Citation Nr: 1100988 Decision Date: 01/10/11 Archive Date: 01/20/11 DOCKET NO. 09-14 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The Veteran had active military duty from June 1965 to June 1969 and is in receipt of the Purple Heart. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In April 2008, the RO awarded service connection for PTSD and an initial disability rating of 30 percent was assigned. In August 2009, the RO revisited the matter and determined that an initial disability rating of 50 percent was warranted throughout the entire rating period. FINDING OF FACT Throughout the rating period on appeal, the Veteran's PTSD has not been shown to be manifested by occupational and social impairment with deficiencies in most areas or inability to establish and maintain effective social relationships; his symptoms primarily involve depressed mood, anxiety, sleep impairment, intrusive thoughts, irritability, avoidance, isolation and memory and concentration difficulties. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim for an increased disability rating here arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and VA examination reports dated in January 2008 and August 2009. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2010). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Moreover, an appeal from the initial assignment of a disability rating, such as this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). A disability may require re-evaluation in accordance with changes in a Veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Throughout the entirety of the period on appeal, the Veteran's service-connected PTSD has been evaluated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). PTSD is evaluated under the General Rating Formula for Mental Disorders. Under this formula, a rating of 50 percent is assigned for 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 per 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 rating of 70 percent 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 work like setting); inability to establish and maintain effective relationships. A rating of 100 percent is assigned for 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 psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence of record includes Global Assessment of Functioning (GAF) scores. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32). GAF scores ranging between from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes) (2010). In January 2008, the Veteran was afforded a VA examination. The Veteran presented with complaints of an exaggerated startle response, episodic periods of depression, anxiety and impatience. He had also lost interest in camping, which he had previously enjoyed, as it reminded him of the jungles in Vietnam. He denied any drug or alcohol abuse. The Veteran had been consistently employed until October 2006, when he retired due to back and hip problems. He reported that he had friends and was involved in his church. He denied any educational or legal problems. Upon metal status examination, he was alert and oriented in all spheres. His mood was mildly depressed and affect was somewhat blunted. There was no disturbance of speech or thought process noted. He denied any suicidal or homicidal ideation and any auditory or visual hallucinations. He indicated that his short term memory was "okay"; however, he was experiencing difficulties with his long-term memory. Despite the Veteran's complaints that his memory was not as good as he wanted it to be, it was within normal limits. Judgment, insight and impulse control were intact. Two days after the examination, the Veteran contacted the VA examiner very distressed and reported that he had been remembering details of his military experience. He indicated that he coped by isolating himself and avoiding stressful stimuli. Although he had reported that he had friends, he revealed that he did not see them on a regular basis and that he spent most of his time alone. Additionally, he did not have a "close" relationship with his family. The VA examiner determined that the Veteran suffered from PTSD, characterized by re-experiencing events, intrusive memories, social isolation, blunted affect, concentration difficulties, increased startle response to loud noises and possibly irritability. A GAF score of 61 was assigned. Relevant VA treatment records include Mental Health consultation notes dated from January 2008 through January 2009. In January 2008, there was no evidence of suicidal ideation, homicidal ideation, visual or auditory hallucinations, depression anxiety, sleep disturbance, change in appetite, social withdrawal or decreased memory. In March 2008 and June 2008, the Veteran was oriented in all three spheres and he maintained good eye contact. His speech was productive and his mood was slightly anxious. His affect was appropriate and thought processes were goal directed and fairly rational. The Veteran denied any suicidal or homicidal ideation and any auditory or visual hallucinations. Memory was good and concentration was fair. Judgment was deemed fair and insight was limited. He was assigned a GAF of 61. In September 2008, December 2008 and January 2009, the Veteran was fully oriented. His mood varied from "good," to "slightly anxious" to "sad." He consistently exhibited full range of affect. Thought processes were linear and goal directed. He denied any hallucinations or delusions. Impulse control was fair. Insight and judgment were good. The Veteran did not receive any additional VA mental health treatment from February 2009 through October 2009. An additional VA examination was conducted in August 2009. At that time, the Veteran was living alone. He reported sleep difficulties, depression, intrusive thoughts and memories, avoidance of stressful stimuli, irritability, social isolation, anxiety and mild memory and concentration problems. He also tried to avoid crowds. The Veteran indicated that he had a good relationship with his two sons; however, he had limited contact with his 10 siblings. He stated that he isolated himself to avoid confrontations and because he did not want to get too close to someone for fear of losing them. He attempted to find peace through artwork and painting. Upon mental status examination, the Veteran's mood was somewhat depressed. Affect was constricted and blunted. There was no evidence of hallucinations, delusions or psychotic processes. Thought processes were organized, rational, and relevant. Thought content was preoccupied with Vietnam and its current effects on his life. He had occasional passive suicidal ideation. He was oriented in all spheres. Although he did report some mild memory and concentration problems, there was no objective evidence of such found during the examination. Insight was good and judgment was intact. Although he was easily frustrated, he went to great lengths to control himself. The examiner summarized that socially the Veteran was able to relate superficially to people and enjoyed trying to be helpful. He went to great lengths to avoid things that reminded him of Vietnam and actively suppressed painful memories. Additionally, on purely psychiatric grounds, the Veteran appeared able to work even though his physical problems prevented it. The examiner characterized the Veteran's symptoms as moderate in severity and a GAF score of 55 was assigned. Following a review of the record, the Board finds that the 50 percent evaluation assigned throughout the rating period on appeal most nearly approximates the Veteran's disability picture and that a higher evaluation is not warranted for any portion of the appeal. Indeed, the evidence of record is negative for a history of hospitalizations, or for symptoms of active suicidal or homicidal ideation. The evidence additionally fails to show impaired judgment and insight, obsessional rituals, speech or communication deficiencies, or near- continuous panic or depression affecting the ability to function independently, appropriately and effectively. Regarding impulse control, although the Veteran was irritable, he exerted great effort to control himself. Further, there is no demonstration of spatial disorientation or neglect of personal appearance. Despite his isolative tendencies, the August 2009 VA examiner indicated that the Veteran was able to relate superficially to others; he maintained a relationship with his two sons; he enjoyed being helpful to others and engaged in activities at his church. Finally, the August 2009 VA examiner did not attribute any occupational impairment to the Veteran's PTSD. Thus, all of these criteria associated with the next-higher 70 percent rating have not been satisfied. The Board does acknowledge the August 2009 VA examination finding of occasional passive suicidal ideation. However, this symptom, standing alone, does not lead to the conclusion that the Veteran's disability picture most nearly approximates the next- higher evaluation. This is especially so given that the remaining record reflects consistent denials of such symptomatology, with no showing of active thoughts during any portion of the rating period on appeal. Further weighing against the claim, the Veteran has been assigned GAF scores ranging from 55-61. Such scores are suggestive of moderate symptoms or moderate impairment in social or occupational functioning. Again, some social impairment is shown, but such degree of impairment is contemplated by the 50 percent evaluation already in effect. As noted, the Veteran engages in church activities and maintains a relationship with his two children. He also appears to engage in painting and artwork, as noted in the August 2009 VA examination. In conclusion, after considering the totality of the evidence of record, the Board finds that the criteria for an initial evaluation in excess of 50 percent have not been met. The pertinent medical evidence collectively reflects that the Veteran's PTSD was primarily characterized by depressed mood, anxiety, sleep impairment, intrusive thoughts, irritability, avoidance, isolation and memory and concentration difficulties. The Board finds that these symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, the level of impairment contemplated in the initial 50 percent disability rating. Overall, the evidence does not support an initial evaluation in excess of 50 percent for PTSD, and the claim for that benefit must be denied. 38 C.F.R. §§ 4.3, 4.7. Furthermore, as the criteria for the next higher, 70 percent, rating were not met it logically follows that the criteria for higher rating of 100 percent have not been met. To the extent that the evidence of record indicates that the Veteran is unemployed, the Board will address the criteria under 38 C.F.R. § 4.16, addressing total disability rating based on individual unemployability (TDIU), as a component of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009). In this case, a VA examiner in August 2009 finds that the Veteran's psychiatric problems do not preclude employment; rather, his physical disorders (for which there is no active appeal before the Board) were what prevented him from working. As such, the evidence fails to establish that he is unable to secure and follow substantially gainful employment, barring entitlement to TDIU at this time. Extraschedular Considerations The Board must determine whether the schedular evaluations are inadequate, thus 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 commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the 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. Id. 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. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of PTSD, but the medical evidence reflects that those manifestations are not present here. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected PTSD. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In conclusion, the preponderance of the evidence is against assigning a disability rating in excess of 50 percent for PTSD. As the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in his favor. See 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER An initial disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs