Citation Nr: 1111663 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 07-24 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO), which continued the Veteran's 50 percent rating, effective April 1, 2007. The Veteran testified at a Video Conference hearing before the undersigned Acting Veterans Law Judge in April 2009. A transcript of the hearing is associated with the claims file. During the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. The Board previously remanded the issue in November 2008 and September 2009 for further development. The mandates of those remands have been followed and the issue is ready for adjudication. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Veteran has been granted 100 percent disability ratings for periods of hospitalization between January 2007 and March 2007 and from July 2007 and September 2007. Accordingly, these periods of time will not be considered for an increased rating in the analysis that follows. FINDINGS OF FACT 1. Between April 1, 2007 and April 14, 2010, the Veteran's PTSD has been characterized by occupational and social impairment with reduced reliability and productivity due to symptoms including isolation, exaggerated startle response, avoidance, interrupted sleep, nightmares and irritability. 2. From April 15, 2010, the Veteran's PTSD has been characterized by occupational and social impairment with deficiencies in most areas due to depression affecting the ability to function independently, appropriately and effectively and difficulty in adapting to stressful circumstances. CONCLUSIONS OF LAW 1. Before April 15, 2010, the criteria for an 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). 2. From April 15, 2010, the criteria for an evaluation of 70 percent, but no higher, for service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 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 about the 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. 38 C.F.R. § 3.159(b)(1). These notice requirements apply to all five elements of a service connection claim, including disability ratings and effective dates. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). This notice must be provided prior to the initial decision on a claim for VA benefits. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by a subsequent content-complying notice and readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). In this case, March 2007 VA hospital records were treated as an informal claim on the initiative of the RO, which proceeded to reevaluate the Veteran's disability on basis of these new records in the March 2007 rating decision on appeal. Therefore, the Veteran did not receive a preadjudication VCAA letter. See 38 C.F.R. § 3.157. However, after the Veteran submitted an April 2007 notice of disagreement, he received a notice letter in October 2009 that did properly inform him of the information and evidence needed to substantiate his claims, the division of responsibility between the Veteran and the VA for obtaining this evidence, and how disability ratings and effective dates are established. The issue was readjudicated in June 2010. The Board concludes that the duty to notify has been met. The Board is not aware of the existence of additional relevant evidence in connection with the Veteran's claims that VA has not sought. VA and private treatment records, VA examination reports, and statements from the Veteran and his representative have been associated with the record. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. 38 C.F.R. § 3.103. Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations include: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran is assigned a 50 percent evaluation for his PTSD. He contends that he is entitled to a higher disability rating. The Veteran's PTSD is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 50 percent rating is warranted 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 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. 38 C.F.R. § 4.130 (2010). A 70 percent rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; 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. Id. One factor for consideration in evaluating mental disorders is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A GAF score of 61 to 70 reflects 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 home) but generally functioning pretty well with some meaningful interpersonal relationships. A score of 51 to 60 reflects 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). Factual Background Procedurally, the Veteran was initially granted service connection with a noncompensable disability evaluation for PTSD in April 1998. In a March 2002 rating decision, the Veteran's disability rating was increased to 30 percent and his disability rating was increased again in January 2004 to 50 percent disabling. In a March 2007 rating decision, the Veteran was given a temporary evaluation of 100 percent for hospitalization and his 50 percent disability rating was continued for the period thereafter, effective April 1, 2007. A March 2007 VA medical center mental health treatment note reported that the Veteran described symptoms to include frequent nightmares approximately 6-8 times a month as well as intrusive memories. The Veteran avoided war-related news and was easily startled by loud noises. He reported that his mood was improving and that he was no longer irritable towards his wife after an inpatient period at the VA medical center. On mental status examination the Veteran was found to have intact, fluent, spontaneous speech with normal rate and volume. The examiner found the Veteran's affect to be slightly constricted. His thought process was linear and logical. It was noted that the Veteran had good insight and judgment. The Veteran denied suicidal and homicidal ideation, auditory or visual hallucinations, paranoia or delusions. He reported a good mood. A GAF score of 60 was provided. A mental health VA medical center treatment note dated in May 2007 says that the Veteran reported stability in his mood and PTSD symptoms and that he had worsening nightmares if he missed several days of Paxil. The Veteran described his mood as "not bad." His affect was in full range and thought process was linear and logical. The Veteran denied suicidal or homicidal ideation as well as hallucinations. It was noted that the Veteran did not have paranoia or delusions and had good insight and judgment. A January 2008 mental health treatment note reported that the Veteran had intact speech with normal rate and volume, full affect, linear and logical thought process and good insight and judgment. The Veteran denied suicidal or homicidal ideation, hallucinations, paranoia or hallucinations. He reported that he was in a very good mood. In September 2007, the Veteran appeared for a decision review officer (DRO) hearing. During his hearing the Veteran explained that he felt his symptoms warranted a disability evaluation in excess of 50 percent. He explained that he had chronic nightmares about his combat in Vietnam which disturbed his sleep and changed his attitude in general. A May 2008 mental health treatment note described the Veteran's reports of a stable mood. He was found to have normal speech and full affect. He was noted as having good insight and judgment and he denied suicidal and homicidal ideation as well as paranoia and delusions. A GAF score of 70 was assigned. An October 2008 mental health treatment note reported that the Veteran felt down but it was unclear if there was a trigger for his change in mood. The Veteran reported disrupted sleep and stress at work. It was noted that one possible cause of his change of mood was a delay in retirement. On mental status examination the Veteran had normal speech, a full range of affect and a linear and logical thought process. There was no suicidal or homicidal ideation, hallucinations, paranoia or delusions. It was noted that the Veteran had a history of PTSD with some adjustment-related depressed mood likely due to recent economic difficulties. The record includes an April 2009 letter written jointly by the Veteran's social worker D.C., Dr. W.C., PhD. And D.G., M. Ed. The letter reported that the Veteran's condition had deteriorated in the last year due to his medical health and possible retirement due to low stress tolerance. It was noted that among the Veteran's psychosocial and environmental problems (Axis IV diagnosis) were work conflicts and Vietnam residuals. In April 2009, the Veteran testified before the undersigned Acting Veteran's Law Judge. During his hearing, the Veteran stated that he had experienced severe panic attacks for which he took medication and still experienced episodes that would startle him out of sleep about once a month. The Veteran additionally stated that he was regularly depressed and that he avoided crowds as they made him nervous. The Veteran stated that he was on medication to sleep but still experienced nightmares. He noted that his memory was getting worse and that he experienced short-term memory loss. When asked how his PTSD symptoms affected his work, the Veteran stated that he had trouble working on the computer system in his office and that he found it difficult to remember all of the components of the computer system. He felt this was related to his memory loss as he could not remember all of the requisite steps to complete tasks. The Veteran added that he experienced unprovoked irritability since Vietnam. He stated that he had missed a few days of work due to his PTSD symptoms approximately twice a month and that he felt panic attacks coming on during the day but only experienced panic attacks at night, about once or twice a month. The Veteran stated that lately he did not socialize and primarily stayed at home with his wife. A May 2009 mental health treatment record noted that the Veteran had been doing well except for a lack of motivation. Stressors were noted as financial loss. The Veteran reported that he was in a good mood and that he had a full affect and linear and logical thought process. There was normal speech and the Veteran denied suicidal or homicidal ideation, hallucinations, paranoia and delusions. A GAF score of 70 was provided. In a September 2009 mental health treatment note, the Veteran reported a worsening of his mood with increased irritability according to his wife. Speech was normal and affect was full range with a linear and logical thought process. There was good insight and judgment and suicidal and homicidal ideation were denied as were paranoia and delusions. A GAF score of 65 was provided. In April 2010, the Veteran was afforded a VA examination in order to determine the nature and severity of his PTSD. During his examination, the Veteran reported that he had some difficulty over the past few years at work due to some difficulty learning how to work with computers. He stated that his most significant complaint was that his mood was worse according to his wife. He explained that he experienced weekly PTSD symptoms to include nightmares but he believed these symptoms had remained relatively stable. The Veteran additionally reported daily depressed mood and isolation with limited interest in activities. It was noted that the Veteran was married with no change in relationship since his last (January 2004) examination. The Veteran reported that his father-in-law had moved into his house which was a new stressor and he endorsed quality relationships with his family. The examiner noted that the extent of the Veteran's social impairment and work impairment had increased during the interval between examinations; the Veteran reported continued isolation from family and friends in addition to significant declines in work performance which coincided in part with the Veteran's mood. The Veteran asserted his belief that at least some of the impact on his work productivity might be due to his mental disorder. On mental status examination it was noted that the Veteran's mood was depressed and that his affect was consistent with his mood. Speech was of a normal rate, rhythm and tone. Thought process was linear and goal-directed. The Veteran denied any suicidal or homicidal ideation or intent. The examiner reported that the Veteran's symptoms included social isolation, poor concentration at work and depressed mood. PTSD symptoms were noted as recurring and distressing nightmares, isolation, feelings of detachment, irritability and hyper-startle response. The examiner explained that, regarding the Veteran's social impairment, there had been significant social and work impairment which appeared to have increased. The examiner added that, despite remaining employed, the Veteran reported significant declines at work which, according to the examiner, appeared to coincide not only with changes in the Veteran's job requirements, but also with the status of his mood. The examiner additionally noted that some, but not all of the Veteran's depression symptoms could be accounted for by his PTSD and that it appeared that the Veteran had major depressive disorder which was at least as likely as not due to his PTSD. The examiner summarized that the Veteran met the DSM-IV criteria for PTSD and major depressive disorder and that he reported that his most distressing symptom was poor mood. The examiner noted that there appeared to be clear indicators that the Veteran's mental disorders had an impact on his daily functioning. A GAF score of 51 was provided. Analysis Based on a review of the evidence of record, the Board finds that an evaluation in excess of 50 percent for service-connected PTSD is not warranted prior to April 15, 2010. Given the evidence of record, the Board finds that, prior to April 15, 2010, for the periods in which the Veteran was not in receipt of a temporary total evaluation, the Veteran's disability picture does not most nearly approximate the level of social and occupational impairment contemplated by the next-higher 70 percent evaluation. Indeed, the record does not demonstrate such as circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week or difficulty in understanding complex commands, impaired judgment or impaired abstract thinking. Additionally, at no time has the record demonstrated suicidal ideation, near-continuous panic or depression, impaired impulse control or neglect of personal appearance. The Veteran has been consistently described as having good judgment and appropriate thought content and insight. There is little discussion in the record as to his social interaction with people outside of his family, but the record clearly shows that the Veteran has maintained a good relationship with his children and his wife. While the Board notes the Veteran's contentions that he has experienced memory loss due to his PTSD, the Board further notes that, when taken as a whole for this period, the Veteran's symptoms most closely approximate the symptoms described in the 50 percent rating. Further, the Board is cognizant of the Veteran's widely ranging global assessment of functioning scores for this period. GAF scores between 45 in March 2007 upon discharge for inpatient treatment and 70 in a May 2009 mental health treatment are shown. As stated above, GAF scores between 41 and 50 reflect serious symptoms; scores between 51 and 60 reflect moderate symptoms and scores between 61 and 70 demonstrate mild symptoms. In this case, the Board notes that the Veteran's GAF scores have primarily reflected moderate PTSD symptoms to include the Veteran's GAF score of 65 provided in a September 2009. In fact, shortly after the March 2007 hospital discharge report with the GAF score of 45, another March 2007 treatment record assigned a GAF score of 60, and no lower score was recorded until April 2010. These scores are appropriately reflected by the 50 percent disability rating assigned to the Veteran for this period. While some social and occupational impairment is conceded, the extent of such impairment is properly reflected by the 50 percent evaluation already in effect throughout the appeal period in question. In short, the Board finds that between April 1, 2007 and April 15, 2010, the Veteran' symptomatology included depression, irritability, impaired sleep, impaired social and occupational functioning, flashbacks, intrusive thoughts, increased startle response, hypervigilance and a restricted affect. He has been shown to have effective and meaningful relationships with his family and the evidence has not shown that the Veteran's PTSD precluded him from being employed. No other evidence shows that the PTSD has resulted in occupational impairment beyond that already contemplated by the rating presently in effect. Overall, then, prior to April 15, 2010, the disability picture most closely approximated a 50 percent rating under Diagnostic Code 9411. Accordingly, the Board finds that an evaluation in excess of 50 percent for service-connected PTSD must be denied on the evidence of record for this period. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Veteran's April 15, 2010 VA examination, however, reflects an increase in the severity of the Veteran's psychiatric symptoms and a higher 70 percent disability rating is therefore warranted. The Veteran appears to be increasingly impaired at work by his PTSD. Increased impairment in his social and work function is attributed to his PTSD and the evidence demonstrates near continuous depression which has been attributed to PTSD. Finally, the Board notes that between May of 2009 and the Veteran's April 2010 VA examination, his global assessment of functioning score declined dramatically from 65 in September 2009 to 51 in April 2010. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds that, from April 15, 2010, a 70 percent disability rating is most appropriate. The Board additionally finds, however, that a higher 100 percent rating is not warranted as the evidence has shown difficulty in social and occupational settings but has in no way demonstrated the total occupational and social impairment described in the criteria for a 100 percent rating. Extraschedular Considerations Consideration has been given regarding whether the schedular evaluation is 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); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extra-schedular rating is in order when there is such an exceptional or unusual disability picture as to 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 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 evidence of record does not reflect any factor which takes the Veteran outside of the norm, or which presents an exceptional case where the currently assigned staged ratings are found to be inadequate. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Notably, the evidence indicates that the Veteran is gainfully employed. He does not experience any symptoms not contemplated by the rating criteria. Accordingly, the Board determines that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not meet. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU is not raised by the record as the evidence of record fails to show that the Veteran is unemployable. In fact, he currently remains employed. Based on the above, the Board finds that, between April 1, 2007 and April 14, 2010, an increased rating for PTSD is not warranted and the Veteran's claim for an increased rating for this period must therefore be denied. However, from April 15, 2010, entitlement to an increased disability rating of 70 percent is demonstrated. ORDER Entitlement to a rating in excess of 50 percent for PTSD prior to April 15, 2010 is denied. Entitlement to rating of 70 percent for PTSD from April 15, 2010, is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs