. He and his wife did socialize with another couple and attend movies, although the Veteran was uncomfortable being around people. He had experienced difficulty at work due to hangovers and his sleep difficulties. On mental status evaluation, the Veteran was restless and engaged in hand-wringing. While he was coherent, there were no spontaneous comments, only responses to questions. His affect was constricted. His attitude was indifferent, and his mood was hopeless. He was agitated and depressed. He was oriented, but he showed delayed cognition, poverty of thought, and paranoid ideation. The Veteran complained of awakening frequently during the night and checking the perimeter of his house. He was constantly fatigued, and he had obsessive ritualistic behavior including hand washing, obsessive worry about performing work tasks correctly, and fear for his wife's safety. He described panic attacks once or twice a month. His impulse control was poor and he had been verbally aggressive with his boss and physically aggressive with his wife, but he did not have homicidal or suicidal thoughts. He was able to maintain personal hygiene and did not have difficulty with activities of daily living, and his memory was intact. He described persistent reexperiencing of trauma, avoidance of stimuli associated with trauma, and persistent symptoms of increased arousal. The VA examiner noted that the results of psychological testing were in conflict with the self-reported symptom pattern, rendering the tests invalid. The examiner felt that this was consistent with a conscious effort at dissimulation on the tests. The VA examiner noted that the Veteran was employed fulltime as a truck driver in the oil fields and had tried several different jobs since service separation. He had been unable to maintain a job due to difficulty getting along with coworkers and taking orders from his supervisors. The Veteran also had difficulty with decreased concentration, difficulty following instructions, increased absenteeism, memory loss, and poor social interaction. The VA examiner noted that the Veteran had lost six days of work in the past eight months due to hang-overs from drinking. The GAF score was 70. The VA examiner noted that the Veteran's reported problems with employment, family function, and interpersonal relationships could be due to alcohol abuse and depression, rather than to posttraumatic stress disorder. Analysis Based on the symptomatology described above, the Board finds that from the date of service separation the Veteran's disability picture as a result of posttraumatic stress disorder with depression has been one of reduced reliability and productivity. Specifically, the VA examiner in December 2006, when offered multiple descriptions corresponding to the various disability ratings, selected reduced reliability and productivity," the criteria for a 50 percent disability rating, as most appropriate for the Veteran's condition. Symptoms at that time included memory impairment, obsessive rituals, sleep disturbance, anxiety, depression, and panic attacks. In addition, he had symptoms of hypervigilance and an exaggerated startle response. These symptoms are consistent with a disability rating of 50 percent, as noted in the examiner's selection of reduced reliability and productivity as an appropriate assessment of his condition. A rating higher than 50 percent is not warranted based on the symptoms described on both VA examinations. Specifically, the Veteran was able to maintain employment, despite his difficulties with coworkers. His marriage was intact, and he was able to maintain some social contacts outside of his family. While the Veteran did exhibit some obsessive rituals, the rituals did not interfere with his normal activities. He was able to function independently, appropriately, and effectively despite his depressive symptoms. In short, the Veteran's symptomatology does not rise to the level of occupational and social impairment with deficiencies in most areas, such as would warrant a 70 percent disability rating, at any point in the appeal period. Finally, with regard to the differences in the level of impairment between the examination in December 2006 and examination in January 2008, different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the Board's responsibility to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. Overall, the assessment of the Veteran's work history and social difficulties by the VA examiner in 2008 is consistent with the description provided by the first VA examiner, namely, reduced reliability and productivity. Extraschedular Consideration Although the Board is precluded by regulation from assigning extraschedular ratings 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. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between 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 no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology of reduced reliability and productivity due to social and occupational impairment, and provide for higher ratings for more severe symptoms. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An initial disability rating of 50 percent, but not higher, is granted, subject to the laws and provisions governing the award of monetary benefits. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs