Citation Nr: 1127488	
Decision Date: 07/22/11    Archive Date: 07/29/11

DOCKET NO.  06-16 895	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Shamil Patel, Associate Counsel



INTRODUCTION

The Veteran served on active duty from April 1968 to April 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which granted service connection for PTSD and assigned a 30 percent disability rating effective January 10, 2003.

The matter was previously remanded by the Board in April 2010 for additional development.  That development has been completed, and the case is once again before the Board for appellate review.


FINDINGS OF FACT

1.  The Veteran's PTSD is manifested by depressed mood, anxiety, hypervigilance, intrusive thoughts, chronic sleep impairment, mild memory loss, and GAF scores of 65. 

2.  Abnormal speech, panic attacks, difficulty in understanding complex commands, impaired judgment or abstract thinking, and difficulty in establishing and maintaining effective work and social relationships have not been demonstrated.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 30 percent for PTSD have not been met.   38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.125-4.130, Diagnostic Code 9411 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

A.  Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2010).  Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim.  The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim.  See 73 Fed. Reg. 23353-54 (April 30, 2008).
	
Prior to the initial adjudication of the Veteran's claims, a letter dated in July 2003 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection.  In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.   Id. at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied.

In the Veteran's March 2004 notice of disagreement (NOD), he took issue with the initial disability rating assigned and is presumed to be seeking the maximum benefits available under the law for each appealed issue.  Dingess; see also AB v. Brown.  Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a December 2004 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating.  See 38 U.S.C.A. § 7105(d)(1).  Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b).  See also Dingess.  The claimant was allowed a meaningful opportunity to participate in the adjudication of the claim.  Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006).

The Veteran's service treatment records, VA treatment records, VA authorized examination reports, and lay statements have been associated with the claims file.  The Board specifically notes that the Veteran was afforded VA examinations with respect to his disabilities.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's PTSD.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c) (4).

VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim.  The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review.  The record is complete and the case is ready for review.

B.  Applicable Law

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2010).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2010).

Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2008).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

The Veteran is assigned a 30 percent rating under Diagnostic Code 9411.  A 30 percent rating is assigned 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, and mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411 (2010).

A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent disability rating is assigned 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 that is 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); and inability to establish and maintain effective relationships.  Id.

A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name.  Id.

Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996).  GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work).  DSM-IV at 46-47.  GAF scores from 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, with some meaningful interpersonal relationships.  Id.  GAF scores ranging from 51 to 60 reflect 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).  Id.  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job).  Id.  GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work).  Id.

C.  Evidence

The Veteran underwent a VA examination in August 2003.  With respect to current symptoms, the Veteran reported working for a lawn service company from 1979 through the present.  He had several employees, and described himself as a workaholic.  He attended truck and tractor pulls, drag strips, and flea markets to occupy his time.  He denied any treatment or hospitalization for "nerves."  He denied any history of assaultiveness or suicide attempts.  He reported having flashbacks precipitated by hunting, and he no longer pursued this activity.  He also had nightmares.  He avoided conversations about Vietnam, and had difficulty in dealing with people of Asian descent.  He also reported feeling emotionally numb.  He also described having poor concentration.  He was hypervigilant, and related a history of exaggerated startle responses to stimuli such as fireworks and helicopters.  He denied any difficulty in relating to his employees and tried to be flexible.  

On examination, the Veteran was neatly groomed and dressed.  He was cooperative, though somewhat quiet and reticent at times.  He demonstrated no abnormal movement and his thoughts were clear and goal-directed.  He denied any hallucinations, delusions, obsessive or ritualistic behavior, and suicidal ideation.  He denied having any panic attacks.  His speech was relevant and normal in rate and flow.  He related a history of depression, with down moods due to work pressure and "when things do not go right."  He reported some anxiety symptoms, including worry and tension.  His GAF score was 65.

VA treatment records reflect that the Veteran was seen in December 2003.  He reported that he used to work 12 to 16 hours a day running a lawn service company out of his home.  However, since the end of September 2003, he had experienced feelings of depression and no longer felt like working.  He felt that he could not experience happiness, especially around "non-Vietnam" people.  He discussed how his intense work habits and lack of sleep resulted in him being tired.  He had nightmares related to Vietnam 3 to 5 times per week.  He otherwise got 3 to 5 hours of sleep per night, and did not feel rested when he awoke.  He experience intrusive thoughts about things he saw and did during service.  He reported having difficulties with concentration that were noticed by those around him.  He kept 17 or 18 guns, though only 1 was loaded.  He kept it in his bedroom closet.  He had exaggerated responses to loud noises.  He avoided crowds.  

On examination, the Veteran was appropriately dressed and groomed.  He was alert and oriented, and displayed appropriate behavior.  He had appropriate eye contact and normal motor control.  Speech was normal in rate and rhythm.  He described his mood as depressed, and his affect was dysphoric, tearful, and consistent with the content of his statements.  He was particularly tearful when discussing events associated with Vietnam.  Some anxiety was also noted, which the Veteran attributed to nervousness about being asked questions about Vietnam.  His thought process was logical and goal-directed.  No delusions were noted, and the Veteran demonstrated good attention and concentration.  Judgment and insight were good.  He denied any suicidal or homicidal ideation.

In a February 2004 statement, the Veteran described certain traumatic experiences from Vietnam and how he continued to be troubled by them through the present day.

VA treatment records dated May 2006 show the Veteran had continued problems with impaired sleep and anxiety.  He denied any suicidal or homicidal ideation.  On examination, his mood was fair and his affect was anxious and tearful.  His insight and judgment were intact.

The Veteran was treated again in June 2007.  The Veteran reported that his symptoms had worsened during the past 4 to 5 years.  He maintained occupational functioning, largely because he worked for himself.  He could not tolerate working for someone else.  His girlfriend also played a central role in managing part of his business.  On examination, he was appropriately groomed and dressed.  He was alert and oriented.  His behavior was appropriate, and he was pleasant and cooperative.  Speech was normal in rate and rhythm.  His affect was euthymic.  Thought processes were linear and goal-directed.  He denied any hallucinations, or suicidal or homicidal ideation.

Additional records dated October 2007 show the Veteran participated in group therapy sessions.

The Veteran submitted a June 2008 evaluation from his treating VA social worker.  She stated the Veteran experienced intrusive thoughts about Vietnam and combat.  He also had adverse reactions to encounters with Vietnamese people and the sounds of helicopters flying overhead.  He also experienced nightmares 3 to 4 times per week, as well as flashbacks.  He wondered if he was being punished by God for killing people in Vietnam.  He sometimes got angry with his employees and had to go off by himself to calm down.  He avoided talking about his experiences.  He sometimes attended truck pulls or visited the drag strip, but felt less "on guard" and more relaxed when he was alone.  He did not socialize with anyone other than his son and girlfriend.  He had difficulties with concentration and memory, including names and addresses.  He always sat with his back to a wall when he went out, and checked his house at night to make sure the doors were locked.  He was employed.  The treating social worker stated that the Veteran was severely impaired and could only minimally function.  She stated that he was permanently and totally disabled.

The Veteran underwent a VA examination in April 2010.  The claims file was reviewed by the examiner, who noted that the Veteran had previously been treated with medication and with group therapy.  He stopped the medication because it did not help and caused side effects.  He stopped attending group therapy after about 2 years because he did not appreciate how the other participants were "laughing, joking, and talking about Vietnam."  The Veteran reported having nightmares once every two weeks, with greater frequency around anniversaries or special dates.  He worked on his farm and house to cope with stress, and did not want to be around anyone other than his loved ones.  He saw his son each day and his girlfriend regularly.  He had a few close friends but was not very social with the general population.  He watched sports and kept himself busy in and around his house.  He admitted to drinking more over the past year to help him relax and sleep better.  He denied any other drug abuse or legal troubles.  

On examination, the Veteran was appropriately dressed and groomed.  He displayed no remarkable psychomotor activity.  Speech was normal, and the Veteran was cooperative.  His mood was anxious, and he cried for a few seconds when discussing a particularly traumatic even from service.  The Veteran was oriented in 3 spheres, and he was able to perform serial 7's and spell a word forward and backward.  His thought processes and content were unremarkable, and he was able to interpret proverbs appropriately.  Judgment was intact, and insight was partially intact.  He denied any delusions, hallucinations, or suicidal or homicidal ideation.  He was able to maintain minimal hygiene.  He did not have panic attacks or obsessive behavior.  He reported some behavior of checking doors and windows several times before going to bed, which the examiner noted was not necessarily pathological, as the Veteran lived alone.  Memory was fully intact.  The Veteran denied missing any work due to PTSD.  The examiner noted that the Veteran's PTSD did not result in total occupational or social impairment, and did not result in deficiencies to judgment, thinking, family relations, work, or mood.  There was no reduced reliability or productivity due to PTSD.  There was an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, with otherwise generally satisfactory functioning.  The Veteran's GAF score was 65.

D.  Analysis

Based on the evidence of record, the Board finds that a rating in excess of 30 percent is for PTSD is not warranted.  Throughout the period on appeal, the Veteran's treatment records and examination reports recorded depressed mood, anxiety, sleep disturbances (including nightmares), hypervigilance, and intrusive thoughts.  He also described exaggerated startle responses to certain stimuli, such as loud noises and helicopters.  However, the assigned 30 percent rating under Diagnostic Code 9411 contemplates this level of symptomatology, as noted above.  The April 2010 examiner specifically noted that the Veteran had an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, with otherwise generally satisfactory functioning, consistent with the 30 percent rating.

Moreover, the Veteran's GAF scores of 65 in both 2003 and 2010 reflect some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships.

A higher 50 percent rating is not warranted as the Veteran did not demonstrate any abnormal speech, panic attacks, difficulty in understanding complex commands, or impaired judgment or abstract thinking.  While he reported some social and occupational difficulties, he was able to adequately run a business from home and manage his employees.  He was also able to maintain relationships with his girlfriend, son, and a few close friends.  The Veteran also reported difficulties with concentration and memory, but they were found to be intact on objective examination.

The Board notes that the Veteran's treating social worker indicated that the Veteran was permanently and totally disabled as a result of PTSD.  However, this conclusion is not consistent with the objective or subjective evidence of record.  As noted earlier, the Veteran was able to manage a business and employees.  He maintained good relationships with those close to him, and attended activities such as truck pulls.  He did not manifest any of the symptoms associated with total disability for PTSD, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior.  While the Board acknowledges the impact of the Veteran's PTSD on his social and occupational function, the evidence of record demonstrates symptomatology consistent with a 30 percent rating.

The Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as depression and nightmares.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds the Veteran to be credible in his reports of the symptoms he experiences.  However, when viewed collectively with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned ratings.

E.  Extraschedular Consideration

In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above.

The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  The record does not show that the Veteran has required frequent hospitalizations for his disabilities.  Indeed, it does not appear from the record that he has been hospitalized at all for those disabilities.  Although he reported that he did not feel like working in 2003, his most recent VA examination indicated that he had not missed any time at work due to PTSD, and there is no persuasive evidence in the record to indicate that the service-connected disability on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating.  The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein.  What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disabilities have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate.  Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case.


ORDER

A rating in excess of 30 percent for PTSD is denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs