Citation Nr: 1127622 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 09-32 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. During the pendency of his appeal, the Veteran's service-connected PTSD has been manifested by complaints of sleep disturbance, intrusive recollections, nightmares, irritability, hyper startle response, hypervigilance and avoidant behavior, with panic attacks and delusions on one occasion, and resulted in occupational and social impairment with reduced reliability and productivity; there is no evidence of thought disorder, obsessional rituals, intermittently illogical, obscure or irrelevant speech, near continuous panic attacks, disorientation, or inability to work or to maintain interpersonal relationships attributed to his PTSD. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a 50 percent disability rating, and no more, are met for PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties To Notify And Assist When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, 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 that pertains to the claim. 38 C.F.R. § 3.159, as amended, 73 Fed. Reg. 23353-56 (Apr. 30, 2008); see Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini II, 18 Vet. App. at 119. Further, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the Veteran with notice of what evidence not previously provided will help substantiate his/her claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the Veteran of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim for service connection has been substantiated, and any defect in the notice regarding that claim was therefore not prejudicial to the claim. See Dingess, 19 Vet. App. at 491. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision 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). In this case, the Veteran submitted his claim for an increased disability rating in July 2008. He was sent a letter later that same month which notified him that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical evidence demonstrating a worsening or increase in severity of the disability. The July 2008 VA letter, also notified him that a claimant could also provide, or ask VA to obtain, lay evidence, as well as medical evidence, demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice also provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. Specifically, he was informed in the letters of types of evidence that might show such a worsening, including statements from a doctor containing the physical and clinical findings; and statements from other individuals who were able to describe from their knowledge and personal observations in what manner the disability had become worse. The July 2008 letter also informed him of the evidence needed for the assignment of evaluations and effective dates for increased rating awards. Dingess. The July 2008 letter was issued prior to initial adjudication of the Veteran's claim in January 2009. In view of this, the Board finds that VA's duty to notify has been fully satisfied with respect to this claim. VA has secured or attempted to secure all relevant documentation to the extent possible. The Board notes that the Veteran's VA and Vet Center medical treatment records and evaluations are of record, as well as the Veteran's written contentions regarding the circumstances of his disability, and these records were reviewed by both the RO and the Board in connection with the Veteran's claim. With respect to the VA compensation examinations provided the Veteran in August 2008 and December 2009, 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). In this case, the Board finds that the August 2008 and December 2009 VA psychiatric examinations are adequate, as they were predicated on a review of the claims files and all pertinent evidence of record as well as on the examinations, and provide medical information needed to address the rating criteria relevant to this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). There remains no issue as to the substantial completeness of the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2010). Any duty imposed on VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F. 3d (Fed. Cir. 2007). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected PTSD is currently rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this code, a 30 percent rating is assigned 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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 warranted 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 granted 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. VA treatment records, dating from July 2008 to November 2008, show the Veteran complained primarily of intrusive memories, panic attacks, anxiety and social isolation. A July 2008 treatment record indicates that the Veteran was anxious that he would have another panic attack. There was no evidence of hallucinations or delusions, or of homicidal or suicidal ideation. He was casually dressed and appropriately groomed. His speech was regular in rate, rhythm and volume. His thought process was logical and goal directed. The Veteran's affect was restricted and his mood anxious. His insight was determined to be fair and his judgment was good. His GAF score was assessed as 60. A September 2008 treatment record notes that the Veteran reported having had 3 more panic attacks since July 2008. His GAF score was 55. In August 2008, the Veteran underwent VA psychological examination. At that time he complained of increased nightmares, intrusive thoughts of war, nightmares occurring a couple of times a week, low interest and no libido. He also reported that medication had helped a lot with his sleep and mood. He experienced less anger and higher energy, concentration and appetite with medications. The Veteran was married 37 years and had 4 adult children. He described having a good relationship with his wife and children and also did a lot socially with his family. While he reported having friends, he did not go out much due to limited finances. He and his wife volunteered for the Special Olympics. Examination results revealed the Veteran's eye contact and interaction to be within normal limits. There was no evidence of any impairment of thought process or communication. He denied any suicidal or homicidal thoughts and there was no evidence of delusions or hallucinations. He endorsed a good history of maintaining minimal personal hygiene and other basic activities of daily living. He was oriented to person, place and time. He denied obsessive or ritualistic behaviors. The rate and flow of his speech was within normal limits. He had a panic attack 2 months before the examination and had a recent increase in anxiety and worry about having another panic attack. He denied impaired impulse control and reported that he slept approximately 6 hours a night. The diagnosis was mild to moderate chronic PTSD. The assessed GAF score was 60. VA treatment records, dating from February 2009 to November 2009, show, in February 2009, the Veteran was anxious primarily about financial issues, but reported nightmares and flashbacks. He also reported sleeping approximately 3 hours at night and being more fearful of the dark. In November 2009, the Veteran reported experiencing poor sleep and delusions about his former therapist who was wounded in the Fort Hood shootings. At that time he reported passive suicidal thoughts, with no plan or attempts. He denied homicidal thoughts except those directed toward the Fort Hood shooter. His insight was limited and his judgment fair. The Veteran reported that he had an accurate premonition regarding his former therapist's injury. GAF scores during this period were generally 50 to 55, with the exception of the November 2009 treatment record indicating a GAF of 45. A December 2009 VA psychological examination report shows that the Veteran reported recurrent and intrusive recollections approximately 3 times a week, nightmares approximately 4 times a week and infrequent flashbacks occurring 3 times a year. He continued to have panic attacks approximately once a month and reported some difficulty with sleep, although it was possibly a problem with self regulation. He reported feeling detached and estranged from others, including his family and irritability on occasion. He denied depression, but reported difficulty with concentration, hypervigilance and an exaggerated startle response. He had markedly diminished interest and participation in significant leisure and social activities. Examination revealed the Veteran's eye contact to be within normal limits and appropriate to the interview. His personal hygiene was adequate and he appeared to take pride in his personal appearance. He was oriented to person, place and time. He denied any suicidal or homicidal ideation, plan or intent. There was no evidence of impairment of thought process or communication and the Veteran denied any hallucinations or delusions. There was no evidence of obsessive or ritualistic behaviors, or of impaired impulse control. The rate and flow of his speech was within normal limits and goal directed. The examiner diagnosed PTSD. The GAF was 55. The examiner opined that the Veteran's PTSD was of moderate to severe symptomatic distress with mild to moderate functional impairment primarily in the social arena and limited interest in activities. VA treatment records, dating from December 2009 to May 2010, show ongoing treatment for his PTSD. A December 2009 treatment record shows the Veteran was being treated for symptoms of intermittent psychosis. He and his wife reported continued experiences that were interpreted as premonitions. At that time he reported that his sleep had improved and that his nightmares had decreased. During this period he denied any further delusions. GAF scores during this entire period were assessed as 55. After considering the totality of the record, and resolving all reasonable doubt in the Veteran's favor, the Board finds the evidence to support a 50 percent disability rating and no higher for the Veteran's PTSD. Throughout the course of his appeal, the Veteran's PTSD has been manifested by sleep disturbance, nightmares, intrusive memories, hyper startle response, hypervigilance, anxiety, irritability, avoidance behavior, and some social isolation. Although he had a good relationship with his wife and children, he also reported feeling detached and estranged from them, as well as having a markedly diminished interest and participation in significant leisure and social activities. Moreover, he reported having frequent nightmares and intrusive memories and flashbacks occurring at least once a month. In November 2009 he experienced delusions that have since been controlled with medication. While there is no evidence to show flattened affect, circumlocutory or stereotyped speech, impaired abstract thinking or judgment, impaired memory, or difficulty understanding complex commands, some if not all of the criteria for the assignment of a 50 percent evaluation have been met. As such, and affording the Veteran the benefit of the doubt, the Board finds that the assignment of a 50 percent evaluation is warranted. In reaching this conclusion, the Board takes note of the various GAF scale scores. The veteran's GAF scores for the period, as noted in his August 2008 and December 2009 VA examination reports, and VA treatment records, ranged from 45 to 60, and these scores further support the assignment of a 50 percent evaluation. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). According to the Fourth Edition (DSM-IV) of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, GAF scores ranging between 41 and 50 are meant to indicate 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). GAF scores ranging between 51 and 60 indicate 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). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126 (2004); see also VAOPGCPREC 10-95 (Mar. 31, 1995) (cited at 60 Fed. Reg. 43,186 (Aug. 18, 1995)). Although several VA treatment records show the Veteran was assessed with GAF scores of 45 to 50, indicating serious symptoms, the majority of his GAF scores for this period range from the 55 to 60 denoting moderate symptoms or impairment in social, occupational or school functioning. Moreover, despite the GAF scores assigned denoting serious impairment, the recorded clinical findings noted in the VA treatment records and the examination reports contradict the GAF scores provided. In this respect, the Board notes that the mental status examinations revealed no major impairment or serious symptoms, with the exception of his delusions during November 2009. Again, resolving all reasonable doubt in the Veteran's favor, the Board finds that the assignment of a 50 percent evaluation for the pendency of his appeal is warranted. The Board finds, however, that the Veteran's PTSD symptoms do not warrant an evaluation in excess of 50 percent. As noted above, the overwhelming majority of the medical evidence shows that, while he does have chronic problems with intrusive memories, nightmares and irritability, he does not have symptoms manifested by impaired thought processes; suicidal ideation; obsessional rituals; illogical, irrelevant or obscure speech; near-continuous panic or depression that affects his ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. Moreover, none of the VA examiners indicated that there was any evidence of any inability to perform activities of daily living, including maintenance of minimal personal hygiene. Likewise, although the November 2009 VA treatment records noted the Veteran had delusions, he did not continue to have delusions after being medicated. Moreover, the August 2008 VA examiner determined that the Veteran's PTSD symptoms were no more than mildly to moderately severe. The December 2009 VA examiner, while indicating that the Veteran had moderate to severe symptomatic distress, determined that it led to mild to moderate functional impairment, primarily in the social arena. Both examiners noted that the Veteran did not work and received disability benefits from the Social Security Administration since the 1980s for a back disability. The December 2009 examiner opined that while the Veteran's PTSD symptoms might cause some problems with concentration and occasional problems with co-workers, he would for the most part do reasonably well. The evidence of record further shows that he has maintained a relationship with his wife of many years and his 4 adult children. In light of the foregoing, therefore, the preponderance of the evidence is against a finding that the Veteran's PTSD is productive of occupational and social impairment, with deficiencies in most areas, such as work, school, and family relations. As such, a 70 percent rating is not warranted. In sum, the overwhelming preponderance of the evidence of record shows that the Veteran's PTSD does not warrant more than a 50 percent rating at any time during the pendency of this appeal. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) and the Court's decision in Thun v. Peake, 22 Vet. App. 111 (2008). 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 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. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluation for the disability is inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected lumbosacral strain with degenerative joint and disc changes under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, supra. Lastly, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is raised by the record. In this case, the Veteran is unemployed but the evidence of record establishes that it is his back disabilities as opposed to his PTSD which contributed to his inability to maintain gainful employment. He has not indicated, and the record does not show, that his PTSD precludes him from obtaining substantial employment. As such, the issue of entitlement to a total disability rating based on TDIU has not been raised. ORDER Entitlement to 50 percent disability rating for service-connected PTSD is granted, subject to the rules and regulations governing the payment of VA monetary benefits. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs