Citation Nr: 1126958 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 06-09 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an evaluation in excess of 70 percent from November 8, 2001 to January 22, 2005 for service connected PTSD. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The Veteran had active service from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In October 2009, the Veteran appeared via video conference before the undersigned and provided testimony regarding his claim. A transcript of the hearing has been associated with the claims file. This matter was remanded in January 2010 for additional development. All development has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's PTSD symptoms did not cause total occupational and social impairment from November 8, 2001 to January 22, 2005. CONCLUSION OF LAW The criteria for a total rating from November 8, 2001 to January 22, 2005 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 3.321(b), 4.130, Diagnostic Code (DC) 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (as in this case). Id. at 126. The Veteran's PTSD is assigned a 70 percent rating under Diagnostic Code (DC) 9411 from November 8, 2001 to January 22, 2005. See 38 C.F.R. § 4.132. Under DC 9411, a 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; 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 evaluation is warranted where there is 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. Id. The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. 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). 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). GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family and is unable to work). Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating mental disorders, the frequency, severity, and duration of psychiatric symptoms as well as the length of remissions and the capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). The evaluation must be based on all evidence of record bearing on occupational and social impairment rather than solely on the examiner's assessment at the time of the examination. Id. Further, when evaluating the level of disability, the extent of social impairment is considered, but the rating cannot be based solely on social impairment. 38 C.F.R. § 4.126(b). The Board observes that the words "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. As a general matter, lay statements are considered competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). VA treatment records dated in 1998 and 1999 show diagnosis of depression and major depression. Records indicate that he was working in December 1998. May 2000 treatment records indicate that his major depression was in remission; however, he noted anger issues when frustrated. A GAF of 61 was assigned. In November 2001, records note that he was working in the fishing industry. He was mildly depressed. He had no other symptoms of an acquired psychiatric disorder. He was diagnosed with mixed substance dependence and it was noted to rule out substance induced mood disorder versus depression. A GAF of 65 was assigned. Private treatment records show that the Veteran entered a rehabilitation program from January to March 2002 to help with his polysubstance dependence. Records dated March 2002 note complaints of nightmares, intrusive thoughts, and pervasive feelings of guilt. He reported incidents that occurred in Vietnam. He said that he is emotionally numb and unable to express loving feelings. He noted having angry outbursts and memory and concentration difficulties. The assessment was opioid dependency in remission and suspected mental disorder. Another March 2002 record shows similar symptoms, and notes that he previously worked for himself in the fishing industry. At the time of his appointments, he was in federal guardianship and unemployed. The assessment was depression and to rule out PTSD. A GAF of 60, with moderate symptoms, was assigned. June 2002 VA treatment records show depressed mood and that he cried with slight provocation. No other symptoms of an acquired psychiatric disorder were noted. The diagnosis was major depression, opiate dependence and cocaine abuse. A GAF of 45 was assigned. Records show that he was in jail from April 2003 until June 2004. Prison treatment records show diagnosis of chronic, recurring, moderate PTSD in October 2003. In a July 2004 statement, the Veteran said that he is detached from others, avoids intimacy and love, avoids movies dealing with wars, isolates himself, and is unable to participate in activities such as sports. He attributed his alcohol and drug abuse to Vietnam as well as his anger issues and concentration difficulties. He also noted memory problems, startle response, trouble sleeping, and an inability to work with others. In July 2004, the Veteran had a VA examination. The examiner reviewed the claims file and noted the various past diagnosis, treatment, and imprisonment. The Veteran reported nightmares, intrusive thoughts, and pervasive feelings of guilt. He described himself as emotionally numb, unable to express feelings, prone to angry outbursts and as having memory and concentration difficulties. His symptoms have been present since 1968 and have not resolved since becoming drug and alcohol free. Symptoms included passive suicidal ideation with no active plan and subjective sense of inability to recall traumatic events in Vietnam. The examiner stated that the PTSD test results were high. He believed that the Veteran's score and overall symptoms have been magnified by his prolonged drug and alcohol use. The Veteran said his symptoms prior to drug and alcohol abuse included depression, poor sleep, startle response, and intrusive thoughts. The examiner stated that he likely had PTSD prior to using drugs and alcohol and that he likely began using drugs and alcohol to cope with his negative feelings. His prolonged substance abuse led to a life filled with occupational and social failure. The examiner believed that the drug and alcohol abuse was the main cause of his disability but that he qualified for a diagnosis of PTSD. The diagnosis included polysubstance dependence in remission, major depressive disorder secondary to prolonged polysubstance abuse and PTSD. A GAF of 45 was assigned. An October 2004 note states that the Veteran was emotional and tearful with continued sleep problems, including nightmares about Vietnam. Per his probation requirements, he was working but he said he works alone because of anger and irritability issues. His mood was noted as depressed. In his November 2004 notice of disagreement, the Veteran reported concentration problems, short term memory, uncontrollable anger, inability to focus on tasks, unconscious suicidal acts, suicidal and homicidal ideation, feelings of intense sadness and weepiness, panic attacks, intrusive thoughts, nightmares, and intimacy problems. In November 2004, the Veteran was less weepy. His sleep had improved but he reported depressed mood. His memory was noted as good. December 2004 and January 2005 mental health notes indicate that the Veteran was less depressed and denied symptoms such as suicidal and homicidal ideation, hallucinations, and war-related nightmares. His memory was noted as good. January 2005 VA treatment records indicate that the Veteran was working in construction. Other records, including records from his substance abuse rehabilitation program and prison have been obtained and reviewed. Unfortunately, after reviewing all of the evidence, the Board finds that it does not support the assignment of a total rating between November 8, 2001 and January 22, 2005. Overall, his symptoms did not cause total occupational and social impairment due to such symptoms as (for example): 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 evidence shows that he worked in the fishing industry prior to incarceration and per the 2004 and 2005 VA treatment records, he returned to work upon release. While the Veteran's November 2004 notice of disagreement reports symptoms as described in the criteria for the assignment of a 100 percent rating, his treatment records fail to show that he reported such symptoms to his mental health providers, providing highly probative evidence against this claim which the Board finds outweigh his current recollections. None of his treatment records show that he reported self-destructive behavior as described in his November 2004 statement. In fact, treatment records generally indicate that the Veteran was pleasant and cooperative and that he exhibited appropriate behavior, normal to weepy affect, depressed mood, goal directed thought process, good memory, and good insight and judgment, despite his assertions to the contrary. For the most part, he has denied suicidal thoughts and homicidal ideation. Consequently, the Board finds that the clinical findings do not demonstrate total occupational and social impairment due to PTSD. In this case, the Board gives the clinical findings more probative weight than the Veteran's reported symptoms in his November 2004 notice of disagreement because he failed to report such symptoms to providers during subsequent mental health appointments. Thus, the Board finds that his lay statement has a lesser probative value. Overall, the Board finds that the evidence fails to show that the severity of the Veteran's PTSD warrants an initial rating of 100 percent. His symptoms do not support a finding that his PTSD rendered him completely social and occupationally impaired between November 8, 2001 and January 22, 2005. In fact, it is important for the Veteran to understand that the medical evidence does not clearly support the 70% rating, providing evidence that does not indicate a 70% evaluation is warranted, let alone a 100% evaluation. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. 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 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. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints regarding the effects of his service-connected PTSD on his activities of work and daily living. In the Board's opinion, all aspects of the Veteran's PTSD impairment are adequately encompassed in the assigned 70 percent schedular rating. The Board finds no aspects of his PTSD disability not addressed in the schedular criteria. Moreover, while the Board, at this time, does not doubt the sincerity of the Veteran's current beliefs, the evidence (as cited above) contains some inconsistencies that diminish the reliability of the Veteran's current recollections. Based on the Veteran's conflicting statements, the Board finds that the Veteran is not a reiaable historian. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." As the assigned schedular evaluation is adequate, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). The Board further observes that there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the service- connected PTSD disability at issue, which would take the Veteran's case outside the norm to warrant an extraschedular rating. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). In sum, the criteria for a total rating from November 8, 2001 to January 22, 2005 have not been met. The appeal is denied. The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, 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 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that 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. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records, private treatment records, and treatment records from the federal prison. The Veteran submitted lay statements and was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. He was afforded a VA medical examination in July 2004. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a rating in excess of 70 percent for service-connected PTSD from November 8, 2001 to January 22, 2005 is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs