Citation Nr: 1125895 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 07-39 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. What evaluation is warranted for posttraumatic stress disorder (PTSD) from June 16, 2004 to August 9, 2007? 2. What evaluation is warranted for PTSD from August 10, 2007 to May 11, 2009? 3. What evaluation is warranted for PTSD from May 12, 2009? REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of what evaluation is warranted for posttraumatic stress disorder from May 12, 2009 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From June 16, 2004 to August 9, 2007, posttraumatic stress disorder was productive of symptoms which were not severe enough either to interfere with occupational and social functioning or to require continuous medication. 2. From August 10, 2007, to May 11, 2009, posttraumatic stress disorder was productive of symptoms controlled by continuous medication. CONCLUSIONS OF LAW 1. From June 16, 2004 to August 9, 2007, the criteria for a compensable rating for posttraumatic stress disorder were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). 2. Between August 10, 2007 and May 11, 2009, a 10 percent rating, but not higher, for posttraumatic stress disorder is warranted. 38 U.S.C.A. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. The Board notes that, in January 2009, the RO requested any available records from the Social Security Administration and that a response from the Social Security Administration stated that such records were unavailable. In an April 2009 correspondence, the Veteran was informed as to the unavailability of these records. The Board finds that the Veteran was properly notified as to the unavailability of the records and that any further attempts to obtain such records would be futile. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant 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). Increased Rating Claims-Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of the 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. Regulations establish a General Rating Formula for rating psychiatric disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestations of particular symptoms. The use of the phrase "such as" in 38 C.F.R. § 4.130, however, demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). With regard to psychiatric disorders, regulations provide that the frequency, severity, and duration of psychiatric symptoms must be considered as well as the length of, and the veteran's ability to adjust during, periods of remission. The evaluation assigned must be based on all the evidence of record that bears on occupational and social impairment and not merely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Finally, the evaluation assigned to a psychiatric disorder depends on the occupational and social impairment actually caused by psychiatric symptoms. 38 C.F.R. § 4.130. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, which addresses posttraumatic stress disorder, a 10 percent evaluation is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation 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). Id. One factor for consideration in evaluating mental disorders is the Global Assessment of Functioning (GAF) 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 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). 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). A score of 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A score of 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school function (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A score of 71 to 80 reflect 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. Factual Background Procedurally, in March 2007, the Board granted the Veteran service connection for posttraumatic stress disorder. In a May 2007 rating decision, a noncompensable disability evaluation was assigned effective June 16, 2004. The Veteran asserts that his symptoms warrant a higher rating for his PTSD. The Veteran was afforded a VA examination in November 2004. During his examination the Veteran explained that after service he worked in a series of different jobs until he got a job as a machine operator in a mill where he worked for ten years. He then took a job for the postal service where he worked for twenty three years and where he continued to work. The Veteran stated that his psychiatric symptoms have never caused him to lose time at work. The Veteran explained that he had been married for thirty-five years and had three adult children. He described a good relationship with his wife and a pretty good relationship with his children. He stated that he had very few friends. It was noted that the Veteran was capable of performing his activities of daily living and did so adequately. The Veteran described PTSD symptoms to include intrusive thoughts, nightmares, avoidance of television regarding Iraq. The Veteran denied other symptoms consistent with PTSD. He stated that he felt depressed due to the death of a friend and stated that he felt like it was a struggle to work and deal with finances. He stated that he had difficulty concentrating at times. On mental status examination the Veteran was described as pleasant and cooperative. Eye contact was intermittent. Speech rhythm, rate and volume were normal. The Veteran denied suicidal and homicidal ideation as well as auditory and visual hallucinations. Thought process was goal-directed and there were no impairments in communications noted. A global assessment score of 75 was provided, notably, however, the Veteran was not diagnosed with PTSD during this examination. A December 2004 VA medical center consultation note stated that the Veteran reported anxiety symptoms related to his experiences in Vietnam. He stated that he felt as if he was continually on patrol and feared that something bad was about to happen. The Veteran also noted periods of depression and stated that his sleep which was limited to about five hours. The Veteran stated that he had numerous daydreams and intrusive memories about the war. He denied suicidal ideation. An April 2005 VA medical center treatment note reported that the Veteran's PTSD symptoms were more prominent at the time of reporting. An August 2007 individual therapy note reported that the Veteran had normal speech with an increased rate and normal rhythm. There were no obsessions, delusions or paranoia observed. Linear thinking with some circumstantialities was noted. There were no observations of suicidal or homicidal ideation or hallucinations. Insight and judgment were intact. A diagnosis of rule out PTSD was provided and it was noted that the Veteran was to start Wellbutrin to target depression. In an August 2007 VA medical center therapy note it was noted that the Veteran's condition had recently become worse for the past few months. During his examination the Veteran noted that he became emotional when discussing Iraq and that he complained of poor sleep. He stated that he had occasional nightmares and vivid memories of trauma during the day. The Veteran stated that he intentionally avoided stressful situations especially crowded places as he needed an escape route. The examiner noted that the Veteran's speech was generally fluent and productive, but was very frequently irrelevant and tangential. There were no hallucinations or reported and the Veteran denied any suicidal or homicidal ideation. He reported that, before starting psychotropic medications, he felt sad sometimes but he denied current or recent das mood or other symptoms of depression. It was noted that the Veteran had been a mailman for twenty-six years and that he liked his job. The Veteran was examined by a VA examiner in January 2008. During his examination, the Veteran stated that he was still employed as a mail carrier, that he never missed work except for medical appointments, and that he had not missed any work due to psychiatric symptoms. It was noted that the Veteran was married to his first and only wife and that he had a good relationship with his wife and children. The Veteran reported that he was friendly with some neighbors and that he had a couple of friends. The examiner stated that records indicated that the Veteran had been a loner all of his life and that he had difficulty socializing prior to his military service. It was noted that therefore, that there did not appear to be any direct impairment in social functioning due to military service or current psychiatric symptoms. The examiner noted that the Veteran's capacity for adjustment was not impacted or impaired by psychiatric symptoms or symptoms of PTSD. The examiner stated that, overall, there was a significant decrease in the number and amount of symptoms that the Veteran reported since his last examination. The Veteran reported significant symptoms improvement with the initiation of psychiatric medications. A global assessment score of 75 was provided, of note however, the examiner stated that the Veteran did not meet the criteria for a diagnosis of PTSD. In an April 2008 treatment note it was reported that the Veteran had a Global assessment score of 54-56. It was also noted, however, that the Veteran had a recent major stressor as his brother had died unexpectedly the week before. A VA medical center individual therapy note dated in August 2008 reported that the Veteran did not meet the criteria for PTSD but appeared to be experiencing problems related to depression and cannabis dependence. It was noted that the Veteran had experienced multiple stressors both before and after service. The Veteran was recommended to adhere to psychotropic medication to help with his depression and sleep. In a September 2008 statement submitted by the Veteran and his wife, it was noted that the Veteran took medication to "take the edge off." An April 2009 individual therapy noted that the Veteran had had difficulty with depression stemming from the 1980s. It was noted that the Veteran smoked cannabis daily and did not intend to stop. The Veteran reported that he had worked as a mail carrier for approximately 30 years and that he was married to his first and only wife. On mental status examination, the Veteran's speech was found to be of a normal rate and volume and that his thought process was logical and goal-directed. Insight was minimal regarding his use of cannabis. The psychiatrist stated that the Veteran did not see how chronic cannabis use could affect his mood or general heath. He did not have any hallucinations or delusions nor did he have homicidal or suicidal ideations. Diagnoses of cannabis dependency, substance related anxiety disorder and PTSD were provided. The Veteran was assigned a global assessment score of 63. A January 2009 VA medical center psychiatry note reported that the Veteran may have PTSD. The Veteran reported that he felt sad due to many things going wrong in his life and stated that he slept for five to six hours. He endorsed a lack of concentration and recent memory problems, and he denied suicidal or homicidal ideations, hallucinations or delusions. Diagnoses of recurrent major depressive disorder, marijuana abuse, rule out substance-induced mood disorder and a history of PTSD were provided. A global assessment score between 60 and 65 were provided. The Veteran was started on Celexa for his depression. Analysis For the period between June 16, 2004 and August 9, 2007, the evidence demonstrates that the Veteran had a mental disorder which had been formally diagnosed but his symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. A noncompensable disability rating is therefore most appropriate for this period. In support of this finding is the November 2004 VA examination report which noted that the Veteran experienced some symptoms of PTSD. Still, the examiner found that the Veteran had a good relationship with a few friends and with his wife and family and stable employment. The evidence for this period on appeal does not demonstrate the use of medication to regulate PTSD symptoms and the Veteran was not impaired occupationally and socially due to his PTSD symptoms. Of note, while the Veteran is shown to have few friends, the record demonstrates that the Veteran was "a loner" prior to service and thus this cannot be attributed to his PTSD symptoms. Further, in November 2004, the Veteran was given a global assessment score of 75. Such a score reflects transient and expectable reactions to psychosocial stressors or no more than slight impairment in social, occupational or school functioning. Moreover, what slight symptoms considered in the assignment of this score were given without a corresponding diagnosis of PTSD. Presumably then, these symptoms were not due to PTSD at all and the Veteran is shown to have been fully capable of handling his occupational and social functioning during this time. The Board notes that, on multiple occasions, the Veteran has suggested that he has been penalized due to the fact that he has been able to cope with his PTSD. In this regard, the Board emphasizes that ratings are based on the average impairment of earning capacity. Thus, a Veteran is compensated under the schedular criteria not secondary to the fact that he has been diagnosed with a disorder, but instead in order to supplement the loss of earning capacity due to that disorder. As noted above, the evaluation assigned to a psychiatric disorder depends on the occupational and social impairment actually caused by psychiatric symptoms. 38 C.F.R. § 4.130. Thus, as here for the period between June 16, 2004 and August 9, 2007, where the Veteran's ability to function both occupationally and socially is simply not shown to be limited by his PTSD, compensation is not warranted. The Board finds that beginning August 10, 2007, the Veteran is shown to use continuous medication for regulation of his symptoms. This use continued through May 11, 2009, the date of the last available treatment record. As such, a 10 percent disability rating is warranted during this term. As noted, in August 2007, the Veteran was prescribed Wellbutrin to target his depression and a diagnosis of rule out PTSD was provided. Giving the Veteran the benefit of the doubt, the Board finds that this demonstrates the use of continuous medication for PTSD symptomology. The Board notes that at times the evidence has demonstrated symptoms to include depression, hypervigilance, avoidance, intrusive thoughts and sleep disturbance. The evidence has not, however, demonstrated that any of the Veteran's symptoms have caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In fact, the Veteran is regularly shown to have a good relationship with his family and he is shown to have regular employment. The Veteran's January 2008 VA examination noted that the Veteran had never missed work due to his psychiatric symptoms and that there was no lost time from work and no decreased productivity due to his symptoms. The Veteran also noted during this examination that his symptoms had decreased substantially due to his regular use of medication. At no time are the Veteran's PTSD symptoms shown to diminish his ability to perform the duties of his employment. Between August 10, 2007 and April 9, 2009, the Veteran was given global assessment of functioning scores ranging between 54 and 75. The Board notes that this is a substantial range, where the highest scores provided describe symptoms which are transient and expectable to psychosocial stressors and the lowest scores describe symptoms which are considerate moderate to describe moderate difficulty in social, occupational or school functioning. Again, however, the evidence does not demonstrate that the Veteran's PTSD symptoms have affected his work. Further, the Veteran received the lowest of his global assessment of functioning scores in April 2008. This low score is shown to be related to the unexpected death the Veteran's brother. Further, his global assessment score of 63 in April 2009 was made based on the Veteran's multiple diagnoses of cannabis dependency and PTSD and was made after a discussion as to how the appellant's chronic cannabis use could affect his mood. Thus, this global assessment of functioning score is shown at least in part to be attributed to the Veteran's limitations due to his chronic use of marijuana as opposed to his PTSD symptoms. Thus, while the Board finds that a 10 percent disability evaluation is appropriate, a higher disability rating is not, when considering the totality of the evidence pertaining to the term from August 10, 2007 through May 11, 2009. Finally, the Board further finds that as no functional impairment of occupational activities has been shown, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009). In adjudicating the appeal for an initial compensable rating the Board considered the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (claims for higher evaluations include a claim of entitlement to a total rating based on individual unemployability when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran has never claimed that his service connected PTSD prevents him from obtaining and/or maintaining employment. Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for a total disability evaluation based on individual unemployability due to service connected disorders. ORDER From June 16, 2004 to August 9, 2007 entitlement to a compensable disability evaluation is denied. From August 10, 2007 to April 9, 2009 a 10 percent disability evaluation is granted. REMAND The Veteran was last afforded a VA examination in January 2008 and the last available treatment record is dated May 11, 2009. Given the fact that it has been over three years since his last examination and given the fact that new evidence may show that the Veteran's symptoms have increased, a new examination is in order. See 38 C.F.R. § 3.326 (2010) (where there is a claim for disability compensation but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should take appropriate action to secure any pertinent treatment records dating since May 11, 2009, which have not been previously secured for inclusion in the claims file. All attempts to secure this evidence must be documented in the claims file. If the AMC/RO cannot locate such records, they must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the AMC/RO should schedule the Veteran for a new examination with a psychiatrist. The Veteran's claims folder, to include any newly obtained treatment records, must be provided to the examiner for review. All indicated studies must be performed, and all findings should be reported in detail. In accordance with the latest Automated Medical Information Exchange worksheets for posttraumatic stress disorder, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his posttraumatic stress disorder. The examiner must provide an opinion concerning the degree of social and industrial impairment resulting from posttraumatic stress disorder alone, to include whether posttraumatic stress disorder alone renders him unemployable. A full rationale must be provided for any opinion offered, with a complete discussion of the evidence of record. A global assessment of functioning score should be provided for posttraumatic stress disorder, with an explanation of the significance of the score assigned. A written rationale for all opinions expressed must be provided 3. The Veteran is to be notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. The AMC/RO must review any medical examination report to ensure that it is in complete compliance with the directives of this remand. If it is deficient in any manner, the AMC/RO must implement corrective procedures at once. 5. Thereafter, the RO must readjudicate the question of what rating is warranted for PTSD since May 12, 2009. If the benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs