Citation Nr: 1237653 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 05-34 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating greater than 50 percent for posttraumatic stress disorder (PTSD) prior to July 31, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (Board) from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which granted service connection for PTSD and assigned an initial 50 percent rating. During the pendency of the appeal an October 2007 rating decision was issued by the RO increasing the rating to 70 percent effective July 31, 2007. As this was not a complete grant of benefits, the appeal came before the Board. In an April 2009 decision the Board denied an initial rating greater than 50 percent prior to July 31, 2007, and greater than 70 percent beginning July 31, 2007. In an April 2011 memorandum decision the Court of Appeals for Veterans Claims (Court) vacated in part the April 2009 Board decision as to the issue of an initial rating greater than 50 percent prior to July 31, 2007. In a February 2012 decision the Board again denied the claim. In June 2012 the Court ordered a Joint Motion Remand vacating the February 2012 Board decision. The issue of a total disability rating for compensation on the basis of individual unemployability (TDIU) is not currently before the Board. In March 2008 the RO granted TDIU beginning July 31, 2007. In February 2012 the Board remanded the issue of TDIU prior to July 31, 2007 to the RO for adjudication. FINDING OF FACT The Veteran's PTSD has most nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for PTSD prior to July 31, 2007 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Code 9411 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). An August 2004 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A March 2006 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's available service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board has reviewed the Veteran's "Virtual VA" file. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in December 2007. 38 C.F.R. § 3.159 (c) (2). Multiple VA examinations were conducted in August 2004, November 2004, December 2005, and July 2007; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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). The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. Psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, 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 effective work and social relationships. A disability rating of 70 percent is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is assigned when the condition results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The GAF (Global Assessment of Functioning) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). GAF scores between 41 and 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). GAF scores between 31-40 reflect some impairment in reality resting 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). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV, are to be considered. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, then the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Federal Circuit has embraced the CAVC's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Board has reviewed and considered all examination reports and VA treatment records, however only relevant evidence related to the next higher criteria for PTSD will be discussed. VA treatment records and evaluations demonstrate occupational and social impairment with deficiencies in most areas. At three separate outpatient treatment visits, in January, February and March 2004, the Veteran was noted to have a GAF score of 35, indicating major impairment. In January 2004 he reported suicidal ideation. In August 2004, a PTSD assessment was conducted which diagnosed the Veteran with chronic delayed severe PTSD. (emphasis added) He reported thoughts of being dead but no suicide attempts, and reported that he was worried about "going off." At a December 2005 VA examination the Veteran reported a history, and tendency, to be violent anytime he gets angry although he denied any violent altercations since 1995. He reported difficulty maintaining marriages due to anger problems, and difficulty maintaining employment due to poor control or understanding of his aggressive impulses. The Veteran admitted to suicidal ideation but reported no attempts. The examiner noted marked interference with social and occupational functioning due to difficulties with irritability and concentration, and exaggerated need for control. The examiner assigned a GAF score of 45. The examiner noted that it was unlikely that he is capable of working in close proximity with others on a full time basis. The examiner concluded that the Veteran was deeply alienated and that it is likely that he will have chronic difficulties with trust and close relationships. The July 31, 2007 VA examination is considered here even though it is outside the time period on appeal, by one day, as it provides information as to the Veteran's overall disability picture. At a July 31, 2007 VA examination the Veteran was found to have had an extreme level of social alienation, the Veteran's ability to function effectively is dramatically reduced due to his PTSD symptoms. It takes the Veteran substantial effort to maintain a rational state of mind and he is just now learning to function effectively. It is unlikely that the Veteran would be able to function effectively in a work environment at the current time due to his PTSD symptoms. His severely compromised social functioning makes it highly unlikely that the Veteran is currently capable of effective partnership/marriage and significantly limits his capacity for appropriate interaction in the workplace. The examiner assigned a GAF score of 45. The Veterans PTSD symptoms since the date of the claim more nearly approximate occupational and social impairment with deficiencies in most areas. The totality of the record reflects that the Veteran's PTSD related symptoms have remained fairly consistent since the grant of service connection. An initial rating of 70 percent, but no higher, for PTSD prior to July 31, 2007 is warranted. The Veteran's overall disability picture for PTSD does not approximate total occupational and social impairment. The Veteran's predominant symptoms are irritability, anger, violent thoughts and, isolation. However, the Veteran has consistently been able to act appropriately at all examinations, engage in activities of daily living and participate in treatment. He has been able to provide coherent statements to examiners and to the RO regarding his disabilities. While the examiners have noted him to be deeply alienated, he does visit with his daughter and is not completely socially isolated. As the Veteran's overall disability picture is not total occupational and social impairment, a higher 100 percent rating is not warranted. The assignment of different evaluations throughout the pendency of the Veteran's appeal has been considered. However, the evidence does not support staged evaluations. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred 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. The evidence demonstrates that the schedular criteria reasonably describes the Veteran's disability level and referral for consideration of an extraschedular evaluation is not warranted. ORDER An initial rating of 70 percent for posttraumatic stress disorder (PTSD) prior to July 31, 2007, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs