Citation Nr: 1124869 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 09-42 135A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Swords to Plowshares WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1994 to February 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that while the Veteran stated in his substantive appeal that he wanted a travel Board hearing, upon further clarification he requested a RO hearing. An April 2010 Informal Conference Report indicates that the Veteran waived the formal hearing previously requested. FINDING OF FACT The service-connected PTSD is productive of depression, hyperarousal, impaired sleeping and anger. There is no evidence of obsessional rituals, spatial disorientation, neglect of personal appearance and hygiene, delusions, illogical speech, near continuous panic, difficulty in adapting to stressful circumstances or memory loss. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for PTSD have not 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 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist 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. The claim for a higher initial rating for PTSD arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). In this case, the VCAA letter is not of record. However a VCAA Notice Response Form sent with the notice is of record and indicates that the Veteran was provided notice of the evidence needed to substantiate the claim. In September 2007, the Veteran responded and indicated that he had no other information or evidence to submit. Because the claim for a higher initial rating is being denied, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. 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 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 the Veteran several VA examinations. The September 2008 and September 2010 examinations are adequate to evaluate the Veteran's service-connected PTSD. The examiners considered the Veteran's subjective complaints, examined him and set forth pertinent clinical findings. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2010). In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. 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 of 71 to 80 denotes that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Score from 61 to 70 are indicative of some 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, with some meaningful interpersonal relationships. Score 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). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). 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). See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). 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). 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 claimant. 38 C.F.R. § 4.3 (2010). Analysis The Veteran asserts that his service-connected PTSD is entitled to a rating in excess of 50 percent. However, a review of the record shows that the Veteran's service-connected PTSD is appropriately rated. The Veteran works full time for "The Challenged Athletes Foundation" which helps returning Veterans heal emotion and physical injuries by playing sports. He has not missed any work due to his PTSD. The Veteran is married and has a child in elementary school. He reports a "good" social life, comprised of a happy marriage and a large group of friends. The Veteran has also consistently appeared well groomed. The Veteran received a VA examination in September 2008 and the examiner had the opportunity to review the Veteran's claims file. The examiner noted that the Veteran was seeing a psychiatrist and a therapist on a regular basis and was taking medication. The examiner noted that the therapy and medication was causing the Veteran to feel better. The Veteran experienced some daily symptoms of depression. He reported a happy home life and denied any suicidal or homicidal ideations. The examiner reported that the Veteran's hygiene was excellent, he was oriented, had no memory loss, had normal speech and there were no obsessional rituals. The Veteran reported no panic attacks, but experienced hyperarousal to loud noises and impaired sleeping due to nightmares. The Veteran was given a GAF score of 65. The examiner noted that the Veteran functioned well; however, there was occasional decrease in work efficiency and possibly intermittent periods of inability to perform occupational tasks when he is under severe stress. VA medical records from 2010 show that the Veteran was experiencing less mood symptoms and less anxiety, he received several GAF scores of 50. He was always appropriately groomed and oriented with logical thought. The Veteran was not experiencing flashbacks or hallucinations. He reiterated that he was enjoying his job. In a letter dated in April 2010 the Veteran's primary physician, Dr. M. T., from VA Mission Valley Medical Center, detailed the Veteran's symptomatology. He stated that between March 2008 and February 2009 the Veteran followed a strict regimen of medication, psychotherapy, group therapy, a proper diet, exercise, chiropractic and neuro-emotional help to mitigate his PTSD symptoms. The examiner noted that in the spring of 2009 the Veteran experienced audible and visible reminders of his service in Iraq and his medication was increased as a result. The Veteran was afforded a GAF score of 50. The Veteran received a VA examination in September 2010. The examiner noted that the Veteran's depression resurfaced but was aided by an increase in medication. The Veteran reported irritability and anger occurring both at work and at home. He stated that he periodically has "run-ins with employees related to his anger." The Veteran had an occasional decrease in work efficiency due to his anger which was brief. He reported a "great" relationship with his wife, an excellent relationship with his son and good social relationships outside of work. The examiner noted that the Veteran's status and quality of life have stayed about the same since his last examination. The GAF score assigned was 65. The Board has compassionately reviewed the Veteran's wife's letter to the Board detailing the changes she has witnessed in her husband since his return from Iraq. However, the medical evidence reflects that the Veteran's PTSD does not warrant an increased rating at this time. The Veteran has consistently had logical and goal directed thought processes, no delusions or hallucinations, no homicidal or suicidal ideations and no long-term memory loss. The Veteran's GAF scores reflect mild to moderate symptomatology. He has not shown significant occupational impairment and has not missed any work due to his PTSD. He also reports that he truly enjoys working. He has many friends with whom he socializes, a stable home life and a happy marriage. The Veteran does not have any neglect of personal hygiene or impulse control. A higher evaluation of 70 percent is not warranted unless there are deficiencies in most areas, such as work, judgment, thinking and mood due to symptoms such as: suicidal ideation; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships. Here, the Veteran has shown that he is able to function very well independently and is alert to person, time and place. While he does have depression and anger issues, he still has a close relationship with his family and friends. The Board is aware that the symptoms listed under the 70 percent ratings are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a higher disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the record does not show the Veteran's PTSD is manifested by symptoms that equal or more nearly approximate the criteria for a 70 or 100 percent. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. §3.321(b)(1) (2010); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluation in this case is not inadequate. A rating in excess of 50 percent is provided for certain manifestations of the service-connected PTSD but the evidence reflects that those manifestations are not present. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's PTSD, as the criteria assess social and occupational impairment to include addressing various psychiatric symptomatology such as orientation, thought content and process, mood and affect, hygiene, behavior, hallucinations, nightmares, sleep difficulty, memory loss, and suicidal and homicidal ideations. Accordingly, referral is not required. Additionally, the evidence does not reflect that the Veteran's PTSD has caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. The Veteran continues to work and has not missed any time from work due to his PTSD. Therefore, an assignment for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (2010) is not warranted. The evidence of record does not warrant a rating in excess of 50 percent for the Veteran's PTSD at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); see also Fenderson, 12 Vet. App. at 126. ORDER Entitlement to an initial evaluation in excess of 50 percent for PTSD is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs