Citation Nr: 1133769 Decision Date: 09/12/11 Archive Date: 09/22/11 DOCKET NO. 09-32 304A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD N. L. Northcutt, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2008 and July 2009 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that the Veteran, through his attorney, has submitted evidence directly to the Board that has not been initially considered by the RO in an adjudicatory decision. However, as the Veteran's attorney waived initial RO consideration when submitting this evidence, the Board finds that this evidence may be considered by the Board without first remanding the Veteran's claim to the RO for initial consideration of that evidence. Additionally, the Board notes that a review of the Veteran's claims file reflects that in a notice of disagreement received in December 2008, the Veteran expressed his disagreement with the denial of service connection for a lower back disorder and associated radiculopathy of the bilateral lower extremities, in addition to his disagreement with the initial rating assigned for PTSD. Thereafter, the RO increased the Veteran's PTSD rating to 30 percent and continued to deny service connection for a lower back disorder and radiculopathy, as reflected in a rating decision and statement of the case issued in July 2009. The Veteran thereafter continued to voice his disagreement with his PTSD disability rating, as reflected in a November 2009 statement, and in a February 2010 report of contact, the Veteran stated that he was not "opening new claims" for his back disorder (and related radiculopathy). A subsequent supplemental statement of the case adjudicated only the issue of PTSD, and the Veteran only referenced his PTSD increased rating claim in his substantive appeal forms. Moreover, the Veteran's attorney has presented arguments only with regard to the Veteran's PTSD increased rating claim. Accordingly, the Board concludes that the Veteran's February 2010 report of contact may be construed as a withdrawal of his appeal regarding service connection for a lower back disorder and radiculopathy. Thus, those issues are not discussed in the instant appeal. Furthermore, the Board notes that the Court has held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then the issue of entitlement to a TDIU must be explored as part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). In that regard, the Board notes that as reflected in the November 2010 private psychiatric evaluation of record, the psychiatrist opined that in his opinion, the psychiatric evaluations of record created during the instant rating period reflect the Veteran's inability to function in a workplace. Accordingly, the Board finds that a claim for entitlement to a TDIU has been raised by the record, and this claim is according referred to the RO for appropriate action. FINDING OF FACT The medical evidence of record reflects that the Veteran's PTSD symptomatology has caused occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; however, the evidence does not reflect that his symptoms have caused total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating of 70 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, and 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, however, the Board notes that the Veteran's claim for a higher rating arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that in these circumstances, once notice has been satisfied in conjunction with the grant of service connection additional notice is not required under 38 U.S.C.A. § 5103. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the appeal may be adjudicated without remand for further notification. The Board also finds that all relevant facts have been properly developed and that all available evidence necessary for equitable resolution of the issues decided on appeal has been obtained. The Veteran was offered an opportunity to testify at a hearing before the Board, but he withdrew his hearing request. Additionally, the Veteran's VA and private treatment records have been obtained, and he was afforded a VA examination. While the Veteran's Social Security Administration (SSA) records have not been obtained, the Veteran has indicated that he was awarded SSA disability benefits due to his back disability, not a psychiatric disability. Accordingly, as there is no indication that these records would pertain to the instant PTSD increased rating claim, the Board finds that the claim may be adjudicated without first obtaining these records. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Increased Rating The Veteran contends that the current severity of his PTSD entitles him to disability rating in excess of 30 percent. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an 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 a veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Regarding the rating criteria for PTSD, a 30 percent rating is assigned when PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). A 50 percent rating is assigned when PTSD causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is assigned when a veteran has 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); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when a psychiatric disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. Furthermore, a Global Assessment of Functioning (GAF) rating is a scale 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. 1994). A GAF score of 41 to 50 is reflective of 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). A GAF score of 31 to 40 is reflective of 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). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The relevant evidence of record consists of the Veteran's VA treatment record, Veteran Center treatment records, private psychiatric evaluations, and a VA examination report. An October 2007 VA treatment record reflects the Veteran's report of experiencing recurrent nightmares, flashbacks, depression, anger, and guilt. On mental status examination, the Veteran demonstrated appropriate hygiene and attire, normal speech, normal insight and judgment, decreased psychomotor status, and a depressed mood with a tearful affect. However, the Veteran demonstrated no thought, perceptual, or cognitive disturbances, and no suicidal or homicidal ideations or plans. A Global Assessment of Functioning score of 55 was assigned. A November 2007 VA treatment record reflects that the Veteran reported experiencing nightmares almost every night, difficulty sleeping, and frequent flashbacks. The Veteran also reported that his two prior marriages had ended in divorce, that he had recently ended a ten-year relationship, and that he has two adult daughters from his first marriage. A February 2008 private psychological evaluation report reflects the Veteran's report of experiencing depression, irritability, anger, an impaired memory and concentration, and frequent suicidal thoughts. The evaluating medical professional noted that the Veteran reported a great deal of emotional pain due to his PTSD. The Veteran underwent a VA PTSD examination in June 2008, during which the Veteran reported experiencing depression, a sleep impairment, apathy, some decrements in hygiene, and suicidal thoughts with no active intent or plan. The Veteran also reported having a poor relationship with his sister, but an "excellent" relationship with one of his two adult daughters; an amicable, although not close, relationship with his other daughter; a close relationship with a child he considers to be like a son (the son of his former long-term girlfriend); and a good relationship with his elderly mother, as he reported living with her and enjoying being her caretaker. The Veteran also reported that he was an avid fisherman and regularly attended church services, although he stated that he had felt ostracized by other church members since his recent arrest after physically assaulting a fellow church member with a box cutter in the church parking lot. On mental status examination, the Veteran was noted to have a clean, neatly-groomed appearance; unremarkable psychomotor activity and speech; a cooperative attitude; an appropriate affect; and an anxious mood. Additionally, the Veteran was fully-oriented to person, place, and time; had no abnormalities of thought processes, content, memory, or concentration; and had no delusions, hallucinations, obsessive or ritualistic behavior, or panic attacks. The examiner further noted that the Veteran's PTSD symptoms did not interfere with his ability to perform his activities of daily living. In conclusion, the examiner diagnosed the Veteran with PTSD, but stated that his symptoms were mild in severity, and assigned a GAF score of 60. An August 2008 Vet Center treatment record reflects the Veteran's report of experiencing short and long-term memory impairment. The Veteran also reported that he was employed as a truck driver for 11 years, which he ceased due to his physical disabilities, after which he sold cars and did various other jobs. Vet Center treatment records from October 2008 to January 2009 reflect the Veteran's report of experiencing a great deal of anxiety due to his recently-diagnosed cardiovascular blockages, his upcoming court date for his personal assault charges, and a dispute he was having with his home alarm service provider. The treating medical professional noted that the Veteran appeared both anxious and depressed. A Vet Center intake report was created in December 2008, and the evaluating medical professional noted that the assessment was based on the Veteran's psychotherapy sessions over a several month period. A mental status examination conducted at this time noted the Veteran to have a neat appearance; a friendly, cooperative, suspicious, and anxious manner; appropriate speech; an impaired memory; a labile affect; fair judgment; and tense, agitated, and restless psychomotor activity. The Veteran was also noted to be fully oriented to time, place, and person; with no evidence of delusions or disorganized thinking, although the Veteran reported experiencing hallucinations of the faces of those he killed during the Vietnam War. The Veteran also reported a sleep impairment and denied having any current suicidal intent or plan (although reporting having a suicidal plan in 1991). The Veteran also reported experiencing some recent homicidal ideations, citing his fight in which he cut his opponent's leg with a box cutter resulting in a wound that required 100 stitches to repair. A January 2009 VA treatment record reflects the Veteran's report that he believed that his PTSD symptoms had increased in severity, as he believed his anxiety had increased. The Veteran denied experiencing any suicidal or homicidal ideations at that time, and the treating medical professional assigned a GAF score of 65. A September 2009 VA treatment record reflects that the Veteran became angry and disruptive when the treating medical professional refused to prescribe Xanax as a sleep aid, as the medical professional stated that another prescription medication would be more suitable and that the VA did not prescribe Xanax as a sleep aid. A November 2009 VA treatment record reflects that on mental status examination, the Veteran was noted to be appropriately dressed and demonstrate good eye contact, with a reportedly "all right" mood and a full range, congruent affect, and no evidence of psychomotor agitation or retardation. The Veteran's memory, judgment, insight, thought processes, thought content, and speech were noted to be normal (although the treating medical professional noted that the Veteran tended to ramble), and the Veteran was fully alert and oriented. The Veteran also denied experiencing any suicidal or homicidal thoughts. The treating medical professional assigned a GAF score of 56 to 58. A January 2010 VA treatment record reflects the Veteran's report of continuing to experience a sleep impairment, nightmares, hypervigilance, and an exaggerated startle response. Specifically, the Veteran reported that when recently attempting to withdraw money from an ATM machine, he became distracted by the crowd forming behind him and was unable to recall his PIN number. The Veteran also reported recently running his truck into a pole in a parking lot when a backfiring car startled him. The Veteran further recounted his previous personal assault, but stated that he harbored no homicidal ideations towards the victim, and he also denied experiencing any suicidal ideations. On mental status examination, the Veteran was noted to be appropriately dressed and demonstrate good eye contact, with a reportedly "okay" mood and a full range, congruent affect, with no evidence of psychomotor agitation or retardation. The Veteran's memory, judgment, insight, thought processes, thought content, and speech were noted to be normal, and the Veteran was fully alert and oriented. The treating medical professional assigned a GAF score of 58. A subsequent January 2010 VA treatment record reflects the Veteran's request for admission for in-patient psychiatric care, as the Veteran was advised that in-patient treatment would allow his treatment providers to "get his [psychiatric medications] straight." The treating medical professional noted that the Veteran's primary complaint was hopelessness, despite taking psychiatric medications and engaging in individual psychotherapy sessions. On mental status examination, the Veteran was assessed as alert, cooperative, and fully oriented. The Veteran demonstrated good eye contact and had normal speech with no evidence of any abnormal psychomotor activity. The Veteran's thought processes were tangential but redirectable. The Veteran reported passive suicidal ideation with no active intent or plan, no homicidal ideation, and no audio-visual hallucinations. The Veteran's memory, attention, and concentration were assessed as fair; his mood was noted to be dysthymic; and his insight and judgment were assessed as poor. The treating psychiatrist assigned a GAF score of 28. A March 2010 VA treatment record reflects that the Veteran was hospitalized for psychiatric treatment for one day in January 2010 before he left against medical advice. On mental status examination, the Veteran was appropriately dressed, and demonstrated good eye contact, with a reportedly "better" mood and a full range, congruent affect, with no evidence of psychomotor agitation or retardation. The Veteran's memory, judgment, insight, thought processes, thought content, and speech were noted to be normal, and the Veteran was fully alert and oriented. The Veteran also denied experiencing any perceptual disturbances or suicidal or homicidal thoughts. The treating medical professional assigned a GAF score of 58. A September 2010 letter from the Veteran's Vet Center treatment provider reflects the treatment provider's opinion that the Veteran is one of the most persistently, intractably impaired veterans in his care, as the Veteran has not been able to sustain any forward progress in his treatment, despite his stated intention to change and his regular participation in group and individual therapy sessions. The treatment provider further stated that the Veteran is unable to maintain social relationships other than caring for his elderly mother, as he ceased attending church after personally assaulting a fellow church member with a weapon, terminated his engagement to his long-term girlfriend, and threw a clipboard at a VA nurse (the disruptive behavior noted in the September 2009 VA treatment record discussed above). The treatment provider stated that the Veteran has extremely poor social-reality testing and persistently misperceives social situations, noting that he adamantly defended both his aggravated personal assault of his fellow church member and assault on the VA nurse as completely justified. Accordingly, the treatment provider opined that the Veteran's PTSD results in a major impairment of his social and occupational functioning, as the Veteran is in a constant state of elevated psychophysiological hyperarousal; is unable to work due to his tendency to misperceive feedback from his environment as threatening; is unable to maintain a stable, enduring romantic relationship; and is unable to maintain basic activities of daily living, as he reports that he only maintains his personal hygiene on days when he has VA or Vet Center appointments. A November 2010 private psychiatric evaluation reflects the psychiatrist's opinion that the Veteran has severe PTSD that is completely disabling, and that based on his review of the Veteran's psychiatric treatment records, the 2008 VA examiner's opinion that the Veteran's PTSD is mild in severity is an aberration. The psychiatrist assessed the Veteran with a GAF score of 30 at the time of the evaluation and opined that the Veteran's GAF scores since his discharge from service in 1968 had ranged from 30 to 40. After reviewing all of the evidence of record, the Board finds that the Veteran's current disability picture is more accurately reflected by a 70 percent disability rating, as the medical evidence of record demonstrates that the Veteran has occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Specifically, the record reflects that the Veteran has reported the following symptoms that are contemplated by a 70 percent rating: passive suicidal ideation (with no active intent ot plan); an elevated state of anxiety that his treatment providers have noted to interfere with his routine activities (such as withdrawing funds from an ATM or parking his vehicle); an impaired impulse control demonstrated by his verbal altercations of record (such as being disruptive while in VA care, leaving psychiatric care against medical advice, and personally assaulting a fellow church member with a weapon); reported neglect of personal appearance and hygiene on days when he does not receive VA treatment; a reported and perceived difficulty in adapting to work-settings, as assessed by treatment providers; and a history of an inability to maintain romantic relationships. However, the Board does not find that a higher disability rating of 100 percent is warranted, as the evidence of record fails to demonstrate that the Veteran's PTSD causes total occupational and social impairment. In that regard, the Veteran has not demonstrated a gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. Moreover, the Veteran has reported only suicidal thoughts, with no active intent or plan, and he has repeatedly denied experiencing any current thoughts of hurting his fellow church member whom he physically assaulted. Furthermore, the Veteran has consistently demonstrated adequate hygiene and grooming during all psychiatric treatment administered during the instant rating period; he has consistently been oriented to both time and place; and he has exhibited no memory loss for names of close relatives, occupation, or own name. Furthermore, the Veteran has reported having a good relationship with his mother, his daughters, and a child he considers to be a son. The Board acknowledges that the GAF scores assigned throughout the rating period have largely ranged from 56 to 65, with the exception of a GAF score of 28 assigned in conjunction with the Veteran's voluntary psychiatric hospital admission and the GAF score of 30 assigned in conjunction with the Veteran's November 2010 private psychiatric evaluation. The Board has considered these scores when assigning the Veteran's current rating, but notes, as referenced above, that GAF scores are not determinative of the percentage rating to be assigned. The Board finds that given the Veteran's total disability picture, as represented by his reported symptoms, the psychiatric assessments of record, and the various GAF scores of record, the Veteran should be awarded a 70 percent disability rating, but not more. The Board also expressly acknowledges its consideration of the lay evidence of record, namely the Veteran's reported PTSD symptoms as reflected in his VA and Vet Center treatment records, private psychiatric assessments, and VA examination report. (The Veteran did not report his PTSD symptoms in his submitted statements of record.) The Board further acknowledges that the Veteran is competent to report his PTSD symptoms, and the Board finds the Veteran's reports to be credible. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Moreover, the Board's award of an increased rating is predicated, in part, on the Veteran's reported PTSD symptoms. However, as outlined above, when considering these reports with the objective medical evidence of record, the totality of the evidence fails to present a basis for awarding a disability rating in excess of 70 percent. The Board has also considered whether a referral for an extraschedular evaluation is warranted with regard to the Veteran's PTSD increased rating claim. The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-1996 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's PTSD disability level and symptomatology; thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral for extraschedular consideration is not warranted. ORDER Subject to the law and regulations governing the payment of monetary benefits, a 70 percent disability rating for PTSD is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs