Citation Nr: 1135908 Decision Date: 09/23/11 Archive Date: 10/03/11 DOCKET NO. 07-02 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from May 1965 to April 1967 and was awarded the Combat Infantry Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that, in relevant part, granted service connection for PTSD and assigned a 50 percent disability rating effective March 9, 2005. The Veteran perfected a timely appeal with respect to the initially assigned disability rating. The Board notes that, due to the location of the Veteran's residence, the jurisdiction of his appeal remains with the Louisville, RO. The Board notes that the Veteran's claim was previously before it in October 2010. At that time, the Board remanded the Veteran's claim for additional development. The Board finds that substantial compliance with its prior remand directives has been accomplished, and, therefore, it may proceed to adjudicate the Veteran's claim without prejudice to him. FINDING OF FACT The Veteran's PTSD is not productive of 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. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, & 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, & 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Requirements 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). For a claim seeking increased compensation for an already service-connected disability, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that he/she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment in order to substantiate the claim. Vazquez-Flores, 22 Vet. App. 37 (2008). VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. It is noted that, on September 4, 2009, the Federal Circuit vacated and remanded Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Specifically, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be veteran specific." In addition, the Federal Circuit determined that "while a veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative diagnostic codes or potential 'daily life' evidence, we vacate the judgments." In this case, notice was sent to the Veteran in June 2005, prior to the initial adjudication of his claim for service connection for PTSD. The Board notes that the Veteran's claim was granted in the August 2005 rating decision and evaluated as 50 percent disabling effective March 9, 2005 (the date the Veteran's claim for service connection was filed). Thereafter, the Veteran disagreed with the 50 percent evaluation of this now service-connected disability. Consequently, as the Veteran's claim was initially one for service connection, which has been granted, the Board finds that VA's obligation to notify him was met as the claim for service connection was obviously substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, any deficiency relating to the Veteran's appeal for an increased rating is not prejudicial to him. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence. The duty to assist includes providing the Veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations in July 2005 and December 2010. Significantly, the Board observes that he does not report that the condition has worsened since he was last examined, and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. The Veteran's claim for a higher evaluation for PTSD is an original claim that was placed in appellate status by his disagreement with the initial rating award. In these circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected PTSD is evaluated under Diagnostic Code 9411. The regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. at 443. The currently assigned 50 percent disability rating requires a showing of: 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. The criteria for a 70 percent rating are: 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. And, the criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130. A GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The Veteran's PTSD have been essentially manifested by symptoms including nightmares nightly or near nightly, intrusive thoughts and recollections of events that happened in Vietnam, flashbacks, irritability, anxiety, depression, sleep disturbance (problems with sleep onset and sleep maintenance), problems with concentration and attention, claustrophobia, panic attacks (prior to December 2010), hypervigilance, avoidance of stimuli (including talking about experiences or watching war movies or news), exaggerated startle response, anhedonia, and problems with self-esteem and self-worth. After considering all the evidence, the Board finds that it fails to establish that the criteria for a disability rating higher than 50 percent have been met. Although the Veteran has reported having some occupational difficulties, the evidence does not establish that he has had more than reduced reliability and productivity. Although the Veteran has only worked part time since 2005 (first in sales/delivery of furniture and then as a delivery person for a bank), the record demonstrates that this is more likely due to economic constraints than his PTSD symptoms, and the Veteran admitted as much at the December 2005 VA examination. Furthermore, although the Veteran reported at the March 2005 Psychiatric Consult and the July 2005 VA examination that he had difficulties with other employees at work, there is no evidence that he was ever disciplined or fired because of this. Rather, these positions he had ended due to economic difficulties (i.e., the businesses failed). Furthermore, the record indicates that, although the Veteran reported having a long history of PTSD symptoms, that he worked full-time in his family's business (a hardware store) until it was either sold or lost. Consequently, the Board finds that the Veteran's occupational impairment produced by his PTSD symptoms is more reflected by the criteria for a 50 percent disability rating than the more severe criteria for 70 percent requiring difficulty in adapting to stressful circumstances (including work or a worklike setting. As to social impairment, the Board finds that the evidence establishes that, although the Veteran has difficulty establish and maintaining relationships, he is not unable to do so. The Veteran has been married since 1968 and has three children and three grandchildren. Although at the July 2005 VA examination he reported he sometimes gets irritable with his wife, he reported at the December 2010 VA examination that he has a good relationship with his wife and children. Furthermore, although the Veteran reported at the July 2005 VA examination that he had no significant friendships, he indicated at the March 2005 psychiatric consult that it was a friend who encouraged him to seek treatment for his PTSD. Furthermore, at the December 2010 VA examination, he reported having a few close friends. In addition, he has reported that he regularly goes to church, although he does avoid most other social events and gatherings where there are crowds (mostly because of his claustrophobia). Thus, although the Veteran does have impairment of social functioning, it is most accurately reflected in the criteria for a 50 percent disability rating. The Board further notes that, although the Veteran reported having panic attacks ranging from several times a day to several times a week in March 2005 and July 2005, there is no evidence that these panic attacks were near-continuous or affected his ability to function independently, appropriately and effectively. The Veteran did not report that these panic attacks affected his ability to perform at his part-time jobs or that they affected his ability to function otherwise except that he avoided crowded or enclosed spaces due to his claustrophobia (which would trigger one of his panic attacks). Furthermore, at the December 2010 VA examination, the examiner noted there was no report of panic attacks. Nor did the Veteran report having panic attacks to his VA primary care physician in April 2011. Thus, the Board finds that there is no basis for assigning a higher disability rating based upon the Veteran's history of panic attacks. Examinations of the Veteran show that his judgment was good, his thoughts were clear and logical, and his speech was normal. There was no evidence of obsessions or ritualistic behaviors. He had no hallucinations or delusions. He was oriented in all spheres. His impulse control was intact although he reported episodes of irritability such as having "road rage" when he drives but at most he honks his horn. He denied any episodes of violent behavior resulting from his irritability. His personal appearance and hygiene were always appropriate. Furthermore, the Board acknowledges that the Veteran admitted to having passive suicidal thoughts with no intent or plan at a June 2005 psychiatric pharmacotherapy session and that suicidal thoughts had crossed his mind in the past at the July 2005 and December 2010 VA examinations. At both examinations, however, the Veteran denied current suicidal ideation and the remaining VA treatment records showed him denying having suicidal ideation. "Frequently, there may be thoughts of death, suicidal ideation, or suicide attempt. These thoughts range from a belief that others would be better off if the person were dead, to transient but recurrent thought of committing suicide, to actual specific plans of how to commit suicide. The frequency, intensity, and lethality of these thoughts can be quite variable." Diagnostic and Statistical Manual of Mental Disorders, (4th ed. Text Revision, 2000). Cf. 38 C.F.R. 4.125. The Board finds that the suicidal thoughts described in the medical reports here fall within the disturbances of motivation and mood that produce occupational and social impairment with reduced reliability and productivity warranting a 50 percent rating. They do not approximate the suicidal ideation associated with the much more severe occupational and social impairment characterized by deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood to such a extent that an 70 percent evaluation is warranted. Moreover, the Board notes that the evidence shows the Veteran has been diagnosed by the VA examiners to also have a depressive disorder that is felt to be either caused or aggravated by his PTSD. Although the Veteran has symptoms of depression combined with his symptoms of PTSD, the Board finds that they do not arise to the level of being near-continuous so that they affect his ability to function independently, appropriately and effectively. The medical evidence shows the Veteran is independent in his activities of daily living, that he always comes to appointments on his own, appropriately dressed, and is cooperative and responsive to the examination process. The Veteran is able to maintain work, albeit part-time; however, he has never indicated that his depression affects his behavior or his effectiveness at work. Thus, the Board finds that the Veteran's depression associated with his PTSD is productive of the 50 percent rating criteria of disturbances of motivation and mood rather than the more severe rating criteria required for a 70 percent disability rating. The Board also notes that the Veteran's GAF scores are supportive of the above findings. Although the VA physician who initially evaluated the Veteran for his PTSD in March 2005 assigned a GAF score of 45, which would be indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job), the Board finds that the actual symptomatology set forth in the evaluation simply do not warrant a finding that the criteria for a disability rating higher than 50 percent are met. The Veteran reported a friend was the one who encouraged him to seek treatment and that he was able to maintain his part-time job selling/delivering furniture. Rather, the Board finds that the subsequent GAF scores of 53 and 60 given by the VA examiners are more consistent with the Veteran's disability picture. A GAF score ranging from 51 to 60 contemplates 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). See DSM-IV at 44-47. In addition, the Board note that, the Veteran's PTSD appears to have improved since his initial assessment in March 2005. The VA treatment records show he had some improvement with his sleep and nightmares with medication in 2005. Furthermore, despite reporting in May 2008 to his primary care physician at VA that he continued to have nightly nightmares and episodes of panic or hyperventilation, he had discontinued all medications and treatment with Mental Health and refused follow up with the Mental Health Clinic at VA. Moreover, despite his complaints at the December 2010 VA examination that his memory was gone, he could hardly work and was feeling down and could not sleep, his overall disability picture was better as he reported being able to work part-time, having good relations with his wife and children and having some friends. Finally, 2011 VA treatment records demonstrate that the Veteran's PTSD has improved. At an April 2011 primary care physician visit, the Veteran reported having only intermittent issues with his PTSD despite not having any treatment therefor, and his PTSD was assessed to be stable. Finally, the Board must consider whether the evidence warrants referral of the Veteran's claim for consideration of an extraschedular disability rating under 38 C.F.R. § 3.321(b). It is generally provided that the rating schedule will represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from a service-connected disability. 38 C.F.R. § 3.321(a). In the exceptional case, however, to accord justice, where the schedular evaluations are found to be inadequate, the Secretary is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321(b)(1), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b). The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. In other words, whether the disability picture presented in the record is adequately contemplated by the rating schedule. In doing so, 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. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In the present case, the Board finds that the Veteran's disability picture is not so exceptional as to render VA's rating schedule inadequate to evaluate his service-connected PTSD. The Veteran's symptoms and their severity are clearly contemplated within the rating schedule. The Veteran has not alleged that he has any unusual or extraordinary symptoms that would make the rating schedule inadequate. Rather he merely complains of common symptoms related to his service-connected PTSD. Furthermore, the Board notes that the rating criteria used to evaluate the Veteran's PTSD already contemplates the impairment of his occupational functioning. Consequently, the Board finds that the preponderance of the evidence is against referral for consideration of an extraschedular disability rating. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against finding that a disability rating in excess of 50 percent for the Veteran's service-connected PTSD is warranted. The preponderance of the evidence being against the Veteran's claim, the benefit of the doubt rule is not for application. Consequently, the Veteran's claim must be denied. ORDER Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs