Citation Nr: 1123374 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 11-01 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Board presently grants the Veteran's claim in part, and assigns a 50 percent rating for PTSD. Also of record is a November 2010 VA examination report indicating that the Veteran reported being released from employment due to anger problems associated with his service-connected PTSD. Consequently, a claim for a total rating based on individual unemployability is raised and REFERRED to the RO for appropriate action. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that once a veteran submits evidence of a medical disability and submits a claim for an increased disability rating with evidence of unemployability, VA must consider a claim for a total rating based on individual unemployability). The Veteran served on active duty from January 1964 to January 1968, including service in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey (RO), which granted service connection for PTSD and assigned a 30 percent rating effective May 12, 2009. FINDINGS OF FACT 1. All known and available medical records have been obtained; the Veteran has been advised under the facts and circumstances of this case as to the evidence which would substantiate his increased rating claim; and he has otherwise been assisted in the development of his claim. 2. The evidence does not show occupational and social impairment with reduced reliability and productivity due to psychiatric symptomatology from May 12, 2009 through November 9, 2010. 3. There is evidence of occupational and social impairment with reduced reliability and productivity due to service-connected PTSD beginning November 10, 2010; the evidence does not show occupational and social impairment, with deficiencies in most areas, due to psychiatric symptomatology since November 10, 2010. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial evaluation in excess of 30 percent from May 12, 2009 through November 9, 2010 for service-connected PTSD are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for the assignment of an initial evaluation of 50 percent, but no higher, beginning November 10, 2010 for service-connected PTSD are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2008). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in May 2009, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. Service connection was subsequently granted for PTSD by rating decision in January 2010. Although the Veteran was not notified of the requirements to establish entitlement to an increased rating until later, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as the claims for increased compensation following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The appropriate notice has been given in this case with respect to the increased rating claim. In accordance with the requirements of VCAA, the May 2009 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. No additional private evidence was subsequently added to the claims file after the May 2009 letter. The Veteran was informed in the May 2009 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Examinations for VA purposes relevant to the increased rating issue on appeal were conducted in December 2009 and November 2010. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to decide the issue on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2010). Analysis of the Claim The Veteran was granted service connection for PTSD by rating decision in January 2010, which assigned a 30 percent rating effective May 12, 2009 under Diagnostic Code 9411. He contends that PTSD is more severely disabling than is reflected by the currently assigned rating. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the evidence warrants an increased rating of 50 percent beginning November 10, 2010, and the claim will in part be granted. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2010). The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2010). Separate diagnostic codes identify the various disabilities. 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 disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where 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. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, as in this case, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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). A 30 percent evaluation is assignable for 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). A 50 percent evaluation is assignable for psychiatric disability 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 (for example, 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. Id. A 70 percent evaluation is assignable for psychiatric disability 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation for psychiatric disability is assignable with 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. The global assessment of functioning (GAF) score reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). A GAF of 61 to 70 is defined as 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. A GAF of 71 to 80 is assigned if symptoms are transient and expectable reactions to psychosocial stressors defined as mild symptoms (e.g., difficulty concentrating after family argument), with no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). VA treatment records for May and June 2009 reveals complaints of sleep problems, nightmares, social isolation, and difficulty with authority. The assessment was chronic combat-related PTSD. The Veteran complained on VA psychiatric evaluation in December 2009 of insomnia with nightmares approximately 2-3 times a week. On mental status evaluation, the Veteran was alert and oriented, his mood was dysthymic, and his affect was constricted. His speech was coherent and goal directed, and there was homicidal or suicidal ideation. The diagnoses were PTSD, of moderate severity; and alcohol abuse, in remission. The GAF score was 65. Also on file are Vet Center records through June 2010. The assessment in October 2009 was dreams, flashbacks, and sleep disorders related to PTSD. It was reported in February 2010 that the Veteran was making some progress in reducing anxiety. The Veteran's complaints on VA psychiatric evaluation on November 10, 2010 included intrusive thoughts and nightmares related to PTSD trauma, anger problems, irritability, and difficulty with others. His sleep was described as extremely poor. He was taking medication for his psychiatric problems, which made him groggy. He had been terminated from work as a driver for a Community Health Center in 2008 due to falling asleep and having several accidents and due to anger problems. He was divorced and lived with his daughter. The Veteran thought that he anger led to his divorce. On mental status evaluation in November 2010, the Veteran was oriented, his speech was coherent and goal directed, and he was appropriately groomed and dressed. His mood was anxious with a mildly constricted affect. There were no hallucinations or delusions. Concentration, short-term memory, abstract reasoning, and impulse control were intact. The Veteran's insight was fair; his judgment was adequate. He said that he did little to no socializing due to feeling uncomfortable around other people. After review of the claims file and evaluation of the Veteran, the diagnosis in November 2010 was PTSD, moderate to severe. The GAF score was 49. It was noted that the Veteran had serious symptoms and serious impairment. The examiner noted that the Veteran had significant problems keeping a job due to anger problems and to problems related to medication side effects. The examiner stated that the Veteran could work in a limited way if it did not involve much social interaction. According to the examiner, the Veteran's symptom severity and functional impairment appeared to be worse than on VA evaluation in 2009. The evidence prior to November 2010 does not reveal sufficient occupational and social impairment with reduced reliability and productivity to warrant a rating in excess of 30 percent 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 (for example, 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. Although the Veteran complained of symptoms such as insomnia, nightmares, and social isolation prior to VA evaluation in November 2010, his PTSD was considered of moderate severity when seen in December 2009 and his GAF score at the time was 65, which is indicative of mild symptoms. It was noted in February 2010 that he was making progress in reducing his anxiety. However, when examined on November 10, 2010, it was noted that the Veteran's PTSD symptoms had worsened; and the GAF score was only 49, which is indicative of serious symptomatology. Consequently, the Board finds that the Veteran's psychiatric symptomatology more nearly approximates the criteria for a 50 percent rating beginning November 10, 2010. A rating in excess of 50 percent is not warranted during the appeal period. The evidence does not show 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; or neglect of personal appearance and hygiene. In fact, it was noted in November 2010 that the Veteran was oriented, his speech was coherent and goal directed, and he was appropriately groomed and dressed. There were no hallucinations or delusions. Moreover, concentration, short-term memory, abstract reasoning, and impulse control were intact. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran is competent to report his PTSD symptoms. His complaints are credible, but must be evaluated in light of the rating schedule described above. The Veteran's complaints have been considered in the above noted grant of a 50 percent rating for service-connected PTSD; however, evaluations for VA purposes have not shown the severity required for a higher schedular, as discussed above. ORDER Effective November 10, 2010, a rating of 50 percent for PTSD is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs