Citation Nr: 1135993 Decision Date: 09/26/11 Archive Date: 10/03/11 DOCKET NO. 08-10 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating greater than 30 percent for the service-connected post-traumatic stress disorder (PTSD) prior to February 26, 2008. 2. Entitlement to an initial rating greater than 50 percent for the service-connected PTSD beginning February 26, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom INTRODUCTION The Veteran had active service in the U.S. Marine Corps from June 1962 to January 1970. These matters come before the Board of Veterans' Appeals (BVA or Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California which granted service connection for PTSD with a 30 percent rating. During the pendency of the appeal, but before the case was sent to the Board, in March 2009, the RO granted an increased rating of 50 percent for the service-connected PTSD, effective February 26, 2008, and a temporary 100 percent rating under 38 C.F.R. § 4.29 from May 14, 2008 to June 30, 2008. As the award is not a complete grant of benefits, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). A claim for an increased rating contains an implicit claim for total disability based on individual unemployability (TDIU) when the Veteran presents evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009) In connection with his increased rating claim, the Veteran filed a claim for TDIU in his March 2008 appeal which was separately adjudicated and denied in a February 2010 rating. The Veteran did not appeal the decision or request reconsideration and the issue is not currently before the Board. FINDINGS OF FACT 1. The Veteran's service-connected PTSD during the entire time period beginning on the date of service connection is manifested by a level of impairment that more nearly approximates that of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; panic attacks; impaired judgment; disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. 2. The service-connected PTSD has never been shown to produce occupational and social impairment, with deficiencies in most areas, due to symptoms such 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; neglect of personal appearance and hygiene and inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, and no greater, for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for an initial rating in excess of 50 percent for PTSD beginning February 26, 2008 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance A December 2005 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The issues of an initial higher rating for PTSD involves a "downstream" issue, as the claim for service connection was granted in the May 2007 rating decision appealed, and the current appeal arises from the Veteran's disagreement with the ratings originally and subsequently assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated; it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). As the Veteran's claim for an increased initial disability rating was appealed directly from the initial rating assigned, no further action under the section 5103(a) is required. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regardless, notification of the regulations pertinent to the establishment of an effective date and of the disability rating was provided in a June 2008 letter. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in December 2008; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner thoroughly evaluated the Veteran's current disability level and provided enough information to allow proper evaluation under the rating schedule. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The Veteran's service-connected PTSD is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent evaluation is to be assigned for 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when the Veteran exhibits 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. A 70 percent evaluation is assigned when the Veteran exhibits 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); inability to establish and maintain effective relationships. A 100 percent evaluation is assigned when the Veteran exhibits 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. The symptoms recited in the criteria in the rating schedule 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. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF score between 31-40 is indicative of some impairment in reality resting or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score between 41 and 50 is indicative 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 between 51 and 60 is indicative of 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 coworkers) In an October 2006 letter the Veteran's private psychologist, Dr. PB, reported that she had been treating him since December 2005 for PTSD and that his symptoms had escalated since his forced age-based retirement from United Airlines. The Veteran's symptoms included frequent nightmares, hypervigilance, anger, distrust of authority (especially the government), depression, guilt, sleep impairment, exaggerated startle response, and emotional detachment. He is very guarded about his experiences in Vietnam to protect himself from his recollections. The Veteran presented with good hygiene and grooming, unimpaired memory and concentration, with poor to fair judgment and insight which was improving. He was functioning at an above average intelligence level, and there was no evidence of a psychotic disorder. The Veteran's affect was labile and he was most comfortable when helping others in a group. Dr. PB diagnosed chronic severe PTSD with depression with a GAF of 49. In February 26, 2008 the Veteran was admitted to the VA emergency department for detox due to alcohol. The next day at a psychiatric evaluation he reported nightmares and flashbacks which were worse after seeing helicopters, some hypervigilance, startled with loud noises, and emotional numbing. He felt he saw Viet Cong when intoxicated. The Veteran denied symptoms of psychotic disorder, depression or mania, no suicidal or homicidal ideation, and no other anxiety disorder symptoms. On April 29, 2008 the Veteran was admitted to the PTSD program at the VA but he later left and was picked up by the police as he was disorganized and wandering in traffic and was sent to the county hospital. The Veteran was eventually admitted to the PTSD program in May 2008. In a June 19, 2008 PTSD treatment note the Veteran reported that his depression had lifted and he was now looking at how alcohol has not been a help to him. In July 2008 the Veteran appeared alert with a reserved attitude, had coherent and relevant speech, and restricted affective response. He reported an ok mood and denied suicidal ideation or violent impulse. The Veteran's thinking was goal directed, with no bizarre thought content. His orientation and memory were intact with fair judgment. He was noted to have a GAF of 65. At a July 2008 mental health assessment the Veteran reported difficulty controlling his emotions and being tearful often. He also reported hypervigilance, sleep problems, startle response, emotional numbing, general avoidance and isolation. The Veteran described depressive thought patterns with feelings of hopelessness and poor motivation as well as anger with a low tolerance for others. In a September 2008 letter, Dr. PB, reported that the Veteran was currently presenting with depression, flattened affect from his medication regimen and tearfulness. He was more socially withdrawn than in the past and continues to be guarded as to his Vietnam experiences. The Veteran remains at home more and rarely rides with his Marine Corps motorcycle club. He presented with good hygiene and grooming, slightly impaired memory and concentration, fair judgment and insight, was fully oriented with no evidence of a psychotic disorder. His affect was blunted and unlike before he was quiet and shares little in group therapy. Dr. PB diagnosed chronic severe PTSD with depression with a GAF of 46. At a November 2008 PTSD follow up the Veteran reported he had stopped taking his medications as they weren't doing anything for him, and he noticed he had gotten more depressed. He presented with a worsening of depressive symptoms and requested to have his medication renewed. He was diagnosed with PTSD with a GAF of 60. At a December 2008 VA examination the Veteran reported suffering from severe chronic depression since November 2007. He reported that he was divorced twice but is currently in a loving relationship, and has a good relationship with his three sisters and brother. The Veteran reported being socially withdrawn in the last year and that he no longer rides his motorcycle due to anxiety. He is socially isolated except for family. The Veteran reported drinking a bottle of vodka a day until he was hospitalized in February 2008. Upon examination he appeared clean, neatly groomed and casually dressed. He was lethargic and fatigued but his speech was clear and coherent. The Veteran was cooperative and attentive with a constricted affect and an anxious and depressed mood. He was oriented to people, place and time. The Veteran had unremarkable thought process, no delusions, good judgment, above average intelligence, and good insight. He reported only getting five hours of uninterrupted sleep per night. The Veteran reported visual hallucinations, no inappropriate behavior, and ritualistic behavior of saying the rosary every morning to get back to sleep. He reported frequent anxiety, even when faced with small setbacks. The Veteran denied homicidal or suicidal thoughts, good impulse control, no violent episodes, ability to maintain minimum personal hygiene, normal memory. The Veteran reported recurrent and intrusive distressing recollections and dreams with intense psychological distress at exposure to internal or external cues which symbolize or resemble the traumatic event. He makes efforts to avoid thoughts, feelings or conversations associated with the trauma, and avoids activities, places or people that arouse recollections. The Veteran had markedly diminished interest or participation in significant activities, with feelings of detachment or estrangement from others with restricted range of affect. The examiner found the Veteran to have chronic moderate PTSD symptoms with a GAF of 50. He reported being fairly stable psychologically until about two and a half years ago when the symptoms got worse. The Veteran started drinking heavily in November 2007 and was hospitalized in February 2008 for treatment of depression, alcohol and PTSD. He reported thoughts of suicide but had no current intent. The examiner found that the Veteran's severe depression and moderate PTSD impaired his ability to work and socialize. The examiner found no total occupational and social impairment due to PTSD. The PTSD symptoms cause deficiencies in judgment, thinking, work and mood. In a February 2009 mental health management note the Veteran reported doing better after Prozac but was still in a depressed mood where he has trouble getting out of bed, feeling empty and hopeless. He still maintained a relationship with his longtime girlfriend. The Veteran was tidily dressed in casual clothes, alert, related well, speech was coherent and relevant. He had restricted affective response, mood was reportedly better but he was still in depressed state. The Veteran denied suicidal ideation or violent impulse. No bizarre thought content. He had goal directed thinking and his orientation and memory were intact with fair judgment and insight. The Veteran was diagnosed with PTSD with GAF of 60. In June 2009 he reported still dreaming about combat experiences in Vietnam, not trusting people, isolation and mood irritability but with improved depressive symptoms after adding medication. A week later he reported increased depressive symptoms but noted that another anti-depressant had been added the week before. At a September 2009 primary care visit he reported being on medications for PTSD and feeling better. Numerous lay statements were submitted. In a March 2008 statement the Veteran's sister reported that he seems depressed most days but tried to hide it, and that he has trouble sleeping. In March 2008 statements, a friend reported that the Veteran had been isolating himself in his house, and another friend reported a noticeable deterioration in his condition in the last two years with outbursts of extreme irritability and anger and difficulty remembering when he is supposed to meet with people. The Veteran's predominant symptoms are nightmares, flashbacks, sleep disturbances, anxiety, difficulty with anger, flattened affect and depression. At the VA examination he denied suicidal ideation but the examiner reported he had thoughts of suicide without any intent. He reported hallucinations of seeing the Viet Cong when he was intoxicated. The Veteran's appearance and speech has always been appropriate. He is capable of functioning independently and managing his affairs. The totality of the record reflects that the Veteran's PTSD-related symptoms have remained fairly consistent since the effective date of service connection. The Veteran has undergone some periods where there was an acute increase in symptoms especially when he was drinking heavily. The Veteran was granted a temporary 100 percent rating for his period of hospitalization for PTSD in-patient treatment. Overall, however, the symptoms since the date of the claim more nearly approximate the criteria for the assignment of a 50 percent rating. A higher, 70 percent evaluation is not warranted. The evidence does not show the Veteran to have suicidal ideation, obsessional rituals, illogical obscure or irrelevant speech, near-continuous panic or depression that affects his ability to function independently or appropriately. The Veteran does not exhibit spatial disorientation, neglect of personal appearance or hygiene. Rather, the evidence shows that the Veteran has good relationships with his siblings and friends, and has a long term girlfriend. While the evidence shows that the Veteran has difficulty in establishing and maintaining effective social relationships, he clearly does not exhibit an inability to establish and maintain such. The level of impairment associated with PTSD has been relatively stable throughout the appeals period, or at least has never been worse than what is warranted for a 50 percent rating. Therefore, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his PTSD should be rated higher than the current rating. He is competent to report his symptomatology. As a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the rating evaluation of PTSD and his views are of no probative value in that regard. And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the detailed evaluations provided by the medical professionals who have treated him and conducted comprehensive examinations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation 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. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a 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. Thun, 22 Vet. App. 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. Thun, 22 Vet. App. at 116. The schedular evaluations in this case are adequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorder but the medical evidence reflects that those symptoms are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. The Veteran has not required hospitalization due to his service-connected disability, other than once, and for which he received a temporary 100 percent rating, and marked interference with employment due to PTSD, has not been shown. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. ORDER An initial rating of 50 percent for the service-connected post-traumatic stress disorder (PTSD) prior to February 26, 2008 is granted subject to the laws and regulations governing the award of monetary benefits. An initial rating greater than 50 percent for the service-connected PTSD beginning February 26, 2008 is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs