Citation Nr: 1127916 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 06-04 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from April 2002 to March 2005. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2010 the Board remanded the case for further development. The requested development has been completed and the case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The Veteran's service-connected PTSD is manifested by complaints of sleep disturbance, intrusive recollections, nightmares, anxiety, depression, panic attacks, decreased motivation, memory problems, concentration problems, hypervigilance, hyperstartle response, avoidant behavior, and results in occupational and social impairment with reduced reliability and productivity; there is no evidence of suicidal ideation, thought disorder, obsessional rituals, intermittently illogical, obscure or irrelevant speech, near continuous panic attacks, impaired impulse control, disorientation, neglect of personal appearance and hygiene or inability to work or to maintain interpersonal relationships attributed to his PTSD. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD have not been met. 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 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for Department of Veterans Affairs (VA) benefits. The notice must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). 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. In such cases, where the appellant then files a notice of disagreement (NOD) with the initial rating and/or the effective date assigned, he/she has initiated the appellate process and different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in sections 7105(d) and 5103A of the statute. Id., see also Goodwin v. Peake, 22 Vet. App. 128 (2008); 38 U.S.C.A. § 5103(A), 7105(d). Prior to the initial adjudication of the Veteran's claim for service connection for PTSD in June 2005 in this case, the RO sent the Veteran a letter, dated in April 2005, which informed him of the evidence generally needed to support claims of entitlement to service connection; what actions he needed to undertake; and how the VA would assist him in developing his claim. In March 2006, the RO issued a VCAA notice to the Veteran which also informed him of the evidence needed for the assignment of evaluations and effective dates for initial awards of service connection. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In view of this, the Board finds that VA's duty to notify has been fully satisfied with respect to this claim. In August 2005, the Veteran submitted an NOD with the initial disability rating assigned his PTSD, triggering the notice obligations set forth in sections 7105(d) and 5103A of the statute. The RO then fulfilled these notice obligations by issuing a December 2005 statement of the case (SOC) and subsequent supplemental statements of the case. These documents informed the Veteran of the regulations pertinent to his appeal, including the applicable rating criteria, advised him of the evidence that had been reviewed in connection with his appeal, and provided him with reasons for its decision. 38 U.S.C.A. § 7105(d). Accordingly, the Board concludes that the notice obligations set forth in sections 7105(d) and 5103A of the statute have been fulfilled in this case. VA has secured or attempted to secure all relevant documentation to the extent possible. The Board notes that the Veteran's VA 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 May 2005 and May 2010, 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 May 2005 and May 2010 VA psychological examinations are adequate, as they were predicated on a review of the claims file 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's service-connected PTSD is currently rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this code, 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. In May 2005, the Veteran underwent a VA psychological examination. The examiner noted that the Veteran's claims file was reviewed. At that time he complained of feeling nervous at his job. The Veteran worked at a bar and reported feeling anxious and jittery when the bar was crowded. He also complained of sleep problems, nightmares approximately once a week, distressing memories approximately 3 to 4 times a week, and decreased interest in people and activities. The Veteran reported having had 3 panic attacks in the previous week. He also reported decreased motivation, memory problems, depression, and increased appetite. He reported that he sometimes felt slightly disoriented or like things were not real. He was single but reported having approximately 10 friends at the time and that he enjoyed social relationships on occasion. Although he had no contact with his father and stepmother as a result of an abusive relationship in the past, he did maintain contact with his grandparents on occasion. He avoided talking about the war or thinking about his service. He also avoided crowded places. He found it difficult to concentrate and had lost "enjoyment on a daily basis" but still engaged in activities. He reported that he felt restless on a daily basis and also reported hypervigilance and an exaggerated startle response to loud noises. He reported having feelings of worthlessness, but denied suicidal thoughts or attempts. He also denied having hallucinations or compulsive behavior. Examination results revealed the Veteran to be neatly and appropriately dressed. The quality and speed of his speech were normal. His speech was further coherent, rational and relevant to questions asked. His mood was assessed as normal while his affect was anxious and depressed. There were no peculiar mannerisms or behaviors and no evidence of psychosis or intellectual deficits. However the results of psychological testing could not be considered valid. The diagnosis was PTSD with secondary depression secondary to military service and abuse as a child. The assessed GAF score was 50. The examiner opined that the Veteran was not unemployable due to his mental health symptoms. It was further opined that the Veteran was likely to experience at least a moderate reduction in his effectiveness, productivity and endurance and that he had had at least a moderate reduction in his quality of life due his depression and PTSD. VA treatment records, dating from April 2005 to December 2009, show the Veteran consistently complained of problems with sleep, concentration and memory. He also complained of anxiety, depression, panic attacks, racing thoughts, irritability, low energy and libido, and of feelings of guilt. He intermittently complained of nightmares, intrusive thoughts, occasional flashbacks and difficulty being around others. Mental status examinations consistently revealed the Veteran to be neatly dressed and groomed. His mood was frequently described as being depressed and anxious. His affect was described as constricted to flat. Panic systems were often observed. His speech was consistently normal in rate, logical and goal directed. During this period he denied suicidal or homicidal ideation and there was no evidence of psychosis. His memory and cognition were grossly intact and his insight and judgment were repeatedly described as either intact or good. GAF scores during this entire period ranged from 50 to 55. A July 2009 treatment record, however, indicates a GAF of 60. An October 2009 treatment record notes a recent increase in depression. A May 2010 VA psychological examination report indicates that the Veteran's claims file and VA treatment records were reviewed in conjunction with his examination. At that time he reported he had been hospitalized for 1 1/2 days for treatment of high blood pressure he was told was related to his high stress level. After his discharge, his antidepressant medication was increased. It was noted that the Veteran had missed many therapy sessions because he found it difficult to leave his home, and that his symptoms were not optimally managed with the increased medicine dosage. He was given new medication in December 2009. He complained of recurrent panic attacks and feeling depressed. He indicates that his PTSD symptoms were always present and intensified between February and March near the anniversary date of his trauma in service. His anxiety and avoidance had interfered with his ability to participate consistently enough with the therapeutic process to produce remediation or symptom management. He had recently decided to quit college after withdrawing from classes several times due to PTSD symptoms. He reported that he had quit or been fired from at least 2 jobs since 2005. He had a panic attack while on one job and he quit another job without having secured another job and was unemployed for 5 months as a result. At the time of the examination he was working fulltime as an aircraft mechanic at an Air force base. He felt that his problems with attention, concentration and memory negatively impacted his work efficiency as he often had to take breaks to calm down and had to pay to replace tools he misplaced. He estimated that he had lost 2 days of work due to his PTSD symptoms since he started in January 2010. He reported that he had friends that came to visit him at his home approximately once a month. He described his wife as supportive, but indicated that the marriage was strained by his unwillingness to go places outside the home and his inability to communicate when angry. He reported having recurrent intrusive memories, nightmares, flashbacks, avoidant behavior, loss of interest in previously enjoyed activities, feeling distant or detached from others, restricted emotional range, a sense of foreshortened future, irritability, difficulty concentrating, hypervigilance, exaggerated startle response, survivor's guilt. The Veteran reported that he sometimes experienced panic attacks as often as every other day and at other times could go several months without having one. The examiner observed that the Veteran's eye contact was minimal, but that there was no evidence of inappropriate behavior. He reported short-term memory problems consistent with memory interference caused by anxiety, depression and insomnia. He denied obsessive or ritualistic behavior. He was fully oriented. His speech was normal in rate and flow, with relevant and logical content. There was no gross impairment in thought processes or communication. He was not suicidal or homicidal. He denied any delusional thought content and none was elicited during the interview. He reported occasional visual hallucinations primarily from the corner of the eye effect and were trauma consistent versus indicative of a primary psychotic process. He was able to maintain minimal personal hygiene although his wife had to encourage him to go to get a haircut and shave. He reported good impulse control. The diagnosis was PTSD with secondary depressive symptoms with a GAF of 50. The examiner opined that the Veteran's current psychosocial functioning was significantly negatively impacted by his PTSD symptoms as he had unsuccessfully attempted to attend college, had quit 2 previous jobs and been unemployed for 5 months and was socially isolated. The examiner opined that there were serious impairments in social, school, work and marital functioning as a result of the Veteran's PTSD and secondary depressive symptoms. The examiner further opined that the Veteran's PTSD signs and symptoms resulted in deficiencies in work, school, family relations, judgment, thinking, and mood and that his symptoms required continuous medication. After reviewing all of the evidence of record, the Board finds that the overall disability picture does not more closely approximate the criteria for a 70 percent rating under Code 9411. 38 C.F.R. § 4.7. Specifically, the medical evidence is negative for suicidal ideation, obsessional rituals, intermittently illogical, obscure or irrelevant speech; near continuous panic attacks or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene; or inability to establish and maintain effective relationships attributed to the Veteran's PTSD. Although he reports problems with panic attacks, anxiety, depression, intrusive thoughts, insomnia, nightmares, and social isolation, and the objective evidence indicates some evidence of short-term memory interference, intermittently frequent panic attacks, sleep disturbance as well as some social isolation, the objective evidence does not support the conclusion that it significantly impacts his ability to work. In this respect, the Board notes that both the May 2005 and May 2010 VA examination reports noted the Veteran had a job at the time of the examinations. At the time of the May 2010 examination, he was actually working in a fulltime position. There is no evidence of record indicating that the Veteran's PTSD symptoms rendered him unemployable during the pendency of his appeal. Moreover, the evidence indicates that the Veteran has not had any hospitalizations for PTSD. Despite, the May 2010 examiner's opinion that the Veteran's psychosocial functioning was "significantly negatively impacted by PTSD symptoms" there is no objective evidence that his PTSD symptoms have significantly reduced his reliability or productivity. In this respect, the May 2005 VA examiner, while assessing a GAF of 50, opined that he was not unemployable as a result of his PTSD and was likely to experience at least a moderate reduction in his effectiveness, productivity and endurance. The Board again notes that the Veteran was maintaining fulltime employment at the time of the May 2010 examination and had reportedly lost one previous job because he took extended leave to be with his dying grandparent, not as a result of PTSD symptoms. Moreover, the VA examination reports, as well as his VA treatment records indicate that the Veteran reported having friends that he regularly socialized with and he was married to a supportive wife at the time of the May 2010 examination. The Board finds that the overwhelming objective findings reported on mental status examinations in May 2005 and May 2010, including coherent thought process and speech with no evidence of suicidal ideation, delusions, near-continuous panic or depression, neglect of personal appearance and hygiene or inability to establish or maintain effective relationships do not support the conclusion that the disability is of the severity contemplated for a 70 percent evaluation under Code 9411. In reaching this conclusion, the Board takes note of the various GAF scale scores. As noted above, the vast majority of GAF scores for this period were between 50 to 55. 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 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). 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). Taking into consideration the Veteran's GAF scores associated with diagnosed PTSD and the impairment from the signs and symptoms of PTSD as described in the clinical records, the Board finds that the Veteran's occupational and social impairment due to PTSD represents no more than a 50 percent disability rating. In this regard, again the Board acknowledges that, the Veteran has consistently been assigned GAF scores indicative of serious symptoms. However, despite the Veteran's noted complaints, as outlined in detail above, there is no indication of other commensurate symptoms such as severe obsessional rituals, suicidal ideation, intermittently illogical, obscure or irrelevant speech, impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene attributed to his PTSD, as contemplated in the criteria for a 70 percent disability rating. Moreover, while there is evidence of some social isolation from his family, the Veteran has maintained social relationships with several friends and his wife. In light of the foregoing, the Board concludes that the evidence as a whole demonstrates the Veteran's PTSD produces no more than some occupational and social impairment with reduced reliability and productivity due to various symptoms. The preponderance of the evidence is against a rating in excess of 50 percent for PTSD. Thus, the benefit-of-the-doubt rule does not apply, and the claim for a higher rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 PTSD 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 has been employed for the vast majority of the appellate period and is currently employed fulltime. 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 an initial disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs