Citation Nr: 1127410 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 10-04 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Michael A. Steinberg, Attorney ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to December 1972. This matter comes to the Board of Veterans Appeals (Board) from a January 2009 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), that denied the above claim. FINDING OF FACT The Veteran's PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a rating of 30 percent, but not higher, for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in December 2008 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b), as stated above. An additional letter was sent to the Veteran in April 2009 and the claim was readjudicated in a January 2010 statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Regarding the duty to assist, the RO has obtained the Veteran's service and VA treatment records, and provided him with a VA examination in December 2008. There is no evidence of record indicating that the Veteran has received private treatment for his PTSD, and accordingly, no such records could be obtained. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Increased Rating The Veteran was awarded service connection for PTSD and assigned a 10 percent rating in November 1996. He submitted a claim for an increased rating in September 2008. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that 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. In this case, there has not been a material change in the disability level and a uniform rating is warranted. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. The rating criteria provides a 10 percent evaluation when there is occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. A 30 percent rating is provided 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). A 50 percent rating is provided for 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 and maintaining effective work and social relationships. A 70 percent rating is provided 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided 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. 38 C.F.R. §§ 4.125-4.130. The Board further notes that a GAF rating 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), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect 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). GAF scores ranging between 61 to 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 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). 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect some 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 other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130. VA outpatient records reflect that the Veteran was afforded VA treatment for his PTSD as well as his nonservice-connected schizoaffective disorder/schizophrenia and mood disorder. In February 2007, it was noted that the Veteran had gained 40 pounds, but then lost 10 pounds with healthy eating. He reported that he went camping with his daughter, had a great time, and was experiencing much joy in his life. It was indicated that the Veteran had been wood working and also enjoying that aspect of his life. Mental status examination revealed that he was appropriately dressed and groomed. He was cooperative and maintained good eye contact. He appeared happy. His mood was euthymic and his affect was mildly elated. His speech was fluent with normal rate, tone, and volume. His thought processes were linear and goal directed. There was no looseness of association, flight of ideas, or ideas of reference present. There was no evidence of hallucinations or delusional constructs. The Veteran denied suicidal and homicidal ideation, plan, or intent. He was cognitively intact and oriented in all spheres. His memory, insight, and judgment were fair. The examiner indicated that eh Veteran's connection with his daughter had been significantly beneficial to him. His psychotic and depressive PTSD were in good remission, later noted to be fair remission. His schizophrenia was also noted to be in remission. The Veteran was also diagnosed as having a mood disorder, not otherwise specified. His overall mental illness level was moderate. His GAF was 62. Mental status examination findings in October 2007 were generally consistent. However, the Veteran's report of symptoms differed. The Veteran indicated that he felt that he was unable to work and would easily get tired and then depressed with feelings of being in a war zone. The examiner noted that he Veteran remained stable while on medication and staying away from stressful environments. However, the examiner also indicated that it was a vicious cycle if the Veteran became too fatigued, became depressed, and then would have flashbacks, nightmares, and sleep disturbance. The examiner felt that he Veteran was not employable due to underlying medical and psychiatric issues. The diagnosis was PTSD is fair remission; schizophrenia, residual type; and mood disorder, not otherwise specified. The GAF was 62. In December 2008, the Veteran continued to indicate that he could not work due to PTSD. He stated that he only worked part-time and that he was a little depressed and hardly slept. He endorsed startle reaction. The Veteran reported having nightmares. Mental status examination was consistent with the prior evaluations with the exception of slight memory loss. The diagnoses were PTSD, mild and chronic; schizophrenia, residual type; and mood disorder, not otherwise specified. His overall mental illness level was moderate. His GAF was 62. The Veteran was afforded a VA examination that same month. At that the Veteran reported having depression with negative ruminations about past events including war events; having a loss of interest in activities; having a poor appetite; that he felt like crying; and that he felt helpless, hopeless, and worthless. The examiner indicated that the depression was mild. Current hallucinations were denied. Past hallucinations and a psychotic and violent homicidal episode were noted. The Veteran described having a good relationship with one daughter, two sisters, and an uncle, but not with other relatives. He indicated that he had 2-3 close friends including a girlfriend and got along with others. He described having interests and hobbies. The mental status examination was consistent with the prior evaluations and reflected normal findings. The examiner noted that he Veteran did continue to experience PTSD symptoms including avoidance behavior, increased arousal, recurrent and intrusive recollections, distressing dreams and sleep disturbance, and a hard some concentrating. The examiner felt that the Veteran had mild PTSD but was not in remission. The examiner specifically indicated that the Veteran did not meet the criteria for a 10-100 percent rating, naming the criteria categories. The overall GAF was 65, but the examiner declined to assign a specific GAF for PTSD (not including his other psychiatric diagnoses) because to do so would require speculation. The examiner indicated that the Veteran's schizophrenia was the primary cause of the Veteran's decline in occupational and social functioning and that the schizophrenia was not related to the PTSD. The examiner indicated that the Veteran's PTSD itself had not changed in severity and was mild. Based on a thorough review of all of the evidence of record, and resolving doubt in the Veteran's favor, the Board finds that the Veteran's PTSD approximates the criteria for the assignment of a 30 percent rating. 38 C.F.R. §§ 3.102, 4.7. The Board acknowledges that the December 2008 VA examiner stated that the recent decline in the Veteran's functioning level was not due to his PTSD which had remained only mild in degree. However, the evidence of record shows that the Veteran suffers from mild depression, poor sleep, slight memory loss, and decreased concentration. In short, there is sufficient evidence to support a finding of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and as such, his total disability picture approximates the criteria for a 30 percent disability rating. Although a 30 percent rating is warranted, the Veteran's total disability picture does not rise to the severity required for a 50 percent rating. Again, the December 2008 VA examiner specifically indicated that the recent decline in the Veteran's functioning level was not due to his PTSD which had remained only mild in degree, but was due to his nonservice-connected schizophrenia. There has been a change in the Veteran's demeanor and mood since his February 2007 report, but the examiner very specifically indicated that the decreased functioning is not related to his PTSD. In fact, the examiner essentially indicated that the Veteran's PTSD did not result in occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. However, the examiner indicated that the record reflects that his symptoms are controlled by medication and are mild. The Veteran maintains good relationships with some family members and friends. He also has a girlfriend. He is employed part time doing lawn care. At worst, his GAF was 62 suggesting only some mild symptoms or some difficulty in social and occupational functioning. Thus, the preponderance of the evidence shows that the Veteran's PTSD does not meet the criteria for the assignment of a 50 percent rating. The rating schedule represent, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2010). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's PTSD cause impairment in occupational and social functioning, but such impairment is contemplated by the rating criteria and the Board finds that the rating criteria reasonably describe the Veteran's disability. Referral for consideration of an extraschedular rating is, therefore, not warranted. ORDER A rating of 30 percent, and not higher, for PTSD is granted, subject to the statutes and regulations governing the payment of monetary benefits. ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs