Citation Nr: 1126499 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 10-23 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial rating greater than 10 percent for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. Delhauer, Law Clerk INTRODUCTION The Veteran served on active duty from June 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran's representative requested in a March 2011 letter that the Board remand this claim for readjudication by another RO, as adjudicators at the Denver RO are potentially biased because the Veteran's job requires his presence at that RO. The representative cited M21-MR Part III, Subpart ii, Chapter 4, Section A as recognizing the potential for such bias. This chapter discusses folder storage, and states files of employees who do not work for the Veterans Benefits Administration, but interact regularly with its employees, are to be locked. See VA Adjudication Procedure Manual, M21-1MR (M21-1MR), Part III, ii.4.A.3.d. The section cited does not discuss, and there is no other evidence of, a requirement to adjudicate claims by an alternative RO in a case such as the Veteran's. Therefore, the Board finds a remand is not required and adjudication will proceed. FINDINGS OF FACT The Veteran's posttraumatic stress disorder (PTSD) is manifested by anxiety, chronic sleep impairment, anger and irritability, and panic symptoms. CONCLUSION OF LAW The criteria for an initial 30 percent rating, but no greater, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2010). A May 2009 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's VA medical treatment records have been obtained; the Veteran has not identified any private treatment records or service treatment records pertinent to his appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). A VA examination was conducted in August 2009; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran was interviewed as to his psychiatric treatment history, current medications, relevant medical history, social history, substance use history, employment history, activities of daily living, psychiatric symptoms, and depression; a mental status examination was also performed. The examiner gave her opinion regarding the effect of the Veteran's PTSD symptoms on his social and occupational functioning. There is no indication in the record that any additional evidence, relevant to the issue of entitlement to an initial rating greater than 10 percent for PTSD, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2010). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2010); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased rating for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for the Veteran's PTSD was granted in a September 2009 rating decision, and an initial 10 percent rating assigned under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. Diagnostic Code 9411 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted when the medical evidence of record shows occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress or symptoms; or, when symptoms are controlled by continuous medication. See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula. A 30 percent rating is warranted when there is 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, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent rating is warranted where the disorder is manifested by 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 for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve 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). In addition to PTSD, diagnoses of alcohol dependence and cannabis dependence are also of record. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, the August 2009 evaluation indicates that the Veteran's alcohol dependence and cannabis dependence are secondary to his PTSD. As such, all psychiatric symptoms and diagnoses have been considered in evaluating his service-connected PTSD. The Board finds an initial rating of 30 percent, but no greater, is warranted. The Veteran identified anxiety and hyperarousal as the prominent symptoms of his PTSD in May 2009. It was noted at his Vet Center intake in February 2009 that he had been on an anti-anxiety medication for three years, as well as self-medicating with alcohol. The August 2009 VA examiner noted the Veteran's anxiety level had been high for many years, and that he used alcohol to treat his nervousness and edginess, drinking heavily and during the day at one point. He also noted the Veteran startled easily to loud, sudden noises. In October 2009 the Veteran was prescribed a new anti-anxiety medication to help his ongoing anxiety and an exaggerated startle response. The medication helped to decrease the Veteran's anxiety, as well as his alcohol consumption, so the dosage was doubled in January 2010 to help with his "ongoing residual [symptoms]." His psychiatrist noted in June 2010 the Veteran felt his current medication was optimal, though he does still experience some symptoms, indicating the Veteran's symptoms are not fully controlled by continuous medication. The presence and recurrence of anxiety symptoms despite continuous medication also merits a 30 percent rating. However, the August 2009 VA examiner described the Veteran's symptoms as mild. Further, the Veteran reported in October 2009 that he no longer required talk therapy because he was stable on his medication, that he was still stable and well on his medication in December 2009, and that he was continuing to do well on his medication in March 2010. The Veteran reported to his Vet Center psychologist that his anxiety was considerably improved and his alcohol intake reduced at an October 2009 visit, that his alcohol intake was reduced even further at a January 2010 visit, and he was doing well on his medication at March and June 2010 visits. In sum, this indicates that although the Veteran's symptoms, especially his anxiety, are not fully moderated by medication, his anxiety does not manifest to a severity or frequency as to warrant a 50 percent rating. To that end, the Veteran reported a history of panic attack-like symptoms at the August 2009 VA examination, including shortness of breath, shakiness, and sweating. Again, however, panic attacks are not noted in the VA records dated during the appeal period; even if the Veteran experienced panic attacks, the record does not show that he experienced them of such a frequency (more than once a week), or had similarly uncontrolled anxiety, as to merit a 50 percent rating. The Veteran has also experienced sleep impairment. At his February 2009 Vet Center intake the Veteran reported sleep disturbance. At his August 2009 VA examination he reported the medicinal marijuana he took for his ankle would help him fall asleep, but he would occasionally wake in the middle of the night, and this was more likely following "particular interactions with veterans" at his job during the day. The Veteran also reported he does not have nightmares of Vietnam "anymore," but also noted in October 2009 he would wake in the mornings in an anxiety state, and in June 2010 that this sudden anxious awakening would still happen on occasion. The Veteran's treatment team noted in a July 2010 letter he tends to wake in the middle of the night and cannot fall back asleep. Thus, while the Veteran clearly has chronic sleep impairment, he has not reported this sleep disturbance impairs his memory, disturbs his motivation or mood, or otherwise causes social or occupational impairment to support the assignment of greater than a 30 percent rating. Further, the Veteran has experienced symptoms of suspiciousness and hypervigilance. The August 2009 VA examiner noted the Veteran was particularly hypervigilant at night, he would have the urge to check the doors and his property, and he kept three dogs for security. However, he denied paranoia, and the hypervigilance does not appear to have negatively impacted the Veteran's reliability or productivity resulting in social or occupational impairment. Any conflicts with employers noted by the Veteran have been attributed to his anxiety or his irritability and anger, not to suspiciousness. The Veteran's PTSD has resulted in anger and irritability. The August 2009 VA examiner noted the Veteran was easily upset and could have "verbal run-ins and road rage with strangers," and had some physical scuffles in the past. In August and October 2009 treatment records, the Veteran also reported he needed more patience working with employers and non-veterans than he necessarily had on a daily basis, and that he would struggle to manage his patience and temper while working with those groups. However, the Veteran's psychologist noted in October 2009 the Veteran's irritability was significantly diminished with his anti-anxiety medication; it was reported in December 2009 his medication was helping him better control his temper, and that he was not getting into as many arguments as he had in the past. And despite the symptoms of anger and irritability, the evidence does not indicate impairment in judgment. In May 2009 he reported he would walk away when he got angry, and in March 2010 he reported using anger self-management techniques whenever he would feel unusually irritable. That the Veteran was able to manage his anger and irritability symptoms with medication and personal anger management techniques reflects less than the social or occupational impairment required for a higher rating. There are some symptoms of depression of record. At his February 2009 intake interview the Veteran reported a low energy level. In May 2009 he reported some depression, but that it seemed to be managed primarily by avoidance and with regular exercise. The Veteran denied any feelings of pervasive sadness or depression at the August 2009 VA examination, as well as denying suicidal thinking. The Veteran stated he felt his interest, motivation, and energy levels were fairly good. While there is some evidence of depression, the record does not indicate that it results in social or occupational impairment. The evidence of record indicates the Veteran is generally functioning satisfactorily. At his February 2009 intake it was noted that his appearance was neat, he had a friendly cooperative manner, above average intelligence, his speech was appropriate, he was oriented to the time, place and person, had normal memory function, an appropriate affect, was relaxed and at ease, and showed good judgment. Some disorganized thinking was noted, but not expanded upon, and there is no further evidence of abnormal thought processes. The August 2009 VA examiner noted the Veteran was generally polite and cooperative and quite articulate, although his mood was "obviously anxious" and his affect "restricted and reserved." The Veteran's memory and concentration levels tested well, and he received a 29/30 on the Saint Louis University Mental Status Examination, noted by the examiner as a good performance. There is no evidence the Veteran's affect, self-care, behavior, speech, or memory impair his social or occupational functioning as to merit a 50 percent rating. The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score of 51-60 is appropriate where there are "[m]oderate 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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed.1994). A GAF score of 61 to 70 reflects some mild symptoms, for example depressed mood and mild insomnia; or some difficulty in social, occupational, or school functioning, for example occasional truancy, or theft within the household; but generally functioning pretty well, and has some meaningful interpersonal relationships. Id. The Veteran's GAF score for PTSD and related substance abuse diagnoses at the August 2009 VA examination, representing the Veteran's functioning within the previous three months, was 60. The reported GAF scores in January 2010, March 2010, and June 2010 were all 59. Although the July 2010 letter from the Veteran's treatment team reported a GAF score of 53, no explanation for the sudden decrease in GAF score was provided, or specific details as to how the Veteran's symptoms may have worsened or his functioning may have decreased. Further, the clinical findings at this examination were consistent with those at which GAF scores of 59 or 60 were assigned. The primary bases given by the Vet Center clinicians included anger, insomnia, and difficulty controlling his alcohol intake. These symptoms were all considered in those evaluations of record which assigned higher GAF scores. Therefore, the Board concludes the multiple GAF scores of 59 and 60, over almost a year-long period, more clearly indicate the Veteran's level of social, psychological, and occupational functioning; and that the GAF of 53, if valid, appears to reflect temporary exacerbation of the overall condition. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and a 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. 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran has been married twice, for 20 and 19 years respectively. At an August 2009 visit, the Veteran said he and his first wife married very young and remained together for 19 years, with a few trial separations. The Veteran married his second and current wife two years after his divorce, and in April 2009 stated he was happily married. In February 2009 the Veteran stated that upon his return from active service he felt alienated from the civilian world. However, in college he formed a "Vet's Club" to meet people like himself, and got involved in intramural sports. At the August 2009 VA examination the Veteran stated he currently has one good friend whom he has known from Vietnam, and that although he has given up golf, he currently enjoys hunting. The two multi-decade marriages, social club and sport involvement, and a long-time friend indicate the Veteran does not have difficulty in establishing and maintaining effective social relationships. The Veteran has worked for 5 years in a state office where he helps veterans utilize their VA education benefits. The Veteran's previous two jobs also involved working with veterans, which he held for 17 and 7 years respectively. There is no evidence of record the Veteran left these previous jobs because of occupational impairment caused by PTSD. The August 2009 VA examiner noted the Veteran mostly tends to office work, but he may also travel across the state to various colleges. In October 2009 the Veteran stated he loves working with veterans and has no trouble working with them. In June 2010 the Veteran's psychiatrist stated the Veteran is "'driven' to pursue his work with 'passion' as he identifies with the veterans whom he seeks to help." The psychiatrist voiced a concern that although this is a strength toward the Veteran's job performance, it also "contributes to a level of overactivity, stimulation of [Vietnam] memories, and impending 'burn out.'" In their July 2010 letter, the Veteran's treatment team stated the Veteran has never felt comfortable working with populations other than veterans. To this end the Veteran reported in February 2009 he had left a private job after college after 15 months because he did not like the policies of a private, for-profit organization. The Veteran has also reported problems managing his patience and temper with employers and non-veterans at his current job, as discussed above. However, there is no evidence of record these problems have led to workplace conflict or impaired the Veteran's ability to perform his job. Although the Veteran states he is most comfortable working with veterans, and has reduced his hours some citing burn out and his lack of patience, the Veteran has been employed working with veterans for 30 years, is the director of his current office, enjoys his work, and has not reported workplace conflicts because of his PTSD symptoms. Simply put, there is no evidence of occupational impairment beyond that contemplated by a 30 percent rating. Consideration has also been given regarding whether the assigned schedular ratings are inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation 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. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a 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. Thun, 22 Vet. App. at 116. The schedular ratings in this case are adequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorders, but the medical evidence reflects that those symptoms are not present in this case. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's disabilities. He has not required hospitalization for PTSD, and marked interference of employment has not been shown. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule and no extraschedular referral is required. In the decision above, the Board has found that the evidence supports the assignment of an initial rating of 30 percent for PTSD. However, because the Veteran's PTSD is not manifested by a degree of social and occupational impairment as to merit a higher rating, the preponderance of the evidence is against the assignment of an initial rating greater than 30 percent. Accordingly, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating of 30 percent, but no greater, for PTSD is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs