Citation Nr: 1300425 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-35 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Evaluation of posttraumatic stress disorder (PTSD), rated 10 percent disabled. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had service from July 1963 to July 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO granted entitlement to service connection for PTSD and assigned a 10 percent disability evaluation. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The symptoms of the Veteran's PTSD have more nearly approximated 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). CONCLUSION OF LAW The criteria for an evaluation of 30 percent for PTSD 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, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As noted above, the claim for a higher rating for PTSD arises from the Veteran's disagreement with the rating assigned in connection with the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-7 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs). He has told the RO of any VA or private treatment records relevant to the claim on appeal. The Veteran was also afforded two VA examinations. For the reasons discussed below, these examinations are adequate for the Board to assess the propriety of the evaluation for the Veteran's PTSD. In the March 2012 VA examination report, the examiner referenced a private outpatient treatment record from Dr. A. That report is not of record or contained in the claims file, and it is unclear how the examiner obtained it for review. Nevertheless, the RO twice sent the Veteran letters in October 2007 and February 2008 and requested that he provide a release for any private treatment records he wanted VA to request for him. The Veteran did not submit any such releases, and the RO is unable to request the records. Therefore, the RO has fulfilled the duty to assist with regards to these records. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for a higher evaluation for PTSD is thus ready to be considered on the merits. II. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Par 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Here, however, as shown below, the evidence warrants a uniform 30 percent rating. The Veteran is in receipt of a 10 percent rating for PTSD pursuant to 38 C.F.R. § 4.130, DC 9411. However, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 10 percent rating is warranted for 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. A 30 percent rating requires a showing of 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, and mild memory loss (such as forgetting names, directions, and recent events). 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 70 percent rating 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 warranted when the disorder 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 list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. The Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). 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). A score of 61-70 indicates 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 that the individual is generally functioning pretty well and has some meaningful interpersonal relationships. A score of 71-80 indicates that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. In a January 2007 written statement, the Veteran indicated that he experienced nightmares and woke up at night. In June 2008, the Veteran underwent VA examination. He denied symptoms were present during the past year and denied any current or previous psychiatric treatment. The Veteran reported that he was married and had a good relationship with his spouse. He also noted social relationships and activities that included hunting, fishing, and gardening. There was no history of suicide attempts or violence. His current psychosocial functional status was impaired. On examination, the Veteran was clean, his psychomotor activity was unremarkable, his speech was clear, his attitude was cooperative and friendly, his affect was normal, his mood was good, his attention was intact, and he was oriented. The Veteran's thought process and content were unremarkable. He had no delusions. The Veteran understood the outcome of his behavior and understood that he had a problem. He denied sleep impairment, panic attacks, and hallucinations. The Veteran demonstrated no inappropriate behavior, obsessive or ritualistic behavior, homicidal or suicidal thoughts, impairment of impulse control, and episodes of violence. He was able to maintain minimal personal hygiene and had no problems with activities of daily living. The Veteran had normal memory. The Veteran met the PTSD criteria, which included re-experiencing the traumatic event, avoidance of stimuli associated with the trauma, and persistent symptoms of increased arousal. This caused impairment in functioning. The Veteran had frequent, chronic mild PTSD symptoms with no periods of remission. The Veteran had retired in 2001 based on being eligible due to age or duration of employment. The diagnosis was PTSD, chronic, mild, and the GAF score was 68. The examiner commented that the Veteran had mild social and occupational impairment due to PTSD. There was not reduced reliability and productivity due to PTSD symptoms. However, there was occasional decrease in work efficiency with intermittent periods of being unable to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning. This included nightmares. In September 2009, the Veteran indicated that he requested a 30 percent award for PTSD. In March 2012, the Veteran underwent VA examination. The Veteran had very mild symptoms, of which nightmares were the most prominent and occurred one to two times per month. Most symptoms were sub-clinical. The GAF score was 75. The examiner commented that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. On examination, the Veteran indicated that he had been married since 1971 and described his relationship as excellent. He had two children he saw at least twice per month and described their relationships as good. The same was true for his five grandchildren. He fished, hunted, gardened, and cared for his lawn. The Veteran travelled with his wife and enjoyed those trips. They occasionally entertained another couple or socialized with another couple. He bathed and groomed daily. He also volunteered for certain activities. The Veteran described a positive work experience with a history of problems with only one coworker, which the examiner described as usual corporate issues that involved racism. The Veteran stated that he saw a private doctor for the past two years for medication due to nightmares. The examiner stated that, according to a letter from Dr. A, the Veteran had a diagnosis of PTSD and sleep disorder, not otherwise specified. He noted moderate impairment in occupational and psychological functioning and assigned a GAF score of 70 as of June 2011. The examiner noted that Dr. A did not outline the symptoms the Veteran experienced due to his PTSD. The Veteran's only medication was Trazodone. The only symptom demonstrated by the Veteran was chronic sleep impairment. He had nightmares up to two times per month. He described his mood as "OK," although he still had some grief due to his sister's death. He denied suicidal or harm ideation. The Veteran was pleasant, overtly cooperative, oriented, appropriately groomed and dressed, and had goal-directed and logical speech. The Veteran had a broad affect consistent with euthymia. He could smile and laugh. He described his mood as "pretty decent." Memory was normal. The Veteran had mildly impaired concentration. Abstract thought was normal. The examiner commented that the Veteran's condition essentially remained unchanged since his last examination. It may have briefly worsened after his sister's death but appears to have returned to baseline with medication only for sleep. Most symptoms were extremely mild in nature. The above evidence, including the Veteran's lay statements, reflects that his symptomatology and overall impairment has most nearly approximated the criteria for a 30 percent rating. The Veteran had occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The June 2008 VA examiner specifically noted that the Veteran's symptomatology coincided with these criteria associated with a 30 percent rating. The March 2012 VA examiner, while indicating that the Veteran's symptoms were appropriately described by the criteria warranting a 10 percent rating, also stated that the Veteran's disability had not changed since the last examination, with the exception of an acute period of worsening following the death of the Veteran's sister. Evaluating this evidence in the light most favorable to the Veteran, the Board concludes that a 30 percent rating is warranted during the entire appeal period. The evidence also shows that the Veteran did not have the symptomatology or overall impairment approximating the criteria for a 50 percent rating or higher. Neither his lay statements nor the VA examination reports indicated that he had flattened affect, circumstantial, circulatory, or stereotyped speech, panic attacks, difficulty understanding complex commands, memory impairment, impaired judgment, impaired abstract thinking, disturbances of motivation or mood, or difficulty in establishing and maintaining effective work and social relationships. In fact, the VA examination reports contained almost totally normal findings in this regard, with the Veteran throughout the appeal period being oriented in all spheres, with normal speech, thought processes, thought content, and judgment. Thus, the overall level of impairment as well as the specific symptomatology more nearly approximated the criteria for a 30 percent rating. Moreover, the Veteran did not indicate that he experienced any of the symptoms listed in the criteria for a 50 percent rating during the VA examinations or in written statements. The evidence thus reflects that the Veteran demonstrates an occasional decrease in work efficiency but does not have difficulty in establishing and maintaining effective relationships, and his overall level of impairment otherwise more nearly approximates the criteria for a 30 percent rating. With regard to the VA examinations, the above summaries of these examinations reflect that they were adequate because they were based on consideration of the Veteran's prior medical history and described his PTSD in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As the lay and medical evidence reflect that the Veteran's PTSD symptoms and overall impairment most nearly approximate the criteria for a 30 percent rating, a 30 percent rating for PTSD is warranted. 38 C.F.R. § 4.7. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. Both the symptoms and overall impairment are contemplated, and the Board's analysis above explained why this warranted a 30 percent rating under the relevant criteria. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment or frequent hospitalization due to his PTSD or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for PTSD is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence warrants a 30 percent rating for PTSD. The benefit-of-the-doubt doctrine is therefore not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to a 30 percent evaluation for PTSD is granted, subject to the laws and regulations governing the payment of VA benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs