Citation Nr: 1132822	
Decision Date: 09/06/11    Archive Date: 09/12/11

DOCKET NO.  07-11 386	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina




THE ISSUE

Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period from May 2, 2006.  




ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel



INTRODUCTION

The Veteran served on active duty from March 1967 to March 1969.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

In an October 2008 Board decision, it was determined that the criteria for an initial 50 percent rating were met for PTSD for the period from February 5, 2004, to May 2, 2006.  The issue currently on appeal was remanded for additional VA examination in October 2008 and again in October 2010.  Additional pertinent private treatment records dated from 2007 through 2011 were added to the file, as was the report of VA examination in March 2011.  The claim has now been returned to the Board for further appellate review.  


FINDING OF FACT

Throughout the rating period on appeal (from May 2, 2006), the Veteran's PTSD has been productive of occupational and social impairment, reduced productivity, disturbances of motivation, and difficulty maintaining effective social and work relationships, but without a showing of deficiencies in most areas; there is no showing of suicidal/homicidal ideation, communication deficits, disorientation, impulsive/inappropriate behavior, or neglect of personal appearance.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 50 percent for PTSD have not been met from May 2, 2006.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp 2009); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.130, Diagnostic Code (DC) 9411 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a Claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify Claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2010).

The notice required by the VCAA can be divided into four elements.  Specifically, VA must inform the Claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the Claimant is to provide; (3) that VA will attempt to obtain; and (4) request that the Claimant provide any evidence in his or her possession that pertains to the claim.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication.  To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the Claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).

In February 2004, prior to the initial adjudication of the Veteran's claim for service connection, he was notified of the evidence not of record that was necessary to substantiate his claim.  He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain.

As to the issue of a higher initial disability rating for the now service-connected PTSD, an increased rating is a "downstream" issue.  Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated.  Sutton v. Nicholson, 20 Vet. App. 419 (2006) (citing Dingess).

With respect to the Dingess requirements, however, it is noted that the Veteran was provided with notice of this information in a June 2009 VCAA letter.  As such, there is no prejudice to the Veteran with respect to any notice deficiencies related to the rating or effective date.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton, supra; see also 38 C.F.R. § 20.1102 (2009) (harmless error).

Next, the VCAA requires that VA make reasonable efforts to assist the Claimant in obtaining evidence necessary to substantiate a claim.  The Veteran's relevant service, VA, and private medical treatment records have been obtained.  He has also been afforded a VA examination.  There is no indication of any additional, relevant records that the RO failed to obtain.

In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA.

Increased Ratings - In General

A claim placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed) but not yet ultimately resolved, as is the case herein, remains an "original claim" and is not a new claim for increase.  Fenderson v. West, 12 Vet. App. 119 (1999).  In such cases, separate compensable evaluations may be assigned for separate periods of time, but only if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known to the US Court of Appeals for Veterans Claims as "staged" ratings.  Id. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. Part 4 (2010).  Separate rating codes identify the various disabilities.  38 C.F.R. Part 4.

In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records.  38 C.F.R. §§ 4.2, 4.41 (2010).  The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  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.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2010).  

An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities.   38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995).  

Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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 (West 2002 & Supp. 2009); 38 C.F.R. § 4.3 (2010).


DC 9411 provides:

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.-100 percent

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 that 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.-70 percent

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. - 50 percent

The Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C.A. § 501; 38 C.F.R. § 4.130.  By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over- inclusive.  The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the Claimant's social and work situation.  This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997).

The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC.  Instead, the rating specialist is to consider all symptoms of a Claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994), (DSM-IV).  See 38 C.F.R. § 4.126 (2010).  If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436 (1992).

In evaluating the Veteran's level of disability, the Board has also considered the Veteran's Global Assessment of Functioning (GAF) scores as one component of his overall disability picture.  GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  The scale may be relevant in evaluating mental disability.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV.

In recent years, the Veteran has been assigned GAF scores between 35 and 52.

GAF scores of 40 to 31 indicate 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 or 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).  Id.

GAF scores ranging from 41 to 50 reflect 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.  

Finally, a GAF score between 60 and 51 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Id.  

Background

Private treatment records dated from 2006 through 2011 reflect that the Veteran continues to be seen for PTSD and associated symptoms.  These records primarily reflect that the Veteran has occasional nightmares, panic attacks, and intrusive thoughts.  He also has some sleep disturbance.  GAF scores of 35 and 40 were noted in 2008 and 2009, respectively.  In March 2011, the Veteran was noted to have 5 hours of sleep per night, 1 nightmare per week, and panic attacks 1-2 times per week.  He continued to be employed.  

When examined by VA in March 2011, the examiner noted that the claims folder was reviewed.  The Veteran denied hospitalization for his psychiatric disorder.  The Veteran reported that he had friends but did not socialized very much.  He was on multiple psychiatric medications.  He reported nightmares about war and often woke up with night sweats (about twice per week).  He worked as courier.  The examiner described as capable to manage his financial affairs.  

Upon exam, the Veteran's affect was appropriate, but his mood was sad.  He was oriented times three.  His thought process was normal, and his thought content was logical and coherent.  He denied delusions.  In regard to hallucinations, the Veteran stated that he saw human images coming up behind him.  He said that he had "thoughts only" about homicide or suicide.  There were no problems with activities of daily living.  There was some memory impairment.  The examiner opined that there was significant social and occupational impairment, but the Veteran was able to function well as a result of being able to work alone in his current job.  His PTSD was described as moderate, and he was assigned a GAF score of 52.  

Analysis

After a careful review of the record, the Board finds that the currently assigned 50 percent evaluation for PTSD appropriately reflects the level of severity of his disability picture for the period from May 2, 2006, and that a higher rating is not warranted.

Again, the current 50 percent evaluation contemplates 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.  38 C.F.R. § 4.130, DC 9411 (2010).

In order to be entitled to a higher evaluation, 70 percent, the record must show 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.  Id.

It is understood that these exact manifestations need not be shown, but that they are guidelines in determining evaluations.  In this case, the Veteran has been shown to be self-sufficient.  As for suicidal or homicidal ideation, he has only "thought about it."  Moreover, his speech is consistently spontaneous, logical and relevant, and he has not neglected his personal hygiene.  Additionally, there has been no demonstration of gross impairment in thought processes, grossly inappropriate behavior, disorientation, or significant memory loss resulting in total occupational or social impairment such as to justify an assignment of a 100 percent rating.  Private records from December 2010 and March 2011 reflect that the Veteran continues to be employed.  

Statements submitted by the Veteran generally assert that he is entitled to a higher rating based upon his social and occupational impairment.  He points to a private 2004 medical record which describes him as being severely compromised in his ability to sustain social and work relationships.  He was considered by the examiner to be permanently and totally disabled and unemployable.  The Board notes, however, that this record is not pertinent to the current claim which concerns whether a rating in excess of 50 percent is warranted for PTSD from the period May 2, 2006, forward.  While it is true that the Veteran has experienced social and occupational impairments in these areas due to panic attacks, nightmares, and sleep impairment, the Board finds that the Veteran's level of impairment is adequately contemplated by the currently assigned 50 percent evaluation.  Furthermore, although the record shows a history of panic attacks, there is no evidence of resulting violence or impulse control and the Veteran has been shown to be capable of functioning independently, appropriately and effectively, if at a reduced level of occupational efficiency.

In reaching this determination, the Board has considered the Veteran's level of disability as reflected by GAF scores assessed throughout the record.  These scores have ranged from 35 (2008) to 40 (2009) and 52 (2010).  With regard to the scores of 35 and 40, assessed by a private doctor or doctors, the Board finds such assessments to be inconsistent with the record.  Specifically, such GAF scores would tend to indicate either impairment in reality testing or communication, or major impairment in several areas, such as work, family relations, judgment, thinking, or mood.  Impairments in reality testing, communication, judgment and thinking are not supported by the record.  While there is some impairment in work and family relations and mood, these do not, on their own, warrant a 70 percent rating.  His primary psychiatric symptoms over recent years have been occasional attacks, intrusive thoughts, and nightmares.  The remaining GAF score of 52 is consistent with the record and indicate the moderate symptomatology contemplated by a 50 percent rating under DC 9411.

Finally, it is noted that the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Thus, the Board is unable to identify a reasonable basis for granting the Veteran's claim.  Also considered was referral of the case for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1), but the Board finds no basis for further action on this question as there are no circumstances presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  

Consideration of referral for an extraschedular rating requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom.  Thun v. Shinseki, No.2008-7135 (Fed. Cir. Jul. 17, 2009).  The first question is whether the schedular rating adequately contemplates the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the Claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the Claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the Claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted.

In this case a review of the evidence has led the Board to conclude that the schedular rating defined by 38 C.F.R. § 4.130, DC 9411 (2010) adequately contemplates the Veteran's disability picture.  See Thun, 22 Vet. App. at 115.  Indeed, the most recent treatment records reflect that the Veteran is employed.  Accordingly referral to Under Secretary for Benefits or the Director of the Compensation and Pension Service for determination and assignment of an extraschedular rating is not warranted.

Based on the foregoing, the Board concludes that an increased evaluation for the period from May 2, 2006, is not warranted.  


ORDER

Entitlement to an initial rating in excess of 50 percent for PTSD for the period from May 2, 2006, is denied.  


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs