Citation Nr: 1124610 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 09-50 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from March 1970 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT Throughout the rating period on appeal, the appellant's service-connected PTSD is manifested by depressed mood, anxiety, mild memory loss, sleep problems, and irritability, productive of occupational and social impairment comparable to no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C.A. § 5103(a). Because the November 2008 rating decision granted the appellant's claim for service connection for PTSD, such claim is now substantiated. His filing of a notice of disagreement as to the November 2008 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3) (2010). Rather, the appellant's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the appellant of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The December 2009 statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for rating the disability at issue (38 C.F.R. § 4.130, DC 9411), and included a description of the rating formulas for all possible schedular ratings under this diagnostic code. The appellant was thus informed of what was needed not only to achieve the next- higher schedular rating, but also to obtain all schedular ratings above that assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. Duty to Assist The Board concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). The RO provided the appellant an appropriate VA examination in October 2008. The examination is adequate because it is based on a thorough examination, a description of the appellant's pertinent medical history, a complete review of the claims folder and examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The October 2008 VA examination report is thorough and supported by VA treatment records and provided findings pertinent to the rating criteria. The examination in this case is adequate upon which to base a decision. II. Legal Criteria General Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant. Id. § 4.3. An appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Rating PTSD PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). Throughout the rating period on appeal, the appellant is assigned a 30 percent evaluation for his service-connected PTSD pursuant to Diagnostic Code 9411. 38 C.F.R. § 4.130. A 30 percent rating is warranted where the evidence shows 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). In order to achieve the next-higher 50 percent rating, the evidence must demonstrate 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 effective work and social relationships. 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. A 100 percent rating, the maximum schedular rating, is warranted for 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The appellant's medical records reflect a nonservice-connected Axis I diagnosis of depressive disorder, not otherwise specified, alcohol dependence, in remission, and opiate dependence, in remission. See May 2009 VA treatment record. However, most of the medical records have not specifically indicated what symptoms are attributable only to the nonservice-connected disability. Thus, the Board will, for the limited purpose of this decision, attribute all psychiatric signs and symptoms to his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) (finding that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition). Global Assessment of Functioning (GAF) GAF is a scale reflecting 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) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)) (DSM-IV). According to DSM-IV, a GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. See also QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-47 (1994). III. Analysis The appellant contends that he is entitled to an initial evaluation in excess of 30 percent for PTSD. For the reasons that follow, the Board concludes that a higher initial evaluation is not warranted. The November 2008 rating decision granted entitlement to service connection for PTSD with an initial evaluation of 30 percent, effective August 15, 2008. As such, the rating period on appeal is from August 15, 2008. 38 C.F.R. § 3.400(o)(2) (2010). The evidence fails to reveal communication difficulties. An October 2008 VA examination report reflects that the appellant spoke with a slower rate and rhythm, being evidence of the more prominent southern accent. The VA examiner did note that the appellant seemed to have somewhat of a paucity of ideas at times and somewhat slower thinking. A February 2010 VA treatment record indicates that the appellant's behavior was quiet, interactive on direct engagement, with good eye contact. June 2010 and July 2010 VA treatment records reflect that the appellant's voice had a normal rate, rhythm and volume. Another June 2010 and a May 2010 VA treatment record noted that the appellant's voice had a normal rate and rhythm and was soft in volume. The May 2010 VA treatment record indicates that the appellant had poor eye contact. With regard to panic attacks, the October 2008 VA examination report reflects that the appellant reported that he worries, but this does not particularly get to the point that he is nervous or shaky inside. The VA examiner noted that the appellant gave some endorsements that suggested a possible past history of spells of terror or panic, suggesting that during these episodes he felt that he was 'coming apart.' The VA examiner noted that there was not enough clarity in the symptom picture to suggest the presence of panic attacks. The appellant's VA treatment records do not reflect that he had any complaints of or treatment for panic attacks. There is no evidence of any difficulty in understanding complex commands. The October 2008 VA examination report reflects that the appellant's thought processes did not demonstrate any flight of ideas, perserverations, and loose associations to questions, tangential thinking, or rambling. The thought content of the appellant was absent for any symptoms to suggest the presence of obsessions or compulsions. There was no clear element of delusions of reference, grandeur, or persecution, although he did seem to have some tendency at times to have paranoid ideation. The June 2010 VA treatment record reflects that the appellant had a linear thought process and his thought content was appropriate to the topic. Regarding the appellant's memory, the appellant's presidential memory was average as was his knowledge of Wisconsin facts. The appellant's ability to demonstrate basic mental calculation was below average. His short-term auditory memory was below average. The appellant's general mental dexterity and short-term recall were also below average. His abstract reasoning tended to be relatively concrete, based on his responses to basic similarities and proverbs. The appellant's ability to demonstrate levels of attention and concentration via the performance of serial 7s was below average, as he made early and repeated errors. The June 2010 and July 2010 VA treatment records reflect that the appellant's memory and cognition appeared intact. At the October 2008 VA examination, the appellant stated that he had thought about suicide, but he had never really tried to kill himself and had no imminent ideation that would suggest greater risk of taking his own life. The VA examiner noted that the appellant also denied any endorsements to suggest the presence of homicidal ideation or intent. A February 2010 VA treatment record reflects that the appellant had complaints of vague suicidal ideation with no intent. The February 2010, June 2010, and July 2010 VA treatment records indicate that the appellant had no suicidal or homicidal ideation, or delusions or hallucinations. The October 2008 VA examiner noted that the work or employment history of the appellant was characterized by his state of unemployment. At the examination, the appellant reported that he last worked full-time in 2002. He reported that he worked in HVAC work and is a class III universal technician. The appellant indicated that work challenges were particularly associated with his physical state, suggesting that difficulties in his legs and his feet are the ones which seem to create more problems for him. However, in describing his daily activities, the Veteran indicated that during a typical morning, Monday through Friday, he worked full-time in the escort service of the facility in which he resided. In his April 2009 notice of disagreement, the appellant reported that he was working. He stated that he worked as an escort for wheelchair-bound in-patients, taking them to and from their medical appointments. He reported that he works approximately 7 hours per day, 5 days a week. He noted that he was only able to work in a sheltered environment and that he is not able to work in any sort of situation in which he would have to act independently or deal with others on a prolonged basis. An April 2009 VA vocational rehabilitation record indicates that the appellant's work was consistently high quality and he generally stuck to job tasks despite obstacles or setbacks. The report also indicated the appellant displayed stable work behavior with little day to day variation. The report indicated the appellant had done very well and that he had been thanked by nursing staff for going the extra mile on the floor. At the time of the October 2008 VA examination, the appellant reported that he was homeless and in the Homeless Veterans Program at the VA Medical Center in Tomah, Wisconsin. He reported that he had been married once and divorced, and had an "off and on" relationship with a significant other. He reported that he had five children. The October 2008 VA examination report reflects that the appellant indicated that he felt some of the distress associated with his traumatic stressor experience washed over into his close relationship. He suggested that this led to him being more distant or cut off. The appellant described some elements of more persistent arousal. He suggested he had some problems getting to sleep, and had increased elements of irritability and occasional feelings of anger. The appellant reported having some greater distance in his relationships with others as a result of his issue of loss due to his stressor of the death of a friend in service. The April 2009 vocational rehabilitation therapy record indicates that the appellant was cooperative with supervisors and achieved quick and easy acceptance with the group. The June 2010 VA treatment record reflects that the appellant reported that he was trying to stay active by helping his son do some remodeling. The July 2010 VA treatment record reflects that the appellant reported that he was happy and hopeful. He stated that he helped his son rehabilitate a house and he fishes two times a month. The February 2010 VA treatment record reflects that the appellant was taking quetiapine for insomnia, depression, and irritability, and bupropion for depression and addiction. The appellant does have mild to moderate PTSD symptoms. The October 2008 VA examination report reflects that the appellant reported re-experiencing unwanted memories that are often triggered by events in the environment of the appellant. The appellant reported unpleasant dreams that are of a nightmare quality. He also had period of stronger physical reactions where he will break into a sweat. The appellant described elements of more persistent avoidance of stimuli associated with some of the verified stressor. He also described some elements of more persistent arousal, irritability, and occasional feelings of anger. He also described great difficulty in concentrating and elements of hypervigilance. The appellant had a GAF score of 64 assigned for PTSD upon VA examination in October 2008. The VA examiner noted that the current GAF score for depressive disorder, not otherwise specified, was 59, and a GAF score of 65 for alcohol dependence, in remission. An October 2008 VA treatment record indicated the appellant had a GAF score of 50. The October 2008 VA treatment record does not provide an explanation for the score and indicates that the appellant was evaluated for 15 minutes. The Board notes that the appellant had Axis I diagnoses of depressive disorder, not otherwise specified, PTSD, and alcohol dependence, in remission. However, the record does not indicate what part of the GAF score is due to PTSD and what part is due to depressive disorder. A GAF score of 64 indicates the appellant had some mild symptoms of PTSD or some difficulty in social, occupational or school functioning, but is generally functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 50 reflects serious symptoms or serious impairment in social, occupational, or school functioning. As the October 2008 VA examiner provided a specific GAF score for the appellant's PTSD, and the examination was conducted only three days after the October 2008 VA treatment record indicating a score of 50, the Board finds the October 2008 VA examination GAF score to be more probative. As a GAF score of 64 reflects mild symptoms of PTSD, the GAF score does not support a finding that the severity of the disability at issue warrants an initial rating higher than 30 percent. Based on the foregoing, the Board concludes that the appellant's disability picture does not most nearly approximate the next-higher 50 percent rating under Diagnostic Code 9411. The Board finds that the appellant's PTSD symptoms are already contemplated by the appellant's 30 percent rating. The record demonstrates that the appellant has occupational and social impairment consistent with occasional decrease in work efficiency and intermittent period 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, chronic sleep impairment and mild memory loss, all of which are contemplated by the 30 percent rating. The appellant's GAF score of 64 at the October 2008 VA examination is consistent with no more than a rating of 30 percent. The October 2008 VA examiner diagnosed the appellant with mild, chronic PTSD. The April 2009 vocational rehabilitation therapy note indicates that the appellant did well at his job as a patient escort and was thanked by nursing staff for going the extra mile. The note also indicated that the appellant achieved quick and easy acceptance with the group and was cooperative with supervisors. The July 2010 VA treatment record indicated that the appellant was happy and hopeful, fished two times a month and helped his son rehabilitate a house. Thus, the evidence reflects that the appellant's PTSD symptoms have some impact on his work and social functioning, but he is still able to work well and function socially. Although the evidence indicates that the appellant had mild memory problems, his speech was normal, and he did not have comprehension problems or panic attacks during the period on appeal. Further, although the appellant reported some thoughts of suicidal ideation without intent, he generally denied suicidal and homicidal ideation. The appellant is taking medication for his PTSD and depression symptoms. However, symptoms controlled by continuous medication are contemplated by a 10 percent rating under Diagnostic Code 9411. Therefore, the Board finds that the appellant's PTSD symptoms do not more closely approximate the criteria for a 50 percent rating, which requires occupational and social impairment with reduced reliability and productivity. The appellant's PTSD symptoms are also not more closely approximated by the criteria for a 70 percent or 100 percent rating for PTSD which would require occupational and social impairment with deficiencies in most areas or total occupational and social impairment. The Board also finds that the evidence of record does not show that at any time during the rating period on appeal, the Veteran exhibited symptoms warranting a higher staged evaluation. Hart, 21 Vet. App. at 509-10. The appellant's symptoms were consistent throughout the rating period on appeal. The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of the appellant's PTSD with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the appellant's disability level and symptomatology. Further, the appellant has not alleged that the schedular evaluation is inadequate. Therefore, the available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, 22 Vet.App. at 115. TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2010). In this case, however, TDIU consideration is not warranted. The appellant has not contended and the evidence does not indicate that the appellant is unemployable as a result of his TDIU. The October 2008 VA examination report specifically indicated that the appellant suggested that his work challenges were due to physical difficulties in his legs and his feet. The appellant also successfully worked in the vocational rehabilitation specialist program. In conclusion, the Board finds that the currently assigned 30 percent rating for PTSD appropriately reflects the appellant's disability picture. While the appellant is competent to report the symptoms he experiences, and the Board finds him credible in this regard, except where in contrast to objective clinical findings, the reported symptoms are consistent with the assigned schedular evaluation. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56 (1990). ORDER Entitlement to an initial evaluation in excess of 30 percent for PTSD is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs