Citation Nr: 1234946 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 08-15 011 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to a disability rating in excess of 30 percent for post-traumatic stress disorder, (PTSD). REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his brother ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to June 1968, with six months of additional active service as well as National Guard service. He was awarded the Combat Infantry Badge, the Purple Heart Medal, and the Vietnam Campaign Medal, in addition to other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 RO decision. The Veteran and his brother presented sworn testimony in support of his appeal during a June 2011 hearing before the undersigned Veterans Law Judge. In June 2011, the Veteran withdrew a pending appeal for a TDIU. In October 2011, the Board remanded the appeal for an increased disability rating for PTSD, and dismissed the appeal for TDIU. The development requested upon remand having been completed, the matter has been returned to the Board for further appellate review. Claims for increased ratings for a residual scar of the right shoulder and erectile dysfunction have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ or RO). Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to June 30, 2011, the Veteran's PTSD was manifested by generally satisfactory functioning with little occupational impairment, some social impairment, flashbacks, nightmares, chronic sleep impairment, anxiety and depressed mood. 2. As of June 30, 2011, the Veteran's PTSD symptoms resulted in reduced reliability and productivity due to symptoms such as flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, depressed mood, anxiety, and chronic sleep impairment. CONCLUSIONS OF LAW 1. Prior to June 30, 2011, the criteria for a disability rating in excess of 30 percent for PTSD are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.125, 4.125, 4.130, Diagnostic Code 9411 (2011). 2. As of June 30, 2011, the evidence supports no more than a 50 percent disability rating for PTSD. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.125, 4.125, 4.130, Diagnostic Code 9411 (2011). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran contends his PTSD causes greater impairment than is reflected by the currently-assigned 30 percent disability rating. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Review of the claims file shows that the Veteran was given this information in a September 2006 letter, prior to the initial adjudication of the claim. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate with regard to the issue decided herein. The examination reports relied upon herein were predicated on a review of the claims folder and the relevant medical records contained therein; contain a description of the history of the disability at issue; and document and consider the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA medical records, service treatment records, and VA examination reports have been obtained and reviewed in support of the Veteran's claim. Specifically, the Veteran was afforded VA compensation examinations in 2006, 2009, and 2011. These VA examinations are adequate to adjudicate the claim as the examiners each conducted a thorough evaluation of the Veteran, opined as to the seventy of the Veteran's disability, and supported their opinions with relevant evidence that is found in the claims file. See 38 U.S.C.A. § 5103A(d) ; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). Additionally, the examination reports addressed applicable rating criteria. The Veteran and his representative have also presented written statements in support of his claim. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). In evaluating claims for increased ratings, the Board must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. Reasonable doubt as to the degree of disability 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). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Under the governing regulatory criteria, mental disorders are rated under a "General Rating Formula for Mental Disorders". 38 C.F.R. § 4.130. The pertinent provisions of the General Formula are as follows: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. [10 percent] Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). [30 percent] 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. [50 percent] 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. [70 percent] 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. [100 percent]. 38 C.F.R. § 4.130. The "such symptoms as" language of the diagnostic codes listed above means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Because this appeal has been ongoing for a lengthy period of time, and because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). Historically, service connection for PTSD was granted based upon a review of the Veteran's traumatic and highly-decorated wartime experiences, and medical evidence confirming a diagnosis of PTSD. A 30 percent disability rating was assigned effective in March 1998, reflecting the date of the Veteran's claim for the benefit. The current claim for an increase in the Veteran's disability rating was received in May 2006. In a "Medical History Form," completed in 2006, the Veteran reported being unemployed and having last worked as a grounds man in February 2006. On the same form he reported taking several prescription medications, but no psychotropic medication. During a June 2006 VA examination, the Veteran reported having started and stopped VA psychotherapy several times. He felt that his symptoms were better when he was not discussing his experiences. He was not taking any psychotropic medication. He also reported that although he had had a prior diagnosis of alcohol abuse, he had stopped drinking eight years earlier. He reported a sense of satisfaction for his ability to control his alcohol intake. During the examination, he was somewhat withdrawn and reticent about discussing himself with the examiner. He reported nightmares, and panic attacks when his nightmares awakened him. He reported little to no socialization, as he avoided his friends who were heavy drinkers. The examiner opined that the Veteran manifested symptoms of hyperarousal on an almost daily basis. He had social withdrawal as manifested by a lack of social contact outside of his family. He also had manifestations of hyperarousal by the fact that he carried a bayonet in his car should someone present a threat to him, although he did not sleep with a weapon at his side. The examiner assigned a diagnosis of chronic PTSD related to combat stress, and a Global Assessment of Functioning Score of 65. The examiner opined that the Veteran was employable in a loosely supervised situation with little contact with the public, although the examiner also noted that the Veteran had no skills which could be applied to such a situation, as he had left his previous job on account of knee problems, and that he would require services from vocational rehabilitation. The Veteran's PTSD was next evaluated during a VA examination in November 2009. The Veteran reported that he had four grown children, living on their own, and added that his oldest and youngest daughters lived with him. He stated that he was in a three year relationship, and reported that his mental health symptoms had no impact on his relationships with his girlfriend and children. In discussing his current symptoms, the Veteran described depressed mood, most often occurring when he thought of the loss of his mother and his marriage; recurrent images or thoughts, if triggered by war news or television shows; nightmares, occurring approximately every other night; flashbacks, occurring approximately every other day; and occasional anger and irritation, with no angry or violent acting out. The Veteran further described avoidant and hyperarousal symptoms, and indicated that he had limited social contact outside of his family. He further endorsed hypervigilence, but denied any auditory or visual hallucinations. He also denied any panic attacks. The Veteran's orientation, long-term memory, attention, and concentration were intact. The examiner opined that the Veteran was able to be employed from a psychiatric standpoint, and noted that the Veteran was currently maintaining part-time employment. The Axis I diagnoses following examination were PTSD and alcohol abuse, in full sustained remission, secondary to PTSD. The examiner commented that the Veteran had mild to moderate symptoms of PTSD. She opined that the Veteran experienced occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to his Axis I diagnoses. A GAF Score of 67 was assigned. She further noted that the Veteran was not currently receiving mental health treatment. The examiner commented that the Veteran's thought processes, communication, and social functioning were not impaired, although his employment was mildly impaired. In an April 2010 statement, the Veteran reported that he had been separated since January 2010. During the June 2011 hearing, the Veteran's representative indicated that, although he spent time with his family, the Veteran was limited to about 30 minutes with them before he could "just snap." The Veteran testified that he was having more nightmares and panic attacks. He indicated that he experienced approximately eight panic attacks a week, maybe more. He added that any loud noise upset him and he often lost his temper. The Veteran reported that he currently lived with his brother. He further testified that he talked to his friends, although he could not spend much time with them, approximately thirty minutes or less. The veteran's hearing testimony is deemed helpful to the Board and credible insofar as it comports with the medical evidence of record. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran initially sought mental health care for his PTSD symptoms in June 2011. His first intake assessment was conducted with a social worker, who recorded an extensive history and assigned a GAF score of 50. He explained that he had been having nightmares, cold sweats and waking up screaming. He reported that he isolated himself from other people and that he worked hard to avoid thinking about Vietnam. Approximately one week later, he had an initial meeting with a psychiatrist, who assigned a GAF score of 40 and prescribed psychotropic medication. Impaired social and occupational functioning was noted. The Veteran was deemed not at risk for suicide or homicide. One month later, in July 2011, the Veteran reported that he was doing well and he thought the medication was working. Another VA examination for purposes of compensation was conducted in December 2011. The examiner noted that the Veteran's eye contact was good and his behavior appropriate during the examination. There was no current suicidal or homicidal ideation. He was oriented to person, place, and time, and had the ability to maintain minimal personal and other basic activities of daily living. There was no evidence of memory loss or impairment and no obsessive or ritualistic behavior. There was no impairment in impulse control, but he had sleep impairment related to Vietnam nightmares. He was living independently in a home he owned with his brother and caring for his year-old grandson. The examiner assessed that his PTSD was chronic, continuing, and moderate. The examiner noted the prior diagnosis of alcohol abuse in remission and commented that he was not going to continue that diagnosis since the Veteran had not used alcohol in fourteen years. A GAF score of 55 was assigned. The examiner noted that the Veteran continued to have moderate symptoms of PTSD that cause him moderate difficulty in social functioning, and that while the Veteran had contact with some friends, at that time, he also continued to be bothered by chronic symptoms of PTSD. The examiner specified that the Veteran had occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, disturbances of motivation and mood, difficulty in establishing and maintain effective work and social relationships, depressed mood and anxiety and chronic sleep impairment. The examiner also opined that the Veteran would be employable in a setting in which the work is routine, supervision is loosely applied and contact with the public is minimal. VA mental health treatment reports dated during the first part of 2012 reflect that he continued to have monthly individual therapy sessions. These reports reflect that he continued to be afflicted with nightmares and intrusive thoughts about Vietnam, and continued to report problems with anger, irritability, and isolative tendencies. He reported experiencing difficulties with one daughter and with his brother, but maintaining good relationships with two daughters and a son. The assignment of a GAF score between 61 and 70 represents the assessments of mental health professionals that the Veteran has "some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships." A score between 51 and 60 represents the assessments of mental health professionals that the Veteran has "moderate symptoms or moderate difficulty in social, occupational, or school functioning." The GAF scores between 41 and 50 reflect "serious symptoms or any serious impairment in social, occupational, or school functioning." A score of 40 represents "some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, The American Psychiatric Association (1994), (DSM-IV). An analysis of the GAF scores reveals that in 2006 and 2009, VA examiners assigned scores of 67 and 65. In June 2011, he was assigned GAF scores of 40 and 50. Then in December 2011, after six months or so of pharmacological and therapeutic treatment, he was given a GAF score of 55. The Veteran has indicated a disinclination to discuss his feelings related to PTSD. It is clear, in reading the lay and medical evidence of record, that the Veteran's PTSD symptoms cause social impairment with reduced social contacts, isolative tendencies, depressed mood and anxiety, and chronic sleep impairment. The Veteran does function, however, maintaining a home he owns in part and shares with others, caring for his toddler grandson, which is a significant responsibility, and maintaining some family relationships. In sum, prior to June 2011, the evidence more nearly approximates the criteria for a 30 percent rating. There is no evidence of circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short-and long-term memory, impaired judgment, or impaired abstract thinking. As reflected during VA examinations in 2006 and 2009 and in outpatient treatment records, the Veteran was generally functioning satisfactorily but had a depressed mood, anxiety, suspiciousness, panic attacks and chronic sleep impairment. On balance, the Board finds that overall the evidence of record supports a disability rating of 50 percent beginning in June 2011, when he was assigned the GAF of 40 in connection with seeking mental health treatment. Although it would seem reasonable that his symptoms did not worsen overnight, the record simply does not show an increase in impairment prior to June 2011. His hearing testimony and demeanor in June 2011 would appear, from the layperson's perspective, to be consistent with this level of impairment, as well. It is difficult to identify significant occupational impairment related to PTSD in the record as it stands. The best evidence in this regard would appear to be the June 2011 examiner's assessment that the Veteran's PTSD would not preclude his working under favorable circumstances. However his social impairment is clearly outlined in the record, to include a greatly reduced social circle, reduced family relationships, and isolative tendencies. In this regard, the Board observes that while the Veteran does function, he lives a controlled life, avoiding many activities and has greatly limited the aspects of his life which would appear to cause him the most stress. The Veteran's symptomatology does not rise to the level of the symptoms provided as examples of occupational and social impairment with deficiencies in most areas as set forth in the General Rating Formula so as to warrant a higher 70 percent disability rating at any point during the lengthy appeal period. Mauerhan. A disability rating greater than 50 percent is not warranted, as his description of his daily life and functioning in no way rises to the level of the examples of symptomatology described in the regulatory rating criteria provided for a 70 percent disability rating, reflective of the inability to establish and maintain effective relationships, along with the absence of such symptoms as suicidal ideation, obsessional rituals, near-continuous panic or depression. Mauerhan. The GAF score of 40 represents a single instance and that during the same month of June 2011 he was also given a GAF score of 50, which indicates a somewhat higher level of overall functioning, as described above. Thus the evidence subsequent to June 2011 reflects greater impairment due to symptoms such as chronic sleep impairment related to nightmares, depressed mood, anxiety, and especially isolation. The June 2011 VA examiner identified that the Veteran was experiencing reduced reliability and productivity, as well as difficulty in establishing and maintaining effective relationships; all symptoms set forth as examples of the nature and level of symptomatology in the case of impairment at the 50 percent level. Prior to June 2011, the evidence of record does not establish this level of impairment, however. Thus, the preponderance of the evidence is against the assignment of an increased disability rating prior to June 2011. The evidence supports the assignment of a 50 percent disability rating as of June 30, 2011, when the Veteran's treating psychiatrist assigned a GAF score of 40. The preponderance of the evidence is against the assignment of a disability rating higher than 50 percent, however, in light of the Veteran's improvement after the initiation of treatment, as reflected in the higher GAF score of 55 assigned in December 2011. Extra-schedular consideration Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the rating schedule is sufficient. See 38 C.F.R. § 4.20, 4.27. For exceptional cases, VA has authorized the assignment of extraschedular ratings and provided the following guidance for awarding such ratings: 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, [C & P], 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. 38 C.F.R. § 3.321(b). As the Court recently explained in Thun, a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry." Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Anderson v. Shinseki, 22 Vet. App. 423 (2009). In this case, there is no indication that the schedular criteria fail to contemplate the Veteran's level of disability or symptomatology; as such there is no basis for referring this case for consideration of an extra-schedular rating. ORDER A disability rating in excess of 30 percent for PTSD is denied prior to June 30, 2011. A disability rating of 50 percent for PTSD is granted effective June 30, 2011. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs