Citation Nr: 1127929 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 07-10 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating higher than 10 percent prior to February 8, 2007; higher than 30 percent from February 8, 2007, until June 16, 2010; and higher than 70 percent since June 16, 2010 for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1970. He was awarded the Army Commendation Medal, the Purple Heart Medal, and the Combat Infantryman Badge for his heroic service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for PTSD and assigned an initial 10 percent rating from the date he filed his claim on September 20, 2005. The Veteran appealed that decision by requesting a higher initial rating. The RO has since assigned staged ratings for this disability. In a September 2007 rating decision, the RO increased his rating from 10 to 30 percent, but only effective from February 8, 2007, which is the date a VA treatment record showed a worsening of symptoms. The Board then remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, so that the Veteran could be afforded a VA psychiatric examination. That examination was conducted on June 16, 2010. As a result of that examination, the RO issued a May 2011 rating decision in which it granted a 70 percent rating, effective June 16, 2010. As a result of these staged ratings, the Board must adjudicate whether the Veteran is entitled to an initial rating higher than 10 percent for the period prior to February 8, 2007; a rating higher than 30 percent from February 8 2007, until June 16, 2010; and a rating higher than 70 percent since June 16, 2010, for PTSD. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). FINDINGS OF FACT 1. Prior to June 16, 2010, the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as depression, anxiety irritability, and social isolation. 2. At no time since the initial grant of service connection has the Veteran's PTSD caused total occupational and social impairment. CONCLUSION OF LAW The Veteran's PTSD meets the criteria for an initial 50 percent rating for the entire period prior to June 16, 2010, but does not meet the criteria for a rating higher than 70 percent since June 16, 2010. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1-4.14, 4.126-4.132, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist Before addressing the underlying merits of a claim, the Board is usually required to ensure that VA's duties to notify and assist a claimant have been satisfied. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These notice requirements apply to all elements of a service-connection claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). A November 2005 letters meeting these requirements was provided to the Veteran prior to the initial grant of service connection for PTSD. And since the appeal now concerns his downstream claim for a higher initial rating for this disability, VA is not obligated to provide additional notice concerning this downstream issue. Instead, the provisions of 38 U.S.C.A. § 7105(d) require VA to provide a statement of the case (SOC) if this disagreement is not resolved. The RO issued an SOC in March 2007 addressing this downstream issue, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher initial rating for his PTSD. As such, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all records the Veteran and his representative identified as potentially relevant The Veteran was also afforded VA compensation examinations to determine the severity of his PTSD in December 2005 and June 2010. The findings from those examinations provide the information needed to rate this disability. See 38 C.F.R. §§ 3.327, 4.2. See also Caffrey v. Brown, 6 Vet. App. 377 (1994). This is particularly the case with the most recent VA examination in June 2010, which substantially complies with the Board's May 2010 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board concludes that VA has satisfied its duties to notify and to assist the Veteran in this case. Therefore no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). II. Merits of the Claim The Veteran developed PTSD as a result of his combat experiences, including a gunshot wound to the right shoulder, while serving in Vietnam. On September 20, 2005, he filed a claim for service connection for PTSD, which the RO granted in a January 2006 rating decision. The RO has assigned the following staged rating for this disability: (i) a 10 percent rating from September 20, 2005, to February 8, 2007; (ii) a 30 percent rating from February 8, 2007, until June 16, 2010; and (iii) a 70 percent rating since June 16, 2010. The Board must now adjudicate the ratings for each of these periods. Since his claim arises from his disagreement with the initial rating assigned following the grant of service connection, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staging", with equal consideration for the entire body of evidence. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (holding that, when a Veteran timely appeals an initial rating, VA must consider whether the rating should be "staged" to compensate the Veteran for times since the effective date of the award when the disability may have been more severe than at other times during the course of the appeal). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. See 38 C.F.R. § 4.3. PTSD is rated under the General Rating Formula for Mental Disorders. Under this General Rating Formula, a 10 percent rating is assigned where there is occupational and social impairment due to mild or transient symptoms that decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or where symptoms are controlled by continuous medication. See 38 C.F.R. § 4.130, DC 9411. A higher 30 percent rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss. Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; 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 rating is warranted where the disorder is manifested by 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 work-like setting); and an inability to establish and maintain effective relationships. Id. The highest possible rating of 100 percent rating requires 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 of names of close relatives, own occupation or own name. Id. A. Prior to June16, 2010 During the period from the initial grant of service connection until June 16, 2010, the Veteran's PTSD was assigned two staged ratings: 10 percent prior to February 8, 2007, and then 30 percent since February 8, 2007. The Board now finds that the Veteran's PTSD meets the criteria for an initial 50 percent rating for the entire period prior to June 16, 2010. In reaching this decision, however, the Board finds no basis to grant a disability rating higher than 50 percent at any time prior to June 16, 2010. The evidence during this period includes a December 2005 VA examination report as well as various VA outpatient treatment records. Overall, these records show that the Veteran has been able to maintain full-time employment as an automobile mechanic and has been married during this entire period, although he has had strained relationships with his coworkers, his boss, and his wife due to such symptoms are irritability, anger, depression, and sleep impairment. In essence, the evidence reflects occupational and social impairment with reduced reliability and productivity due to disturbances of motivation and mood, as well as difficulty in establishing and maintaining effective work and social relationships, for which a 50 percent rating is warranted under General Rating Formula for Mental Disorders. During his December 2005 VA psychiatric examination, the Veteran reported that he had been married to his wife since 1968 and that they had no children. He reported that his symptoms included irritability, anger outbursts, decreased concentration, difficulty sleeping, nightmares once or twice a week, hypervigilance, and social isolation. With respect to irritability and anger outbursts, he reported having "spats' with his wife about twice a week and yelling at work about three times a month. He said that his boss tolerated him at work because he had been there since 1977. He reported a history of assaulting his wife after returning home from Vietnam, but denied any such conduct during the past 10 years. But he characterized his marriage as "chronically strained." He reported no social life except for occasional reunions with other Veterans, although he admitted that he had had a limited social life prior to service. He described his concentration as "pretty good," but added that he had been making more mistakes at work during the past month due to a lack of concentration. On mental status examination, the examiner observed that the Veteran was anxious in that his legs and hands shook. His affect was constricted, his mood was dysphoric, and he described moderate sleep impairment which had been causing irritability at work and problems with his wife. The Veteran reported occasional suicidal and homicidal ideation, but was noted to have good impulse control. He also denied panic attacks. Psychometric testing revealed severe PTSD and marked distress, which the examiner explained is typically associated with severe impairment in functioning, but is inconsistent with the Veteran's reported symptoms and his ability to function at work. The examiner therefore characterized the Veteran's PTSD symptoms as moderate rather than severe. The examiner diagnosed the Veteran with PTSD and assigned a global assessment of functioning (GAF) score of 54. The examiner explained that he did not assign a separate diagnosis of depression, because the Veteran's depressive symptoms of low mood, tearfulness, feelings of hopelessness, and suicidal ideation are all part of his overall condition of PTSD. The examiner reiterated that the Veteran's PTSD symptoms include irritability leading to frequent arguing with his wife and low stress tolerance at work. The Veteran also experiences nightmares and occasional intrusive and distressing memories of Vietnam leading to lapses in concentration and mistakes at work. There was also little emotional intimacy with his wife. The Veteran began receiving VA outpatient treatment for his PTSD in 2006, with both individual and group therapy. During his initial intake evaluation in July 2006, he reported PTSD symptoms involving anxiety, nightmares, and intolerance of crowds had recently worsened. His symptoms also included depression, sleep impairment, irritability, and decreased concentration. Unlike his VA examination, however, he denied both suicidal and homicidal ideation. A mental status examination revealed that his mood was nervous and that his affect was constricted and hypervigilant. Otherwise, no significant findings were shown. The diagnosis was PTSD, chronic, and a GAF score of 51-60 was assigned. His treatment plan included medication and psychotherapy. A December 2006 treatment record notes that the Veteran was noncompliant with his sleep mediation because it made him feel "groggy" in the morning. But he reported a slight improvement in his ability to control his anger. He said he felt angry in morning but happy in the afternoon. He again denied both suicidal and homicidal ideation. He said he looked forward to attending group therapy. A mental status examination revealed no significant findings. The diagnoses were (1) PTSD, chronic, combat-related, and (2) major depressive disorder, mild to moderate. A GAF score of 55 was assigned. VA treatment records dated from 2007 until June 2010 reveal similar findings, with GAF scores ranging from 51 to 60 and continued diagnoses of PTSD and major depressive disorder. When seen on February 8, 2007, the Veteran reported an overall improvement in his mood. He explained that February was often a difficult month for him, because it was in February when he had received a gunshot wound to shoulder in Vietnam, but that he was managing well this February. Nevertheless, while these records show that he had remained married and continued to work full time, he still felt socially isolated due to depression, irritability, anger, and difficulty managing stress. When seen in April 2007, for example, he reported difficulty getting along with his supervisor and coworkers because he would get easily frustrated and angry at the slightest incident. A mental status examination also revealed that he was depressed and tearful. A lower GAF score of 52 was therefore assigned. When seen in May 2007, the Veteran reported that he was married only on paper, with very little communication and intimacy between him and his wife. He indicated that he would often wakeup depressed and had difficulty with his boss. An April 2010 report notes his complaints of sleep disturbance due to intense shoulder pain, thereby making him more irritable during the day. He disclosed that he had been snapping more often at his wife and at customers during the day. He denied crying spells, feelings of hopelessness, and suicidal ideation, but admitted that he was often difficult to be around. He indicated that would frequently "run off" customers at work, although his boss still allowed him to work at the front desk and deal with customers. A GAF score of 54 was assigned. Based on the foregoing, the Board finds that the evidence supports a 50 percent rating for the Veteran's PTSD for the period prior to June 16, 2010. Before proceeding any further, the Board notes that the Veteran has been diagnosed with depression in addition to his service-connected PTSD. However, the December 2005 VA examination report includes a medical opinion that the Veteran's depression is related to his PTSD. The Board must therefore attribute all signs and symptoms to his service-connected PTSD, including any depression and depressive symptoms. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the Veteran's favor, dictates that such signs and symptoms be attributed to the service-connected condition). That being said, the record shows that, prior to June 16, 2010, the Veteran's PTSD has resulted in occupational and social impairment with reduced reliability and productivity due to symptoms such as a flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In this regard, various treatment records note that the Veteran displayed an occasional flattened or blunted affect, and that he was either anxious or depressed. His difficulty in establishing and maintaining effective work and social relationships is also shown by his repeated reports of difficulty getting along with coworkers, his boss, and his wife due to his irritability and tendency to withdraw. The Board concludes that these symptoms have resulted in occupational and social impairment with reduced reliability and productivity. In short, the overall findings demonstrate that the Veteran's PTSD meets the criteria for a 50 percent rating since the initial grant of service connection until June 16, 2010. The Board is aware that the Veteran does not have all of the symptoms listed in the criteria for a 50 percent rating - namely, circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; and impaired abstract thinking. See 38 C.F.R. § 4.130. But the Veteran is not required to prove the presence of all, most, or even some, of the enumerated symptoms recited under the rating criteria. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the fact that the Veteran does not have all of the symptoms listed in the criteria for a 50 percent rating does not preclude the assignment of this higher rating. In assigning an initial 50 percent rating for PTSD, the Board also finds that the preponderance of the evidence is against a rating higher than 50 percent for the entire period prior to June 16, 2010. The Board emphasizes that none of the clinical records makes any reference to 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; spatial disorientation; neglect of personal appearance and hygiene; and an inability to establish and maintain effective relationships. Although the Board acknowledges that the absence of such symptoms is not dispositive, Mauerhan, supra, it nevertheless provides evidence against the assignment of a 70 percent rating. The Board notes that the Veteran did report occasional suicidal ideation on one occasion in December 2005, and that the evidence suggests he has difficulty in adapting to stressful circumstances, both of which are listed in the criteria for a 70 percent rating. Nevertheless, the December 2005 VA examination was the only time that he had reported suicidal ideation, as he consistently denied this on numerous occasions during VA treatment from 2006 to 2010. And while he may have difficulty adapting to stressful circumstances, the evidence still shows that has been married and working full time for many years. Indeed, the April 2010 report notes that his boss still allowed him to work at the front desk and deal with customers, even though he had had problems with his irritability and anger. Additionally, the evidence does not show that the Veteran has an inability to establish and maintain effective relationships. One of the Veteran's complaints has been social withdrawal and isolation, and the VA examiner recorded the Veteran's statement that he had no friends and remains socially isolated. He also reported a strained relationship with his wife. However, the fact remains that the Veteran has been able to remain married to his wife of many years and has had the same job since 1977. Under these circumstances, the Veteran does not appear to be unable to establish and maintain effective relationships as a result of his PTSD, but, rather, has difficulty in doing so, which would support the 50 percent rating but not the higher 70 percent rating. The GAF scores ranging from 51 to 60 also indicate that the Veteran's psychiatric symptoms are most consistent with a 50 percent rating but does not warrant a higher 70 percent rating. A GAF score is potentially relevant to any increased rating claim since it is a scaled rating 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. (DSM-IV) at 32). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). According to the DSM-IV, GAF scores between 51 and 60 reflect "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Indeed, the VA examiner in December 2005 also characterized the Veteran's PTSD as moderate in degree, which is inconsistent with a 70 percent rating. In conclusion, the Board finds that the evidence supports an increased rating of 50 percent for PTSD for the entire period since the initial grant of service connection until June 16, 2010. However, there is no basis for assigning an initial rating higher than 50 percent at any time since the initial grant of service connection until June 16, 2010, at which time the RO granted an increased rating of 70 percent. B. Since June 16, 2010 The RO rated the Veteran's PTSD as 70 percent disabling from June 16, 2010, which is the date a VA examination report showed a worsening of symptoms. The Board, however, finds no basis for granting a disability rating higher than 70 percent at any time since June 16, 2010. This is because there is no evidence that his PTSD has resulted in total occupational and social impairment, as required for a 100 percent rating. The June 2010 VA examination report, which was the basis for granting an increase rating of 70 percent, does not show that his PTSD causes total occupational and social impairment. This report notes the Veteran's complaint of almost daily suicidal ideation, as well as moderate to severe symptoms of PTSD. The Veteran indicated that he was still married to his wife, but commented that "we don't associate together." His only social contact involved talking to his two brothers and one sister on the phone every month. He described his relationship with his wife as estranged. He indicated that they would usually vacation in the mountains once a year, but that they could not stand each other after only three days. He reported that he still worked full time for the same company and had missed about four weeks of work during the last year due to various medical appointments, as well as anger and depression. He indicated that he was no longer allowed to deal with customers at work and that his boss had threatened to fire him after he upset a customer. A mental status examination revealed that he was tense (constantly wringing his hands), that his affect was constricted, and that his mood was anxious, depressed, and fearful. He also reported suicidal ideation, ruminating thoughts, and paranoid ideation. His thought process was rambling, circumstantial, and tangential. He reported hallucinations - including auditory, visual and olfactory - which the examiner characterized as flashbacks. His memory and impulse control were described as good. The diagnosis was PTSD, with moderate to serious symptoms. The examiner indicated that the Veteran's GAF score was between 50 and 55. The examiner indicated "no" when asked if the Veteran's PTSD causes total occupational and social impairment. However, he cautioned that the Veteran would be at risk for suicide if, for some reason, he was no longer employed or if he outlived his wife. In addition to this VA examination report, the evidence also includes VA outpatient treatment records dated in 2010 and 2011. But these records also do not reflect total occupational or social impairment due to PTSD. In fact, an April 2011 report shows a slight improvement of symptoms, as the Veteran denied suicidal ideation and hallucinations, both of which were present during the June 2010 examination. A GAF score of 55 was also assigned. Based on the foregoing, the Board finds no basis to grant a 100 percent rating for the Veteran's PTSD since June 16, 2010, as there is no evidence that his PTSD has resulted on total occupational and social impairment. A finding of total occupational impairment is precluded because he has remained employed at the same full-time job and has remained with his wife of over 40 years. The Board acknowledges the Veteran's many problems at work and in his marriage due to PTSD symptoms such as anger and irritability. For example, he is no longer allowed to deal with customers at work, and he described being essentially estranged from his wife. Nevertheless, he is still employed and still married, thereby precluding a finding of total occupational and social impairment. The June 2010 VA examination report also includes a medical opinion that the Veteran's PTSD does not cause occupational and social impairment. This opinion - based on a review of the claims file, an interview with the Veteran, and a mental status examination - provides compelling evidence against assigning a 100 percent rating since June 16, 2010. The GAF scores between 50 and 55 also do not reflect total occupational and social impairment. Under these circumstances, the Board finds no basis to assign a disability rating higher than 70 percent for the Veteran's PTSD since June 16, 2010, because there is no evidence that his PTSD has caused total occupational and social impairment at any time during this period. C. Conclusion. For these reasons and bases, the Board finds that the evidence supports an increased rating of 50 percent for PTSD from the initial grant of service connection until June 16, 2010. The appeal is granted to this extent only, however, as the preponderance of the evidence is against a rating higher than 70 percent since June 16, 2010. As the preponderance of the evidence is against this aspect of his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. There is no indication that the Veteran's PTSD is so exceptional or unusual as to render impractical the application of the regular rating schedule standards, which would warrant the assignment of a higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2010). The symptoms of his disability are contemplated by the schedular rating criteria. And there is no evidence of hospitalization, much less on a frequent basis, or marked interference with his employment, meaning above and beyond that contemplated by his schedular ratings. Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, as they do in this case, then the assigned schedular rating is not inadequate and no referral is required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER An initial 50 percent rating for PTSD is granted prior to June 16, 2010, subject to the laws and regulations governing the payment of VA compensation. An initial rating higher than 70 percent for PTSD is denied since June 16, 2010. ____________________________________________ J. A. MARKEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs