Citation Nr: 1131997 Decision Date: 08/30/11 Archive Date: 09/07/11 DOCKET NO. 09-18 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating higher than 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to January 1953 and from January 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 Regional Office (RO) in Decatur, Georgia, rating decision, which continued the Veteran's claim of increased rating for PTSD. This case has subsequently been transferred to the Atlanta, Georgia, RO. In February 2011, the Board remanded this matter for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the rating period on appeal, the objective evidence reveals that the Veteran's PTSD has been manifested by symptoms including panic attacks, nightmares, and mild memory impairment, intrusive thoughts with Global Assessment of Functioning (GAF) scores of 45 to 65; objectively, the Veteran had good judgment, was oriented to person, place, time, maintained a relationship with spouse and family, and had the ability to maintain basic hygiene. CONCLUSION OF LAW The criteria for an increased rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Duty to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Additionally, this 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. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sough, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the duty to notify was satisfied by notice letters sent to the Veteran in August 2006, October 2006, and June 2007. These letters informed him of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the Veteran should provide. These letters also addressed the process by which effective dates are assigned. Dingess/Hartman, 19 Vet. App. 473 (2006). The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining medical records and providing the Veteran with VA examinations. Consequently, the duty to notify and assist has been satisfied, as to those claims now being finally decided on appeal. Increased Rating The Veteran contends that he is entitled to a disability rating in excess of 30 percent for his service-connected PTSD. For historical purposes, in September 1993 the RO granted the Veteran's claim of service connection for PTSD, and a 10 percent disability rating was assigned, effective as December 9, 1991. This was subsequently increased to a 30 percent in, effective as of May 22, 1998. In a September 2007 rating decision, the RO continued the 30 percent rating. The Veteran timely appealed this decision to the Board contending that he was entitled to a disability rating in excess of 30 percent. In February 2011, the Board remanded this matter for a new VA examination. Subsequently, in June 2011 the Appeals Management Center (AMC) continued the Veteran's 30 percent rating. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2010). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected PTSD is evaluated under Diagnostic Code 9411. The regulations establish a general rating formula for mental disorders. See 38 C.F.R. § 4.130 (2010). 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. See Mauerhan v. Principi, 16 Vet. App. 436 (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. Pursuant to the General Rating Formula, a 30 percent disability rating requires occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions and recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for 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. A 100 percent disability evaluation requires total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. Id. Global Assessment of Functioning (GAF) is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996) citing Diagnostic and Statistical Manual of Mental Disorders, 4th ed. 1994) (DSM-IV). Rating agencies are charged with the responsibility of being thoroughly familiar with DSM-IV in order to apply the general rating criteria for rating mental disorders. See 38 C.F.R. § 4.130 (2010). Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. GAF scores ranging between 41 and 50 are assigned when there are 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. After carefully reviewing the evidence of the record, the Board finds that the overall evidence supports a 30 percent disability rating, but no higher, for the Veteran's service-connected PTSD throughout the pendency of the claim and appeal. According to the evidence of record, the Veteran underwent a VA PTSD examination in February 2007, where the examiner noted extreme difficulty extracting information from the Veteran in order to establish a baseline for his PTSD symptoms. Therefore, the examiner stated it was difficult to "develop a level of symptom increment or decline." The Veteran repeated that his symptoms were his nerves. He stated, "I still can't get rid of my nerves. I went to a doctor in the last four years, and he said that my nerves had got bad." The Veteran stated he had nightmares and had difficulty sleeping at night. The Veteran stated he was unemployed as a result of his worsening arthritis and did not believe his PTSD was a contributing factor. See VA examination, dated February 2007. The Veteran stated his social interactions included going to church but not "[getting] in the middle of things..." and that his marital and family relationships were good. He denied any history of violence, assaultiveness, suicide attempts, obsessive/ritualistic behavior, or delusions and hallucinations. The examiner noted he maintained good eye contact, exemplary hygiene, and was well oriented to person, place, and time. The Veteran stated his memory was impaired. The Veteran's speech was slow, impeded by his hearing problems, but the examiner stated there was no irrelevant or illogical content. The Veteran expressed he was mostly sad. Id. The examiner concluded that "[the Veteran's] depression, nightmares and sleeping problems had moderately, but not substantially altered, with an accretion of naturally occurring since his diagnosis, six years previously." The PTSD diagnosis was continued and the Veteran's GAF score was 50. Id. The Veteran was afforded another VA examination in October 2007 by the same examiner from the February 2007 VA examination. The examiner noted that the Veteran's responses "were not as crisp and as coherent as recalled from past interview." The Veteran reported his PTSD was worsening and stated his nerves were affected. The examiner noted the Veteran was unable to give coherent responses regarding the severity of his symptoms. See VA examination, dated October 2007. The Veteran reported no history of panic attacks, "assaultiveness", suicidal or homicidal ideation. There was also no obsessive or ritualistic behavior. The examiner stated the Veteran's "thought processes seemed moderately more tangential and loose at this time although I did not find any incoherence or disorganization." The Veteran's personal hygiene was fair and he was oriented to circumstance, place, person, and time. The Veteran's memory was "somewhat spotty but possibly age- and physical condition- appropriate." The Veteran denied being depressed and stated he slept well at night. The Veteran's GAF score was 45. Id. VA treatment records from March 2007 to March 2009 reflect that the Veteran complained of ongoing sleeping problems, particularly nightmares regarding his military service in Korea. He denied hypervigilence but did experience intrusive recollections, avoidance, anxiety and occasional irritability. The Veteran denied socialization problems, suicidal and homicidal ideation, paranoia, and audio and visual hallucinations. He reported his appetite and energy was low. His memory deficits were stable and within normal limits. The Veteran's GAF score ranged from 45 to 55 during his period. See VA treatment record, dated March 2007 to March 2009. The Veteran underwent another VA examination in May 2011. The Veteran stated he was "doing all right (with wife and kids)" and that he "get[s] along fine with everybody." The Veteran stated he often attends church on Sundays but sometimes (very seldom though) misses service either because he is nervous or stomach problems. The Veteran stated there was no history of suicide attempts, violence or assaultiveness, and delusion. See VA examination, dated May 2011. The Veteran arrived at the examination clean. His psychomotor activity and speech was unremarkable. The Veteran was cooperative, had a normal affect, and denied significant or prolonged symptoms of depression. His attention was intact, and was oriented to person, time, and place. The Veteran's thought process and content was unremarkable and the Veteran understood the outcome of behavior. There was no evidence of panic attacks, inappropriate behavior, homicidal or suicidal thoughts, impaired impulse control, and obsessive or ritualistic behaviors. He stated he understood he had a problem. His remote and recent memory was mildly impaired. Id. The Veteran reported recurrent and intrusive distressing recollections and makes efforts to avoid thoughts, feelings, or conversations associated with the trauma. The Veteran reported difficulty falling and staying asleep. He denied significant symptoms of avoidance and arousal. The examiner noted the Veteran did not endorse symptoms consistent with PTSD at the examination suggesting that the Veteran's PTSD was in remission. The examiner further explained that the "symptoms of anxiety disorders, including PTSD, tend to decrease in older age, typically leading to remission (which may be the case in [the Veteran])." The Veteran's GAF score was 55 but the examiner stated it was "associated with limitation due to physical health complaints (blindness, hearing loss, COPD) rather than mental health symptoms... [The Veteran] was unable to provide any specific activities that were consistently impaired/avoided due to his mental health symptoms." The examiner further noted that the Veteran "described living a very full life, despite his age and physical health problems." Id. The Veteran submitted a statement in June 2011 stating that he did not agree with his May 2011 examination. The Veteran stated he never denied panic attacks and violent episodes. He explained that he experiences daily panic attacks and have reoccurring violent episodes in nightmares. The Veteran stated he is quiet by nature and may not have understood all the questions asked. See Veteran's statement, June 2011. The Board also notes that several lay statements have been submitted in May 2009 in support of the Veteran's appeal. All the letters state the Veteran's health has been rapidly deteriorating, particularly the Veteran's vision and hearing. A letter from the Veteran's wife, M. J. B., stated he does not sleep well at night due to nightmares. See letters from M. J. B., R. M., and J. B. Jr., dated May 2009. Based on the above evidence, the Board concludes that the Veteran is not entitled to a disability rating in excess of 30 percent for his PTSD. The medical evidence does not demonstrate that the Veteran's PTSD is manifested by 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, or disturbances of motivation and mood. He has been consistently described as being oriented to person, place and time. Regarding the Veteran's contention that the May 2011 VA examination did not accurately reflect his current symptoms of daily panic attacks and reoccurring violent episodes in nightmares, the Board still finds the Veteran's symptomatology as a whole most accurately reflects a 30 percent disability rating. He is able to maintain his personal hygiene as well as other basic activities of daily living. It has been noted that the Veteran maintains a good relationship with his wife and family. He has been able to attend church. The Veteran is able to generally maintain self-care, normal conversation. He experiences occasional depressed mood, anxiety, chronic sleep impairment, and mild memory loss. There is, however, no evidence of delusions or hallucinations, suicidal and homicidal ideation, and he has demonstrated no inappropriate behavior. Additionally, in making this decision the Board has considered the Veteran's wife's statement as well as those provided by the Veteran and his family members. Such statements describe his PTSD symptoms, including sleep disturbance and declining health. Such statements, however, have been considered and thus, given the symptomatology described above, the Board still finds the evidence of record as a whole does not support the assignment of a rating in excess of 30 percent for PTSD. Finally, while the Board acknowledges that the Veteran briefly had a GAF score of 45 during the rating period, such GAF scores have not been shown to be solely based on the service-connected disability at issue; the Board notes that the Veteran is also impaired by his nonservice-connected disorders. GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health - illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV)). 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). However, the Board also points out that the clinical findings are nevertheless more probative in making this important determination, as these findings more accurately portray the relevant symptoms of only the Veteran's service-connected PTSD. See 38 C.F.R. §§ 4.2, 4.6. In this regard, the Board points out that VA treatment notes within the record consistently indicate that the Veteran's symptoms were productive of no more than moderate impairment due to his PTSD. There is no justification for increasing the rating for the Veteran's PTSD in excess of 30 percent on the basis of his GAF score. See 38 C.F.R. § 4.7. Based on the evidence of record, the Board finds that the Veteran's PTSD symptomatology more nearly approximates his current 30 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability rating in excess of 30 percent for PTSD must be denied. Extraschedular Consideration Finally, the Board concludes that extraschedular consideration is not warranted. In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, a rating has been assigned that contemplates the disability and symptomatology of each and every manifestation of the Veteran's disabilities resulting from PTSD. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. As stated above, the Veteran reported he retired in 1990 at the age of 65, due to his arthritis. There is no evidence in the medical records of an exceptional or unusual clinical picture. Furthermore, there are no manifestations of either disability that have not been contemplated by the rating schedule. The Board has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a disability evaluation in excess of 30 percent for PTSD is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs