Citation Nr: 1132425 Decision Date: 09/02/11 Archive Date: 09/12/11 DOCKET NO. 09-37 050 A ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut that granted service connection for posttraumatic stress disorder with an evaluation of 30 percent, effective from the date the claim was submitted on February 9, 2006. When this case most recently was before the Board in November 2006, it was remanded for additional evidentiary development. The case since has been returned to the Board for further appellate action. In connection with his appeal, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ) in April 2010. A transcript of the hearing is associated with the claims file. At the hearing, the Veteran submitted additional evidence along with a waiver of initial consideration of that evidence by the RO. The Board notes, however, that the additional evidence submitted was already in the record and had been reviewed by the agency of original jurisdiction at the time of the January 2010 supplemental statement of the case. FINDING OF FACT Posttraumatic stress disorder is manifested by occupational and social impairment with reduced reliability and productivity but is not manifested by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial evaluation of 50 percent, but not higher, for posttraumatic stress disorder have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. The current claim stems from the rating decision that awarded service connection for posttraumatic stress disorder, and the Veteran has appealed the evaluation assigned. This means that the notice requirements of 38 U.S.C.A. § 5103(a) have been met since the Veteran's claim for service connection was successfully granted. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim. The RO obtained, or made sufficient efforts to obtain, records corresponding to all treatment described by the Veteran. For example, VA obtained VA medical records from 2006. It obtained private medical records identified by the Veteran. It also obtained the Norwich Vet Center records. Additionally, the Veteran was afforded two VA examinations that were fully adequate for the purposes of ascertaining the symptoms and severity of the service-connected disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010). Posttraumatic stress disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides that a 50 percent disability rating is warranted for posttraumatic stress disorder when there is 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 effective work and social relationships. A 70 percent disability rating is warranted for posttraumatic stress disorder when there is 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 work-like setting); and inability to establish and maintain effective relationships. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), page 32). A GAF score of between 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A GAF of between 31 to 40 is defined as "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work, school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school.). A GAF score of between 41 and 50 (which falls into the range of 41-50) is defined as "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). Id. While the Rating Schedule indicates that the rating agency must be familiar with the Diagnostic and Statistical Manual of Mental Disorders, it does not assign disability percentages based solely on global assessment of functioning scores. See 38 C.F.R. § 4.130. Rather, global assessment of functioning scores are but one factor to be considered in conjunction with all the other evidence of record. 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. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2010). Additionally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2010). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2010) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected posttraumatic stress disorder. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. After having carefully reviewed the evidence of record, the Board finds that the evidence supports the award of an initial evaluation of 50 percent but that the preponderance of the evidence is against an initial evaluation in excess of 50 percent for posttraumatic stress disorder. The reasons follow. As to the award of the 50 percent evaluation, the Board finds the Veteran's symptoms are worse than what the 30 percent evaluation contemplate. For example, the Veteran does have panic attacks, as described by the Veteran. Examiners have found his judgment to be fair to poor and has described the Veteran as being depressed. The Veteran's wife has stated that the Veteran stays home to avoid others, which is evidence of difficulty in establishing and maintaining effective relationship. He has flashbacks, nightmares, difficulty sleeping, feelings of detachment, hypervigilance, and passive suicidal thoughts. The Board finds that the Veteran's symptoms more closely approximate the level of severity of those symptoms that fall under the 50 percent evaluation. Thus, a 50 percent evaluation for posttraumatic stress disorder is granted. However, the Board finds the Veteran's overall symptoms do not rise to the severity of what the 70 percent criteria contemplate. In this regard, the evidence shows that the Veteran's speech has been consistently logical and relevant throughout the appeal. For example, when the Veteran was seen in January 2006 by VA, he stated he wanted treatment to improve the quality of his life. This is evidence of a logical thought processes. The Veteran is able to articulate his symptoms, which is also evidence against a finding of illogical and irrelevant speech. The Veteran was able to attend the April 2010 hearing before the Board and provide relevant testimony. In the October 2006 and October 2009 VA examination reports, the examiner made a specific finding that the Veteran's thought processes were logical and organized with no evidence of a thought disorder. As to suicidal ideation, the Veteran has reported having passive suicidal thoughts. In February 2006, he reported having a history of suicidal thoughts until one year ago. During the appeal, he reported having passive thoughts, although he noted he had no plan and had no past suicidal attempt. While the Veteran meets this criteria to some extent, it does not establish a basis to award a 70 percent evaluation for posttraumatic stress disorder. There is no evidence of obsessional rituals or near-continuous panic/depression. There is no evidence of spatial disorientation, even by the Veteran's own statements. There is also no evidence of neglect of personal appearance. In the October 2009 VA examination report, the examiner noted the Veteran was adequately roomed. As to impaired impulse control, the Veteran has reported having past incidents where he assaulted individuals, but nothing has been reported during the appeal period. The Veteran has been married to his wife since 1998, and when he first sought treatment in 2006, he stated he wanted to improve the relationship he had with his wife. Such is evidence against a finding that the Veteran is unable to establish and maintain effective relationships. The Board is aware that the symptoms listed under the 70 percent evaluation are examples of the types and degree of symptoms that would warrant a 70 percent evaluation, and that the Veteran need not have these particular symptoms in order to warrant a 70 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the criteria described under the 70 percent evaluation indicate a more serious disability than the Veteran has demonstrated throughout the appeal period. The criteria for the 70 percent evaluation contemplate a person who is not necessarily in touch with reality, at least at times. Suicidal ideation, obsessional rituals, illogical speech, near continuous depression, impaired impulse control, spatial disorientation, neglect of personal appearance, difficulty in adapting to stressful circumstances, and inability to establish and maintain relationships are rather severe symptoms. In considering the Veteran's symptoms that do not involve those particular symptoms, they are not found to be severely disabling. In the October 2009 VA examination report, this was the second time the examiner had had an opportunity to evaluate the Veteran. It was his conclusion that the Veteran's posttraumatic stress disorder symptoms caused mild to "at most moderate" symptoms and impairment. Such statement made by a medical professional who specializes in psychiatric disorders is evidence against a finding that the disability warrants a 70 percent evaluation. The Veteran's GAF scores throughout the appeal have ranged from 25 (one time) to 50. This range contemplates a psychiatric disorder that ranges from seriously to severely disabling. The VA examiner who conducted the October 2006 and October 2009 VA examinations noted that the Veteran had been assigned a GAF score of 25 in January 2006, which he noted was low. Such score would indicate a person with hallucinations and delusions. Throughout the appeal, examiners have stated that the Veteran denied such symptoms and that they did not witness such symptoms. The assignment of a GAF score of 25 was entered following a quick description from the Veteran of his wanting help with his posttraumatic stress disorder symptoms. The Board accords more probative value to the clinical findings addressing the symptoms the Veteran demonstrates than a cursory assignment of a GAF score. An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The symptoms presented by the Veteran's posttraumatic stress disorder are fully contemplated by the rating schedule. There is no evidence his disability picture is exceptional when compared to other veterans with the same or similar disability. There is evidence throughout the appeal that the Veteran's posttraumatic stress disorder did not necessitate frequent hospitalization. It looks like the Veteran was hospitalized one time. The Veteran had stopped working in 2001 due to a physical disability and not posttraumatic stress disorder. Regardless, the 50 percent evaluation contemplates severe interference with employment. The Board finds the preponderance of the evidence is against a finding that a referral of this claim for extraschedular consideration is warranted. Thun, 22 Vet. App. 111. For the above reasons, entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder, is denied. To conclude, the Board has awarded a 50 percent evaluation for posttraumatic stress disorder, but found that the preponderance of the evidence is against an evaluation in excess of 50 percent. The Board finds that the 50 percent evaluation is warranted from the time entitlement to service connection for posttraumatic stress disorder was awarded, as the evidence does not show symptoms of different levels of severity during the appeal. Accordingly, the Board concludes that the Veteran is entitled to an evaluation of 50 percent for the period of the appeal. ORDER An initial evaluation of 50 percent for posttraumatic stress disorder is granted, subject to the regulations controlling the payment of monetary benefits. ____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs