Citation Nr: 1301211 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-36 956 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for post traumatic stress disorder (PTSD) from June 18, 2009, and in excess of 50 percent from November 10, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from October 1985 to January 1986, from June 2000 to April 2001, from November 2002 to August 2003, and from August 2006 to November 2007. The Veteran is a current member of the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the RO which granted service connection for PTSD and assigned a 30 percent evaluation; effective from June 18, 2009, the date of receipt of his original formal claim. 38 C.F.R. § 3.400(b)(2). By rating action in December 2010, the RO assigned an increased rating to 50 percent; effective from November 10, 2010, the date of a VA examination report. FINDING OF FACT Since service connection was established in June 18, 2009, the Veteran's symptoms for PTSD more nearly approximated the degree of occupational and social impairment contemplated by a 50 percent schedular rating, and no higher. CONCLUSION OF LAW The criteria for an initial evaluation of 50 percent, and no higher, for PTSD from June 18, 2009, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Part 4, Diagnostic Codes 9411-9440 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, the Veteran is challenging the initial rating assigned following the grant of service connection. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). That notwithstanding, the Veteran was nevertheless apprised of the rating criteria for PTSD in the statement of the case promulgated in August 2010. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran's service treatment records (STRs) and all VA medical records have been obtained and associated with the claims file. The Veteran was examined by VA twice during the pendency of this appeal and was offered an opportunity for a personal hearing, but declined. The Board finds that the most recent VA examination in November 2010 was comprehensive and adequate upon which to base a decision concerning the claim for increase, and there is no competent or credible evidence indicating that there has been a material change in the severity of the Veteran's PTSD since the VA examination. The examiner personally interviewed and examined the Veteran, elicited a medical and occupational history, and provided a rational explanation for his conclusions. The Veteran's Virtual VA medical records were also reviewed. Further, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Based on a review of the claims file, the Board concludes that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Ratings - In General In general, when 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). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are 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. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where PTSD 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 minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, a 100 percent rating is assigned. Where PTSD causes 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, a 70 percent rating is for assignment. Where PTSD results in 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, a 50 percent rating is awarded. Where PTSD results in 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), a 30 percent rating is awarded. 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the term "such as" in the general rating formula for mental disorders 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 as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as" followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. PTSD As indicated above, service connection was established for PTSD by the RO in September 2009, and was initially assigned a 30 percent rating, effective from June 18, 2009, the date of receipt of the Veteran's original formal claim. 38 C.F.R. § 3.400(b)(2). The Veteran disagreed with the rating assigned giving rise to the current appeal. Thereafter, by rating action in December 2010, the RO assigned an increased rating to 50 percent; effective from November 10, 2010, the date of a VA examination report. 38 C.F.R. § 3.400(o)(2). The pertinent evidence of record includes VA psychiatric examination reports conducted in September 2009 and November 2010, several VA outpatient notes from March 2009 to April 2011, and Vet Center treatment notes from March to August 2010. The Veteran's complaints, included depressed mood, irritability, anxiety in crowds, avoidance behavior, flashbacks, hypervigilance, impaired sleep, intrusive thoughts, guilt, and difficulty trusting people. When examined by VA in September 2009, the Veteran reported that he was divorced with two children, and that he had a good relationship with his parents and four siblings. The Veteran reported that he was more moody and tired since the onset of his PTSD, and that he prefers to keep to himself. He worked for a clothing company for the past year, had a good relationship with his co-workers and supervisor, and did not miss anytime at work. On mental status examination, the Veteran was well oriented, and his behavior, hygiene and appearance was appropriate. There was some disturbance of motivation and mood, and he reported difficulty finding motivation to go to work. His communication, speech, and concentration were within normal limits, and he denied any panic attacks. There was no evidence of suspiciousness, obsessional rituals, delusions or hallucinations, or any reported history of same. His thought processes were appropriate, he was able to read and understand directions, and there was no evidence of slowness of thought or confusion. His abstract thinking and memory were intact, and there was no evidence of homicidal or suicidal ideations. The diagnoses included PTSD and major depression, and the Global Assessment of Functioning (GAF) score was 52. The examiner commented that the effect of the Veteran's PTSD symptoms on employment and overall quality of life included his having occasional difficulty dealing with people at work, and some occasional interference performing the activities of daily living. The examiner opined that the best description of Veteran's present psychiatric impairment was that it caused occupational and social impairment with reduced reliability and productivity. When examined by VA in November 2010, the Veteran reported that his symptoms were constant and continuous, and that they affected his total daily functioning such that he had difficulty controlling his anger, irritability and getting along with people. On mental status examination, the Veteran did not maintain good eye contact and his affect showed a disturbance of motivation and mood, a flattened affect, mood swings, anxiety and depressed mood. He reported little drive or motivation for previously enjoyed activities, and showed some impaired attention and/or focus. The Veteran reported panic attacks more than once a week, feelings of suspiciousness when people are behind him, and said that he was easily confused when dealing with complicated projects. His behavior, hygiene and appearance were appropriate, he was well oriented, and his speech, communication, abstract thinking, and memory were within normal limits. The Veteran denied any history of delusions or hallucinations, and there was no evidence of obsessive/compulsive behavior or any suicidal or homicidal ideations. The diagnoses included PTSD with associated major depressive disorder and panic disorder. The GAF score was 49. The examiner commented that the Veteran was intermittently unable to perform activities of daily living (but can provide self-care) due to difficulty coping with the memories of combat which makes him unable to sleep and focus on important tasks. The examiner opined that the best description of Veteran's present psychiatric impairment was that it caused occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran was not receiving any regular psychiatric treatment and recommended that he seek outpatient counseling. The evidentiary record also includes several Vet Center notes showing treatment from March to August 2010. In May 2010, the Veteran reported that he was very busy in the Army National Guard and working for his brother (contractor) after quitting his job at the clothing company. The Veteran reported that his relationship with his girlfriend was deteriorating. The records showed that the Veteran attended church regularly and that he reported meeting good people there. He also reported that he enjoyed working outdoors and was trying to stay in shape. A review of Virtual VA records showed that the Veteran was seen by VA on an outpatient basis in April 2011. At that time, the Veteran reported that he was depressed and had a don't care attitude, and that his new girlfriend told him that he was emotionally cold and distant. He said that he felt more irritable and was easily angered. He reported that his ex-girlfriend moved out of the state with his children and that he did not have contact with them. On mental status examination, the Veteran was neatly groomed, cooperative, and made good eye contact. His speech was soft in tone, his mood was depressed, and his thought processes were linear. He was well oriented, his mood was congruent, and there were no suicidal or homicidal ideations or any auditory or visual hallucinations. The assessment included PTSD, major depressive disorder and alcohol abuse. The GAF score was 55. Analysis As indicated above, the Veteran was assigned a 30 percent evaluation for his PTSD from the date of his original claim in June 2009 to the date of a VA psychiatric examination in November 2010, and a 50 percent evaluation thereafter. After review of all the evidence of record, the Board finds that while the Veteran reported increased symptoms, including panic attacks and worsening of his depressed mood and irritability since the initial VA examination in 2009; overall, his symptomatology and the VA examiner's description of the severity of his service-connected psychiatric impairment was essentially the same during the entirety of this appeal. Although the Veteran reported on the November 2010 VA examination that he has no friends, isolates himself and has difficulty getting along with people, the Vet Center notes around the same time showed that he attends church regularly and that he reported meeting good people at church. Further, the Veteran's assertions were in stark contrast to what he reported on VA examination only a year earlier, when he stated that he had a good relationship with his co-workers and supervisor, and that he got along well with his parents and siblings. He also reported an incident whereby he had to call a "friend" for a ride. (See June 2010 Vet Center note). That is not to say, that the Veteran does not experience some periods of isolative behavior or has difficulty with personal relationships. However, the fact that he attends church regularly and interacts with members of the congregation suggests that his reported isolative behavior is not a significant impairment. On the other hand, the Board does not discount the effect of the Veteran's significant symptoms of sleep disturbance, intrusive thoughts, flashbacks, nightmares, and depression on his daily life. The record shows that he continues to have difficulty in many areas of his life, and that he displayed periods of frustration, mood disturbance, and depression. The fact that he has been able to control his symptoms, does not diminish the degree of his psychiatric impairment. The Veteran's complaints and the clinical findings during the pendency of this appeal have consistently shown that he was well oriented, his behavior, hygiene and appearance was appropriate, and his speech, communication, abstract thinking, and memory were within normal limits. The Global Assessment of Functioning (GAF) scores during the pendency of this appeal, included 52 on VA examination in September 2009, 49 in November 2010, and 55 on the April 2011 VA outpatient note. A GAF score is an indicator of the examiner's assessment of the individual's overall functioning. A GAF score between 41 and 50 contemplates a level of impairment of 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). A GAF score between 51 and 60 contemplates 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). American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994) (DSM-IV). However, the Board is not required to assign a rating based merely on such score. The material question at issue is whether the Veteran has sufficient occupational and social impairment to disrupt his performance of occupational tasks to the extent set forth in the rating criteria described above for a higher evaluation of 50 percent or greater at any time during the pendency of this appeal. 38 C.F.R. § 4.130 (2012). After reviewing the evidence of record, the Board concludes that the Veteran's psychiatric disability picture more closely approximates the criteria for a 50 percent schedular rating, and no higher, from the date of his original claim in June 2009. While the evidence shows reduced reliability and some problems with interpersonal relationships, it does not suggest that his service-connected psychiatric symptoms are of such severity to warrant a rating of 70 percent or higher. The evidence does not reflect any impairment of thought process or communication, inappropriate behavior, actual danger of hurting himself or others, or an inability to perform the routine activities of daily living. The Veteran has never displayed any evidence of disorientation or any psychotic symptoms. He is well-oriented and his thought processes are logical, coherent and goal directed. In this case, the evidence of record does not show that the Veteran's symptomatology is reflective of the severity and persistence to warrant an evaluation in excess of 50 percent at anytime during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). However, there is no objective evidence that any manifestations related to the Veteran's PTSD are unusual or exceptional. For the reasons discussed above, the Board finds that the schedular rating criteria adequately contemplates the impairment caused by the Veteran's psychiatric disorders. In view of this, referral of this case for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008); Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Finally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. The Board notes that while the Veteran reported that he was not employed because he didn't get along with co-workers when seen by VA in April 2011, he went on to report that he does odd construction type jobs. In this regard, the evidence of record showed that he has worked in construction for many years and that he is self-employed. (See i.e., April 2005 VA outpatient note). Furthermore, the Veteran has been in the Army National Guard since 1985. (See August 2012 VA letter to Veteran). While the Veteran reported that his symptoms of irritability and anger affects his relationships with co-workers, he has never alleged that he is unable to work because of his PTSD, nor do the medical reports during the pendency of this appeal suggest that his psychiatric symptoms preclude substantially gainful employment. Based on the evidence of record, the Board finds that further consideration of a TDIU is not warranted. ORDER An initial evaluation of 50 percent for PTSD is granted from June 18, 2009, subject to VA laws and regulations pertaining to the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs