Citation Nr: 1300089 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 06-33 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to August 26, 2011. 2. Entitlement to a rating in excess of 70 percent for PTSD since August 26, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a prior rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was previously presented to the Board in November 2008, and again in August 2011. On each occasion, it was remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2012, the Veteran was assigned a 70 percent rating for PTSD. Nevertheless, a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased rating remains in appellate status. Additionally, because this award was made effective only from August 26, 2011, subsequent to the filing of the increased rating claim, the issue on appeal has been separated into two distinct issues to reflect the time periods on appeal. FINDINGS OF FACT 1. Prior to August 26, 2011, PTSD resulted in anger management issues, irritability, and impulsive thoughts, without difficulty understanding complex tasks or short or long term memory impairment, resulting in no more than moderate impairment. 2. Since August 26, 2011, PTSD has been characterized by angry outbursts, a depressed mood, and some social isolation, without hallucinations, delusions, or other gross impairments in his thought processes resulting in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD prior to August 26, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.16, 4.130, Diagnostic Code (DC) 9411 (2012). 2. The criteria for a rating in excess of 70 percent for PTSD since August 26, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.16, 4.130, DC 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 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). While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. PTSD is rated under DC 9411 and utilizes the General Rating Formula for Mental Disorders, which provides a 50 percent rating where there is 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 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. A 70 percent rating 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation for a psychiatric disability is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). Upon receipt of his claim, the Veteran was afforded a VA psychiatric examination in April 2005. His claims file was reviewed in conjunction with his examination. He stated that during service, he served as a hospital corpsman. On one occasion, a bomb accidentally exploded on an aircraft carrier, killing and injuring many sailors, and he was flown to the scene to assist. He found the scene to be quite disturbing when he arrived to treat the injured. At the time of the examination, he was not currently employed, having retired from the railroad in 2002 due to a low back injury. He was married, with a history of multiple prior divorces, and had contact with his adult children and his mother. He denied any other significant social contact, however. He also reported a diminished interest in hobbies and other activities. Symptoms included anxiety, increased anger and irritability, and a depressed mood. He had a history of alcohol and drug abuse, but had been sober for many years. He had in the past been treated at his local VA medical center for his symptoms, and took anti-depressant medication. On objective evaluation, he was clean and neatly-dressed. His hygiene was good. His mood appeared anxious, moderately depressed, and worried, and his eye contact with the examiner was fleeting. His speech was logical and normal in rate, tone, and content. He denied any homicidal thoughts or plans. Some intermittent suicidal thoughts were reported, but he denied any intent to act on such thoughts. No psychotic symptoms were evident, and cognition was intact. The final impression was of PTSD and major depressive disorder, moderate, recurrent. A Global Assessment of Functioning (GAF) score of 55 was assigned. The GAF is a scale reflecting the subject's psychological, social, and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) (4th ed.). The Veteran was considered competent to manage his personal finances. Another VA psychiatric examination was afforded the Veteran in April 2007. His claims file was reviewed in conjunction with the examination. Current symptoms included depression, impaired anger control, poor sleep, and intrusive memories. He reported infrequent visits with VA for psychiatric treatment. On objective evaluation, the Veteran was clean and neat in appearance. He made good eye contact with the examiner, and gave appropriate responses to questions. His mood did not seem depressed, and stated he was experiencing less depression as compared to his prior examination. His speech was logical, and normal in rate and tone. No psychotic symptoms were present, and he denied any suicidal or homicidal thoughts or plans. Memory, thought processes, insight, and judgment were all within normal limits. He was involved in a few recreational activities, such as fishing. He and his wife visited with his extended family and socialized on occasion. Angry outbursts continued to be a problem, but he denied panic attacks. Overall, the examiner found moderate improvement in the Veteran's PTSD symptoms as compared to the prior April 2005 VA examination. A diagnosis of PTSD, mild to moderate, was confirmed, and a GAF score of 58 was assigned. The Veteran was considered competent to manage his finances. In April 2008, a written statement was received from the Veteran's spouse. She stated that his PTSD resulted in explosive outbursts, social isolation, and hypervigilance. She reported observing similar symptoms in a December 2008 statement. Most recently, a VA psychiatric examination was afforded the Veteran in August 2011. His claims file was reviewed in conjunction with the examination. He continued to report difficulty controlling his temper, and panic attacks which occurred weekly or less frequently. Other symptoms included irritability, intrusive thoughts, hypervigilance, social isolation, poor sleep, a restricted affect, and a loss of interest in formerly-pleasurable activities. He remained married, and saw members of his extended family on a regular basis. On objective evaluation, the Veteran was alert and fully-oriented, and neat and clean in his personal appearance, with adequate hygiene. His speech was normal in rate and tone, and his thought processes, insight, and judgment were also within normal limits. He reported some mild memory loss but did not exhibit any delusions or hallucinations, or any indications of detachment from reality. No obsessive rituals or compulsive behaviors were noted. Occasional suicidal thoughts were reported, although he denied any active intent or plans. The examiner suggested the Veteran's PTSD symptoms remained relatively stable, but his anger levels continued to increase, likely due to aging. A GAF score of 65 was assigned. A GAF of 61-70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. See DSM-IV. The Veteran has also received intermittent VA outpatient treatment during the pendency of this appeal. He has consistently reported difficulty controlling his anger and an explosive temper, some social isolation, poor sleep, and a depressed mood. He has displayed normal cognitive functioning, and has denied homicidal or suicidal ideation. His speech has been normal in rate and tone, and he has been alert and fully oriented at all times of record. He has been cooperative with his treatment care providers. He has not displayed any evidence of psychosis, and has denied any hallucinations and delusions. His GAF scores have ranged from a low of 45 in September 2005 to a high of 65 in August 2009. A GAF score of 41-50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Most recently, a GAF score of 60 was assigned in August 2011. After considering the totality of the record, the Board finds the preponderance of the evidence to be against ratings in excess of 50 percent prior to August 26, 2011, and in excess of 70 percent thereafter. Considering first entitlement to a rating in excess of 50 percent prior to August 26, 2011, the Board finds the preponderance of the evidence to be against a rating of 70 percent or higher for this period. The Veteran's PTSD did not during this period result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. He has denied homicidal or suicidal thoughts or plans, as well as obsessional rituals which interfere with routine activities. He has also been able to converse and communicate in a logical, coherent fashion, and has denied near-continuous panic attacks or depression affecting the ability to function independently, appropriately and effectively. While he has reported some impairment in his impulse control, he has denied any legal difficulties, frequent violent outbursts, or drug or alcohol abuse issues. His personal self-care and hygiene has also been good, and he remains married to his wife of many years, and in contact with this adult children and other family members. All examiners of record have found him to be competent to manage his household and financial affairs. Overall, the preponderance of the evidence indicates a rating in excess of 50 percent prior to August 26, 2011, is not warranted. Considering next entitlement to a rating in excess of 70 percent effective August 26, 2011, the Board finds the preponderance of the evidence to be against such an award. The Veteran's PTSD does not result in total occupational and social impairment, for which the next higher rating of 100 percent would be warranted. He does not display such symptoms as gross impairment in thought processes or communication; according to the examination reports and treatment records, the Veteran exhibits normal thought processes and judgment, and is able to converse in a normal, logical manner. He also does not report persistent delusions or hallucinations, and has displayed no detachment from reality. His behavior is also not grossly inappropriate, and the Veteran is not a persistent danger to himself or others. All examiners of record have also rated as him as competent and able to perform all activities of daily living. His hygiene has been within normal limits, and he has displayed no disorientation to time or place. While the Veteran has reported some memory loss, this has been characterized as mild. Overall, the preponderance of the evidence is against a rating in excess of 70 percent for the period commencing August 26, 2011. Furthermore, the Board concludes that, as the Veteran has displayed an essentially similar level of impairment since the initiation of this appeal, staged ratings in excess of that already awarded are not warranted for any period during the pendency of this appeal. See Fenderson, 12 Vet. App. at 119. The Board is cognizant of the Veteran's contentions that his PTSD results in a level of impairment which warrants increased ratings. Statements from the Veteran's wife have also been reviewed and considered by the Board. Despite being laypersons, the Veteran and his wife are competent to report such observable symptomatology as his psychiatric symptoms. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). These lay contentions regarding the Veteran's PTSD symptomatology are also considered credible by the Board. Nevertheless, the Board finds these statements to be of lesser probative value as compared to the VA examination reports and other treatment records, rendered by objective examiners with expertise in assessing psychiatric impairment. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (claim for an increased rating includes consideration of whether a total rating by reason of individual unemployability is warranted under the provisions of 38 C.F.R. § 4.16). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO 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 criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that 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, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only 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). 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. Either 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. 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. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant diagnostic codes for the disability at issue. The Board observes the Veteran is retired due to physical disabilities unrelated to his PTSD, and has not required hospitalization for his service-connected disability during the pendency of this appeal. Additionally, no examiner has stated the Veteran's service-connected disability alone is the cause of any marked interference with employment. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. The Board does not find that the schedular criteria have been inadequate for rating the manifestations of the service-connected disability. See 38 U.S.C.A. § 1155 (disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity). For these reasons, referral for extraschedular consideration is not warranted. In conclusion, the Board denies ratings for the Veteran's PTSD in excess of 50 percent prior to August 26, 2011, and in excess of 70 percent thereafter. As a preponderance of the evidence is against the award of ratings in excess of those already assigned, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. Finally, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in March 2005, April 2008, December 2008, and August 2011 that fully addressed all notice elements. Additionally, the first of these letters was sent prior to the initial June 2005 RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the Veteran was provided with notice of the type of evidence necessary to establish a rating or effective date for the disability on appeal within the August 2008 letter. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his 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; 38 C.F.R. § 3.159. In the present case, the Veteran has been afforded several VA medical examinations, the most recent of which was conducted in August 2011. After a careful review of the file, 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 and other medical treatment records, as identified by the Veteran. The Board notes that the medical evidence of record contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. All available records and medical evidence have been obtained in order to make an adequate determination as to this claim. 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 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 A rating in excess of 50 percent for PTSD prior to August 26, 2011, is denied. A rating in excess of 70 percent for PTSD since August 26, 2011, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs