Citation Nr: 1124510 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 05-33 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. What evaluation is warranted for posttraumatic stress disorder (PTSD) from October 21, 2004 to November 3, 2010? 2. What evaluation is warranted for PTSD since November 4, 2010? ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to April 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for posttraumatic stress disorder and assigned a 30 percent evaluation effective October 21, 2004. This case was remanded in January 2008 in order to assure compliance with VA's duty to notify and assist and in order to acquire treatment records. The case was remanded again in April 2010. In an April 2011 rating decision the Veteran's posttraumatic stress disorder was assigned a 50 percent rating effective from November 4, 2010. FINDINGS OF FACT 1. Between October 21, 2004 and November 3, 2010, the Veteran's PTSD was manifested by not more than occupational and social impairment with reduced reliability and productivity. 2. From November 4, 2010, the Veteran's PTSD has not been manifested by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Between October 21, 2004 and November 3, 2010, the criteria for an initial evaluation of 50 percent for PTSD were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). 2. From November 4, 2010, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2004 and January 2008 of the information and evidence needed to substantiate and complete his claims. The Veteran was provided with notification to include information regarding how disability evaluations and effective dates are assigned in January 2008. The claim was readjudicated in an April 2011 supplemental statement of the case. Thus, any timing error was harmless and not prejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case is sufficient to cure a timing defect). These matters were before the Board in January 2008 and April 2010. The purpose of the January 2008 remand was to provide the Veteran with proper VCAA notification and to secure evidence relating to the impact of his posttraumatic stress disorder on occupational functioning . The purpose of the April 2010 remand was to obtain a new VA examination. All of the actions previously sought by the Board through its prior remands appear to have been substantially completed as directed, and the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, providing VA examinations. There is no evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations include: interpreting reports of examination in 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, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). From October 21, 2004 to November 3, 2010, the RO has assigned a 30 percent evaluation for posttraumatic stress disorder. From November 4, 2010, the appellant has been assigned a 50 percent rating He contends that he is entitled to a higher disability ratings for the entire period on appeal. The Veteran's PTSD is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 30 percent rating is warranted 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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 rating is warranted for 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. Id. One factor for consideration in evaluating mental disorders is the Global Assessment of Functioning score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV)). A global assessment of functioning score of scores ranging between 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores between 51 and 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 between 31 to 40 indicate 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). The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis After reviewing the evidence of record, the Board finds that an initial evaluation of 50 percent, but no higher, is warranted for service-connected PTSD between October 21, 2004 and November 3, 2010. The evidence supporting this conclusion includes a February 2004 statement by the Veteran in support of his claim. Therein he reported having intrusive thoughts, nightmares, flashbacks and avoidance. He noted a chronic sleep disturbance, irritability and anger outbursts, problems concentrating, hypervigilance and an exaggerated startle response. He noted that he preferred to isolate himself from others and experienced an intermittent depressed mood. He described panic attacks occurring as often as four times per week, and auditory and visual illusions and hallucinations. In February 2005, the Veteran was afforded a VA examination. He reported having very poor sleep, as well as twice weekly nightmares. The Veteran reported occasional panic attacks, as well as anxiety and frequent depression. He stated that he was irritable and angry and easily frustrated. He described being easily startled, and hypervigilant. He reported regular intrusive memories and avoidance symptoms. He reported that he isolated himself whenever he could and that he took breaks at work by himself because he did not like to be around people. The Veteran explained that he had quit his job on a number of occasions but that they held on to his paperwork until he "settled down." He stated that he experienced some problems concentrating at work and a lot of problems getting along with the public, co-workers and supervisors. The Veteran explained that he lived with his wife and had two adult children. He stated that he did not have any hobbies and mainly kept to himself. On mental status examination it was noted that the Veteran's behavior was normal and that he was neatly groomed and dressed. There was no pressured speech and communication was good. The Veteran was noted as not having hallucinations, delusions, paranoia or ideas of reference. He was not homicidal or suicidal. He did express feelings of worthlessness. The Veteran's affect was found to be mildly to moderately depressed, and there was mild psychomotor retardation and mild to moderate anxiety. The Veteran's judgment was noted as good, and his insight was fair. A global assessment of functioning score of 50 was provided. Also included in the claims file is a February 2005 report from Dr. E.H. of the Goldsboro Psychiatric Clinic, it was noted that the Veteran was evaluated days before his VA examination. In his report, Dr. E.H. noted the Veteran's reports of nightmares beginning in 1966 and that presently the appellant had nightmares at least one to two times per week. The Veteran reported flashbacks which were sometimes accompanied by panic attacks, and that he averaged four hours of sleep per night. The Veteran reported intrusive thoughts, a hyperactive startle response and hypervigilance. He reported that he did not socialize with anyone and that his recent memory was severely impaired to the point where he could not remember what he read and got lost when traveling. The Veteran reported that he heard his name being called once per week, that he heard cars drive to his home one to two times a day and noises in the house two to three times per day. He also reported seeing shadows moving out of the corners of his eyes many times per day. He stated that he felt depressed fifty percent of the time with no energy and little interest in things, and that he had crying spells once a week. The Veteran reported that he became angry easily and felt helpless at times. Dr. E.H. reported that, because of the Veteran's PTSD, he was unable to sustain social relationships and was moderately compromised in his ability to sustain work relationships. Dr. E.H. assigned a global assessment of functioning score of 35. An August 2005 VA medical center treatment record noted that the Veteran reported difficulty sleeping at night. The appellant stated that he both heard and saw things related to his time in Vietnam. The Veteran explained that this had been an ongoing problem for him but that it had increased in severity. An April 2006 treatment note reported that the Veteran had PTSD with good control of his symptoms. In February 2008, the Veteran's wife submitted a statement in support of her husband's claim. In her statement, S.W. reported that the Veteran had sleep disturbances and avoided movies about war. She stated that when her husband heard an airplane or hunters shooting he believed they were after him, and that he heard the sound of cars when none were there. In February 2008, the Veteran reported having problems hearing shots fired by hunters who hunted near his home, and that this brought back memories of Vietnam. The Veteran additionally stated that his memory was not good, and that he heard his name called when no one was calling him. He additionally stated that he saw people out of the corner of his eye, that he spent time alone when he could and that he had trouble sleeping as he feared he would be attacked. Included in the claims file are several patient assessment forms from the Goldsboro Psychiatric Clinic dated between February 2005 and October 2009. Significantly, the majority of these reports were prepared by a certified nurse assistant. According to North Carolina regulatory authorities a certified nurse assistant is a: Nurse Aide "Nurse Aide" means a person who is listed on the North Carolina Nurse Aide I Registry and is in compliance with 42 CFR Part 483 10A NCAC 13D .2001 (35). Nurse aide means any individual providing nursing or nursing-related services to residents in a skilled nursing facility who is not a licensed health professional (emphasis added), a registered dietitian, or someone who volunteers to provide such services without pay. Nurse aides do not include paid feeding assistants 42 CFR 483, Subpart B 483.75(e); Social Security Act 1819(b)(5)(F) and 1919(b)(5)(F). Thus, a certified nurse assistant is not a licensed health care professional, and in some instances, can be a volunteer without pay. While in this case, the medication prescribed was prescribed by a physician, the probative value of these reports is reduced in light of the this fact. The Goldsboro assessment forms note the Veteran's sleeping habits, the occurrence of panic attacks, flashbacks, intrusive thoughts, startle response, hypervigilance and memory symptoms as well as his level of socialization. The forms additionally include a symptoms checklist and hallucinations checklist wherein the Veteran reported which psychiatric symptoms he experienced and how often he experienced such symptoms. Many of these patient assessment forms additionally included a global assessment of functioning score, these scores are not accompanied by an explanation. The Goldsboro Psychiatric Clinic patient assessment forms demonstrate that the Veteran reported having either no panic attacks or at most twice a week between February 2005 and October 2009. The assessment forms reflect reports of sleeping four to eight hours per night, and that the appellant was having nightmares. Some assessments note complaints of flashbacks, intrusive thoughts, hypervigilance and an exaggerated startle response. The Veteran regularly reported having an impaired memory. The Veteran described socializing at times rarely and at times frequently with family and friends. His symptom checklists included complaints of decreased energy and interest levels. The assessment reports note complaints of hallucinations such as hearing sounds such as his name, cars and footsteps and noises in the house; as well as visual hallucinations such as witnessing shadows moving. Suicidal symptoms were not noted at any time. The assigned global assessment of functioning scores ranged between 40 and 65 during this period. The Board finds that after resolving reasonable doubt in the appellant's favor that a 50 percent disability rating best approximates the Veteran's symptoms for the period between October 21, 2004 and November 3, 2010. As noted above, during this period, the evidence demonstrates panic attacks, sometimes occurring more than once a week, reported memory impairment, disturbances in motivation and mood and sleep impairment. The evidence does not, however, demonstrate symptoms such as suicidal ideation, obsessional rituals which interfered with routine activities; speech which was intermittently illogical, obscure or irrelevant; near continuous panic or depression affecting the ability to function independently, spatial disorientation or neglect of personal appearance. While the Board notes the reports that the appellant often had trouble with co-workers and often briefly quit his job, despite this the appellant had been able to keep the same job for some 38 years. Socially, while he is shown to have had trouble socializing with friends, he had a close relationship with his wife and children. Hence, as a whole, the Veteran's inability to establish and maintain effective social and work relations described in the 70 percent rating criteria has not been established by the evidence of record. The Board is cognizant of the range between the Veteran's global assessment of functioning scores. The scores range from a score of 35 provided by Dr. E.H. in February 2005, to the score of 65 noted in June and September 2006 patient assessment forms from Goldsboro Psychiatric Clinic. Global assessment of functioning scores between 31and 40 indicate some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood. Scores between 41 and 50 reflect serious symptoms, scores between 51 and 60 reflect moderate symptoms and scores between 61 and 70 reflect mild symptoms. In this case, the Veteran's global assessment scores vary widely but primarily ranged between 51 and 65, demonstrating mild to moderate symptoms. Remarkably, despite assigning a global assessment of functioning score of 35, Dr. E.H. specifically noted that the Veteran had worked for thirty five years and that he was only "moderately compromised in his ability to sustain work relationships" (emphasis added). Thus, the global assessment score of 35 is not consistent with the objective findings. Thus, that score is not probative as to the Veteran's actual disability picture. While some social and occupational impairment is conceded, the extent of such impairment is properly reflected by a 50 percent evaluation for the term from October 2, 2004 to November 3, 2010. The Veteran's symptoms demonstrated no more than occupational and social impairment with reduced reliability and productivity. With respect to the term since November 4, 2010, the Board finds that the assigned 50 percent rating is appropriate. At a November 2010 VA examination the Veteran reported hearing cars driving into his driveway or people talking three to five times a week, primarily at night when he was falling asleep or when he awakened. He also reported seeing things out of the corner of his eye when nothing was there. The examiner opined that the latter might be an illusion rather than a hallucination. The Veteran reported that these experiences began in the late 1980s and occurred more frequently when his symptoms were severe. The examiner opined that these symptoms did not appear to warrant a diagnosis of a psychotic disorder but appeared to be related to his PTSD. The appellant denied mood symptoms to include depressed mood or suicidal ideation. He reported being a little nervous, he worried whether someone would break into the house at night, and during hunting season he was nervous when he heard gun shots or military jets or helicopters. The Veteran explained that he had been married to his current wife for forty-five years and that he remained in close contact with his adult children. He denied having close and personal relationships outside of his home. He reported attending church on occasion, and fishing with his son on occasion; but he spent the majority of his time at home by himself. Mental status examination revealed the Veteran to be appropriately dressed with a constricted affect. He was found to be without delusions and with fair judgment and insight. It was noted that the Veteran experienced sleep impairment as well as auditory hallucinations which were not persistent. The Veteran reported that he sometimes experienced panic attacks which usually occurred after he had a trigger related to his PTSD. The examiner opined that these appeared to be related to trauma stressor reminders rather than separate attacks. It was noted that the Veteran did not have homicidal or suicidal thoughts, that his impulse control was fair, and no episodes of violence were reported. It was further noted that the Veteran's personal hygiene was maintained and there was no problem with activities of daily living. The examiner noted that the Veteran's remote memory was normal, but recent and immediate memory were mildly impaired. Overall, the Veteran's memory appeared to be grossly intact with some difficulty with short term memory and moderate difficulty with concentration. The Veteran was noted to have worked at a manufacturing plant for 38 years and that he retired in 2006 when he had the opportunity. It was noted that the Veteran had difficulty coping with stress and interacting with co-workers. The examiner assigned a global assessment of functioning score of 49 and stated that the Veteran endorsed moderate to serious symptoms of PTSD which caused moderate to serious functional impairment. Given the foregoing, the Board finds that the Veteran's disability picture does not most nearly approximate the level of social and occupational impairment contemplated by the next-higher 70 percent evaluation from November 4, 2010. The evidence does not demonstrate symptoms approximating those described in the 70 percent disability rating. The record does not demonstrate symptoms of or symptoms approximating suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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. During his November 2010 VA examination the appellant was appropriately dressed, and he showed fair judgment and insight. Hallucinations and panic attacks were noted but were not persistent. He had some difficulty with short term memory. While the Veteran is shown to isolate himself from friends, he remains in close contact with his children and he has been married to his wife for over forty-five years. Such symptoms do not demonstrate an inability to establish and maintain effective relationships. The November 2010 examiner opined that the appellant's posttraumatic stress disorder caused a moderate to serious functional impairment. While the Veteran's symptoms may demonstrate a slight increase in severity, the evidence is not in equipoise such as to justify assigning a 70 percent rating. Entitlement to a disability rating in excess of 50 percent from November 4, 2010 must therefore be denied. With respect to the entire term since October 21, 2004 the Board has considered whether the Veteran's posttraumatic stress disorder presented an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of additional symptomatology than is currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability evaluation may require a determination as to whether the Veteran is entitled to a total disability rating based on individual unemployability. In this case, however, the Veteran retired from his place of employment in 2006 after having been employed for 38 years. While the Veteran remarked in his November 2010 VA examination that he retired when he could due to his inability to work well with others, the preponderance of the evidence demonstrates that unemployability due to posttraumatic stress disorder alone is not demonstrated. ORDER A 50 percent rating, but not higher, for posttraumatic stress disorder from October 21, 2004 to November 3, 2010, is granted subject to the laws and regulations governing the award of monetary benefits A rating in excess of 50 percent for posttraumatic disorder from November 4, 2010, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs