Citation Nr: 1124795 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 09-00 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2001 to June 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT PTSD is productive of suicidal ideation without plan or intent, social isolation, irritability, difficulty establishing and maintaining effective relationships, insomnia, hallucinations, flashbacks, slight decrease in memory and excessive anger. Speech and thought processes are logical and coherent; there is no evidence of obsessional rituals, illogical speech, disorientation as to time and place or neglect of personal appearance and hygiene. CONCLUSION OF LAW The criteria for an initial evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code (DC) 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted 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 (e.g., 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. A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational or 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). Under DSM-IV, GAF scores from 51 to 60 generally reflect some 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 from 41 to 50 reflect serious symptoms (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). A GAF score in the 31 to 40 range indicates impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). The Veteran and his family assert that the 50 percent rating for PTSD does not accurately reflect the severity of his symptomatology and request an increased rating. After carefully and compassionately reviewing the evidence of record, the competent and credible evidence shows that his symptoms are most consistent with a 70 percent rating. At a hearing before the undersigned, the Veteran testified that he was able to maintain work but that his problems sleeping greatly affected his work. He also testified to having few friends, feeling suicidal, and having problems in his marriage. He also stated that he stopped attending church. The Veteran received an initial VA examination in June 2006. At this time he was beginning an online business which had yet to yield an income. The medical evidence showed severe insomnia, nightmares, flashbacks in the form of re-living his experiences in Iraq, hallucinations in the form of visualizing dead soldiers, panic attacks, shortness of breath, hypervigilance and violence towards his wife. At one time, the Veteran choked his wife and during a separate incident he struck her, almost dislocating her shoulder. He also displayed depression with low energy levels, decreased motivation and profound feelings of guilt. The evidence showed suicidal ideation, but without plan or intent. A separate examination conducted for the Veteran's overall health, revealed intermittent fatigue related to PTSD. The GAF was 50, indicating serious impairment in social and occupational functioning. VA medical records dated in 2007 show GAF scores of 36 and 43, showing major impairment in several areas such as work and family. Individual psychotherapy reports dated in January 2008 showed that he experienced continuous nightmares, marked anxiety panic attacks, emotional numbness and isolation. On the day his newborn son was brought home from the hospital he "exploded at his family for rearranging the baby furniture and to their puzzlement, started looking under the crib and furniture for signs of danger." The treating health care professional also reported that the Veteran was forced to take a week off work in aggregate due to his PTSD symptoms and had no outside interests. The GAF score was 38, reflective of major impairment. A January 2008 notation revealed that "the Veteran has been unable to deal with the ordinary responsibilities and events in his civilian life." While his IQ was above average, he had major difficulties with remote memories and was forgetful. He experienced helplessness and hopelessness and his hypervigilance led to impaired concentration. The examiner also stated: "The Veteran is unable to work effectively due to PTSD symptoms of irritability, intolerance of human contact in a work like setting, anxiety and panic, episodes of rage, impaired attention and concentration and marked distrust . . . His current global impairments are severe, greatly restricting and permanent. " The Veteran was afforded a VA examination in September 2008 and the examiner reviewed the VA medical records. He reported that he started his own vending business in April 2008 because he was able to set his own hours and would not have to work for a boss. He reported problems waking up, because even with medication he could only sleep for at most six hours. With regard to his new job, he avoided driving and delivering due to hypervigilance. In order to reduce the effects of his symptoms, he maintained a very rigid schedule which placed limits on his life. He rarely socialized with friends and did not have any hobbies. The GAF was 45 due to irritability, hypervigilance, relative social withdrawal, depression, disturbed sleep patterns and a history of suicidal ideation. The Veteran submitted a personal statement taken from his journal and the Board has compassionately read through his fears and anxieties. His wife stated that their marriage had been on the "brink of divorce due to the Veteran's mood swings, anger and disinterest on a nearly daily basis." His mother confirmed that he was depressed and has trouble in social situations. As discussed above, GAF scores of 31 to 50 represent "major/serious impairment in social and occupational functioning." In addition, the 2008 examiner noted that the Veteran's PTSD symptoms caused deficiencies in his work due to irritability, anxiety, panic, episodes of rage, impaired attention and marked distrust. The Board notes that even though the Veteran maintains employment, he has difficulty getting out of bed in the morning and will not drive a truck or make a delivery due to hypervigilance. He also worked out of a home office and does not have to interact with many people. The Veteran has shown occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood; impaired impulse control; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships, warranting a 70 percent rating. Nonetheless, the Veteran is not entitled to a rating of 100 percent, as he has not shown total occupational and social impairment. He is self employed and can maintain his job. While he has shown that he gets nervous in social situations and has minimal social contacts, he is married and has a relationship with his parents and several friends from high school. Additionally, the Veteran does not exhibit persistent delusions; there is no constant danger of him hurting himself or others and he has not shown disorientation as to time and place. Furthermore, the records have shown that he is able to maintain his personal hygiene and has appeared appropriately groomed and attired. Therefore, a rating in excess of 70 percent is not warranted. Next, the Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as difficulty sleeping, depression, low energy level, suicidal ideation, irritability, impaired attention, and the like, are the symptoms included in the criteria found in the rating schedule for his disability. Therefore, the schedular criteria are not inadequate for rating his disability, and the other two steps in the analysis of extra-schedular ratings need not be reached. The Board also notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU is not raised by the record as the evidence of record fails to show that the Veteran is unemployable. Rather the record shows that he has been and remains employed. No consideration in this regard is needed. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Veteran received notice of the evidence needed to substantiate an increased rating claim and Dingess notice in a September 2008 letter. Based on the foregoing, no further development is required with respect to the duty to notify. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records, pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained the Veteran's service treatment records, VA treatment records and afforded him several VA examinations. The June 2006 and September 2008 examinations are adequate to evaluate his service-connected PTSD. The examiners considered his subjective complaints, examined him and set forth pertinent clinical findings. VA has substantially complied with the notice and assistance requirements and he is not prejudiced by a decision on his claim at this time. ORDER An initial rating of 70 percent, but no more, for PTSD is granted, subject to the regulations pertinent to the disbursement of monetary funds. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs