Citation Nr: 1300076	
Decision Date: 01/02/13    Archive Date: 01/11/13

DOCKET NO.  08-36 866	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel

INTRODUCTION

The Veteran served on active duty from July 1965 to April 1969, and from February to April 1991.  

This matter is on appeal from a December 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  

In February 2011, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge.  A copy of the hearing transcript is of record. 

In September 2011, the Board remanded the issue on appeal for additional development.  The requested development has been completed and the appeal has returned to the Board for further appellate consideration. 

The issues of entitlement to service connection for bilateral hearing loss and tinnitus were raised in October 2010, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  


FINDING OF FACT

The Veteran's PTSD has been characterized by irritability, flashbacks and insomnia; obsessional rituals, impaired impulse control, near-continuous panic or depression affecting ability to function independently, spatial disorientation, illogical or obscure speech, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships sufficient to warrant an increased rating has not been shown.




CONCLUSION OF LAW

The criteria for a rating in excess of 50 percent for an acquired psychiatric disorder, diagnosed as PTSD, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  
Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the claims files, 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).  First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records.  Further, the Veteran submitted statements in support of his claim. 

Additionally, VA examinations with respect to the issue on appeal were obtained in October 2007, April 2010 and December 2011.  38 C.F.R. § 3.159(c) (4).  To that end, when VA undertakes to provide a VA examination or, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the Board finds that the VA examinations obtained in this case is more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).  

The Veteran was also afforded a hearing before the undersigned hearing officer in February 2011.  This hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).   Notably, the Veteran was specifically asked about the nature and extent of his psychiatric symptoms and, when the Veteran asserted that his symptoms had recently worsened, he was offered the opportunity to undergo a new examination.  

Finally, this appeal was remanded in September 2011 for further development, and the Board is now satisfied there was substantial compliance with this Remand.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Specifically, the RO was instructed to afford the Veteran a VA examination to evaluate the current extent of his PTSD symptoms and to acquire the most recent VA treatment records.  In response, the Veteran was provided a new VA examination in December 2011 which the Board finds adequate for adjudication purposes, and VA treatment records through 2012 were incorporated in the Veteran's Virtual VA file.  After the completion of this development, the claim was readjudicated and the Veteran was sent a supplemental statement of the case in February 2012.  Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case.

Hence, no further notice or assistance 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).





II. Laws and Regulations 

General Rating Criteria

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).

However, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).


Psychiatric Rating criteria

Acquired psychiatric disorders are rated through the use of a general rating formula set forth in 38 C.F.R. § 4.130.  Under this formula, the Veteran is currently rated at 50 percent for his PTSD.  A 50 percent disability evaluation encompasses PTSD manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships; 

A 70 percent evaluation requires 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 worklike setting); and inability to establish and maintain effective relationships.  Id. 

A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name.  Id. 


III. Analysis

The Veteran seeks an increased rating in excess of 50 percent for his PTSD.  

After review of the evidence of record, the Board determines that a rating in excess of 50 percent is not warranted.  As an initial matter, it does not appear that the Veteran exhibits any physical symptoms resulting from his psychiatric such as the ones contemplated by the general rating formula.  

For example, at his VA examination in October 2007, the Veteran stated that he had been in regular treatment with VA mental health providers since he was previously examined in 2003.  Upon examination, he appeared anxious and "somewhat irritable."  However, his hygiene and appearance were adequate for the occasion.  While he appeared somewhat uncomfortable at the beginning of the evaluation, he eventually became more comfortable as the interview progressed.   His speech was normal in rate and content, and his thought process was logical, sequential and goal directed.  No delusions were observed, nor was there any evidence of a thought disorder.  

The Veteran also denied any homicidal ideation, was oriented in all aspects and demonstrated adequate memory and logic, based on his ability to remember the last three presidents and to interpret certain figures of speech.  Also, his insight and judgment appeared to be good.  

At his next VA examination in April 2010, the Veteran stated that he continued to be treated the PTSD clinical team at his local VA medical center, and that he had been taking antidepressants to control his symptoms for several years.  He explained that his symptoms consisted of intrusive recollections of Vietnam on a regular basis, and that he slept on an average of 4 hours per night.  He also found himself easily startled and quick to anger, especially in crowds.  

Upon examination, he appeared appropriately dressed and groomed, and was alert and oriented in all spheres, and his affect was normal.  His thought process appeared rational and focused and his speech was observed to be normal in all respects.  He was cooperative during the examination, and displayed no evidence of impairment in thought processes or communication.  He denied any homicidal or suicidal ideation, as well as any obsessive or compulsive tendencies.  

At his most recent VA examination in December 2011, the Veteran stated that he still took his antidepressant medication, but was constantly tired and that he "can't stand" people touching him in crowded areas.  He also mentioned a number of episodes where he as easily angered and that he does experience some flashbacks from Vietnam.

Upon examination, the Veteran appeared generally alert, and his grooming and hygiene was observed to be adequate.  He was generally alert and responsive, although he appeared tense throughout the interview.  His speech was normal in rate and tone, and was "relevant and coherent."  While he stated that he ruminates on the issue of death, he denied any specific suicidal or homicidal ideation.  No hallucinations or delusions were observed, and his thought processes were generally logical and sequential.  While he stated that he checks his doors at night, he displayed no evidence of obsessive or compulsive symptomatology.  

In addition to the VA examinations, none of the treatment notes associated with outpatient mental health evaluations from 2007 to 2012 indicate the presence of physical manifestations.  For example, a treatment note from January 2008 described him as alert, oriented and casually groomed, although he displayed an angry affect.  

However, such symptoms during the remainder of the appeal period were milder.  For example, by September 2008, he appeared less guarded and his affect was less angry.  Such symptoms were also relatively constant throughout 2009, as treatment notes from March, September and December of that year consistently noted that he was alert, casually groomed and less guarded.  His thought process was organized and without hallucinations or delusions.  In more recent mental health evaluations in November 2010 and March 2011, he again appeared alert, oriented and casually groomed.  

Therefore, based on the VA examinations, as well as the numerous mental health treatment notes of record, the evidence does not reflect physical manifestations related to his PTSD such as suicidal ideation, obsessional rituals which interfere with routine activities, near-continuous panic or depression affecting ability to function appropriately and effectively, spatial disorientation, intermittent or illogical speech or neglect of personal appearance and hygiene. 

Although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment."  Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002).  

As such, the Board has also considered the extent to which there are other indications of occupational and social impairment that may cause deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood based on other factors, to include social and occupational inadaptability.  

In this case, the Veteran's inability to establish interpersonal relationships in a social and occupational environment, such as difficulty in adapting to stressful circumstances, the inability to establish and maintain effective relationships and impaired impulse control are his most prominent symptoms.  Nevertheless, these symptoms are not so prominent so as to warrant a rating in excess of the currently assigned 50 percent rating.  

For example, at his October 2007 VA examination, the Veteran stated that he had been employed until he was fired from his job a month earlier.  However, it does not appear that he lost his job due to occupational inadaptability, but for other work-specific reasons.  Moreover, although he was unemployed at the time of the VA examination, he was clearly motivated to work again, as he stated that he was looking for new employment.  

The Veteran also stated that he was "almost entirely isolated" from others, including his children.  He also recalled an incident where he almost engaged in an altercation with a vendor at a local mall.  Nevertheless, he has been married for the previous 12 years, and felt that she is "very supportive" of him.  While he did not have any friends locally, he stayed in regular contact with a friend who he knew from Vietnam.  

In a January 2008 letter, the Veteran stated that he felt that he was "on the defensive" both at work and with his family.  He added that he is unable to get along with others, and "doesn't want to be bothered."  His spouse provided a statement that same month that the Veteran had been much less intimate with her, that he is "always ready for a fight," and that he sleeps often during the day.  

However, the evidence since that time indicates that these symptoms have improved a great deal since that time.  For example, at his VA examination in April 2010, he again had difficulty being around other people, including his children.  Even so, he still keeps in touch with his friend from Vietnam and is married appeared steady, despite some internal conflict.
  
Significantly, the Veteran has been employed as a clerk for VA since 2008.  Although he admitted having trouble getting along with coworkers, he denied any decreased productivity or absenteeism due to his psychiatric symptoms.  He also stated that he has a strong work ethic, and it appears that he takes pride in his work.  

The fact that his new employment has had a positive effect on his psychological well-being is reflected in the mental health treatment he has received since 2008.  For example, in March 2008, he stated that he "feels much better" after beginning his new job.  Moreover, a September 2008 mental health evaluation stated that his mood was stable and his relationship with his wife was good.  He also mentioned that he had traveled out of state to see his son on a few occasions.  

Significantly, throughout 2009, the Veteran repeatedly stated that his employment at VA had been a "positive experience" for him, and that it had stabilized his mood.  He also noted in December 2009 that his daughter joined him for Thanksgiving dinner.  In 2010, he continued to be employed at VA and, according to a March 2010 treatment note, was considered for a promotion.   Although he apparently was not selected for this promotion (which disappointed him), it nevertheless indicates that he is steadfast in his work.  Indeed, he stated in June 2010 that he does his job well, and more recent mental health evaluations, such as one in August 2011, indicate that he has taken on more responsibility.  

Given his apparently successful employment with VA since 2008, in conjunction with his improved social functioning with his children and spouse, the Board concludes that his social and occupational functioning is not so severe as to warrant an increased rating.  While he does have some interpersonal difficulties, and has a history of short temper, these symptoms appear to be well controlled. 

In addition to these symptoms, the Board has also considered the Veteran's Global Assessment of Functioning (GAF) score.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)).

In this case, the Veteran's GAF scores have ranged anywhere from 50 (in January 2008) to 65 (on a number of occasions).  A GAF of 41-50 would indicate "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), while a GAF of 51-60 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).  By comparison, scores ranging from 61-70 reflect 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 generally functioning pretty well, has some meaningful interpersonal relationships.

Based on the symptoms observed by the VA examiners and the mental health professionals, it would appear that a GAF score in the range of 61-70 would be too high, and that scores in the range of 51-60 are more consistent with his symptoms.  Specifically, given the Veteran's occupational performance, his difficulties are best described as "moderate."  However, the Board does not consider a GAF score in the range of 51-60 to be sufficient to warrant the next-higher 70 percent rating, as the criteria for a 70 percent rating are clearly more "severe" than "moderate."  

The Board has also considered the Veteran's statements, as well as the statements by his spouse, asserting that his PTSD is worse than the rating he currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  In this regard, the Board specifically points out that it has addressed the relevant statements he has made regarding his psychiatric disability.  However, he is not competent to identify a specific level of disability for either disability according to the appropriate diagnostic codes.

Moreover, such competent evidence concerning the nature and extent of the Veteran's psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.

The Board also finds that a referral for an extraschedular evaluation, which is a component of a claim for an increased rating, is not warranted.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  In this regard, the Court of Appeals for Veteran's Claims has clarified the analytical steps necessary to determine whether referral for such consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.

In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above.  Specifically, the symptoms related to his PTSD were applied to the applicable rating criteria, general counsel opinions, and case law.  Although the diagnostic codes in this case allow for higher ratings, the Board fully explained why the higher ratings were not warranted. 

Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted.  See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence that he is unemployable due to his service-connected disabilities.  In fact, as was mentioned above, he has been employed steadily since 2008.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied.


ORDER

An increased disability rating in excess of 50 percent for an acquired psychiatric disorder, diagnosed as PTSD, is denied.  



____________________________________________
C. R. KAMMEL
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs