Citation Nr: 1301369 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-41 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1968 to October 1970. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT At no time during the course of the Veteran's appeal has it been shown that his PTSD caused occupational and social impairment characterized by deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, nor has it been shown that his PTSD caused total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(a), 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying a schedule of ratings that 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. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In October 2003 the Veteran was granted service connection for PTSD and a rating of 50 percent was assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran did not appeal this rating and the decision is now final. In May 2009 the Veteran filed new medical evidence alleging his condition had worsened. The RO treated this submission as a new claim for an increased rating for PTSD. Under Diagnostic Code 9411, a 50 percent rating is assigned when PTSD causes 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-term 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. Id. A 70 percent evaluation is assigned when 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 work like setting); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of an individual. Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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). Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran has argued that due to his most recent examination plus his complete medical history he should be granted a 70 percent rating. As will be discussed, the Board is not convinced that a rating of 70 percent is warranted. The Veteran filed his claim in May 2009. Treatment records from the year prior have been reviewed and considered, including treatment records in Virtual VA. The Board notes that during the entire period on appeal the Veteran has regularly seen a mental health professional. He generally received treatment on a biweekly basis, with occasional periods of weekly treatment. The records reflect this treatment began in 2003, several years before the period on appeal. The treatment records reveal the Veteran has close relationships with several people, including his girlfriend of over ten years and each of their children. The Veteran does report ongoing tension in all of these relationships due to personal conflicts between his girlfriend and his sons. For example, in August 2010 the Veteran expressed feelings of guilt at not spending more time with his sons who are both in college, but described difficulties visiting them due to their ongoing conflict with his girlfriend. The records also reflect the Veteran attending various social outings, including, for example, a holiday party in December 2009, his son's track meet on April 2010, a cruise in August 2011, and several weekend family vacations. The Veteran described his discomfort and anxiety at such activities, frequently describing sitting with his back to the wall. The Veteran continues to work as a locksmith, which he has done for nearly thirty years. However, the Veteran expresses anxiety over his performance at work and relationships with his co-workers and supervisors. The treatment records do include descriptions of several isolated incidents of inappropriate anger, including, for example, an October 2009 confrontation with a driver who tried to get in front of him. The Veteran reported he was able to restrain himself from physical altercation. The records do reflect occasional thoughts of suicide, but the Veteran has denied planning or active suicidal ideation on several occasions, most recently in December of 2011. In May 2009 the Veteran's mental health professional noted the Veteran's PTSD symptoms had increased due to his diagnosis of prostate cancer and ongoing side effects. For example, the Veteran reported added anxiety of embarrassment due to urinary leakage. Additionally, in January 2010 the Veteran's girlfriend's son passed away unexpectedly in a car crash. This lead to a period of increased stress in his relationship with his girlfriend, including difficulty in supporting her in her grief. The Veteran also reported an increase in intrusive thoughts of soldiers and friends the Veteran lost in Vietnam during this period. The medical professional reports the Veteran experiences daily intrusive thoughts of Vietnam, especially when triggered by the sounds of sirens. The Veteran also reported symptoms of claustrophobia in February 2012. Based on the Veteran's allegations of an increase in symptoms he was given a VA examination in October 2009. The examiner reviewed the Veteran's medical records as well as interviewed and examined the Veteran. The Veteran reported the same symptoms he reports at his regular treatment sessions, including persistent sleep disturbances and nightmares approximately twice a week. He also reported intrusive thoughts of traumatic events, episodic anger, avoidance of stimuli, and hypervigilance. The Veteran reported these symptoms occur daily and are moderate to severe. He did acknowledge fleeting thoughts of suicide, but denied any intent or plan. The examiner noted the Veteran appeared with "adequate" hygiene, and was alert, oriented, and cooperative during the exam. His thought process was intact and his speech and movements were unremarkable. The examiner assigned the Veteran a GAF score of 52. He noted irritability and anger interfered with the Veteran's work and personal relationships. He also noted intensification of the Veteran's symptoms due to the chronic effects of prostate cancer and its treatment. The examiner found the Veteran is capable of managing his own VA benefits. More recently in August 2011 the Veteran's PTSD was again assessed by a VA medical professional. This professional found the Veteran was lucid, neatly groomed, and posed no risk of harm to self or others. The professional noted the Veteran has supportive family as well as leisure and recreational interests. The professional assigned the Veteran a GAF score of 55. Both GAF scores, 52 and 55, suggest the Veteran is experiencing moderate symptoms. However, while potentially probative, GAF scores are not determinative. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). Instead the whole of the Veteran's symptoms must be considered. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Upon consideration of the Veteran's condition as a whole the Board finds that a rating of 50 percent is appropriate. The Board will now turn to a discussion of why a 70 percent rating is not warranted. As discussed above, the Veteran asserts he is entitled to a 70 percent rating due to his increase in symptoms. The opinions of the medical professionals in the record support the Veteran's assertion that his symptoms have increased. However, even with the symptomatic increase the Veteran's disability is not so severe as to warrant a 70 percent rating. The Veteran does not exhibit most of the symptoms included in the diagnostic code for a 70 percent rating, or if he does, the symptoms are not of sufficient frequency or severity to warrant a 70 percent rating. First, throughout the claims file the medical professionals who examined the Veteran found him to be oriented, alert, well groomed, and exhibiting appropriate behavior. These observations indicate the Veteran is not neglecting personal hygiene or experiencing impaired impulse control, both symptoms of a 70 percent rating. Secondly, the Veteran is able to maintain a relationship with his girlfriend and his family members. Although the Veteran reports these relationships are difficult and full of tension, this more closely aligns with the standard for 50 percent rating, which includes "difficulty in establishing and maintaining effective work and social relationships," not the diagnostic code for a rating of 70 percent which involves an "inability to establish and maintain effective relationships." 38 C.F.R. § 4.130 (emphasis added). Even if they are difficult and strained at times, the Veteran is able to maintain effective relationships with his long-term girlfriend and both of their families. Finally, when the Veteran's symptoms are viewed as a whole his level of impairment is not severe enough to warrant a 70 percent rating. There is no evidence in the claims file that the Veteran is experiencing several of the symptoms associated with a 70 percent rating, such as obsessional rituals which interfere with routine activities, illogical speech, or near-continuous panic or depression. Furthermore, the record reflects the Veteran continues to work. Although the Veteran reports anxiety about his work relationships and productivity, he has been able to maintain the same full-time job as a locksmith for nearly thirty years. This continued employment is probative evidence suggesting the Veteran does not exhibit "difficulty in adapting to stressful circumstances (including work or a work like setting)" as included in the description for 70 percent rating. 38 C.F.R. § 4.130. Additionally GAF scores of 52 and 55 are both in the moderate range of impairment, not severe. These symptoms taken as a whole do not establish the Veteran has "deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood," which is the standard for a 70 percent impairment. The Board acknowledges that the Veteran, despite being a layperson, is competent to describe his observable symptomatology, such as joint pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 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). The Board does not, however, find such assertions to carry more probative weight as compared to the various clinical findings which indicate a disability rating of 50 percent and no higher is warranted. To the extend that the Veteran contends a level of impairment in excess of that already compensated by his current ratings for the disability at issue, the Board finds the objective clinical findings and the medical examiners' conclusions to be more probative than the Veteran's contentions regarding the state of his service-connected disability. Thus, based on these clinical findings, a disability rating in excess of 50 percent is not warranted. Based on all of the foregoing the Board finds that the Veteran's symptomology as a whole causes impairment that more nearly approximates the diagnostic code for a 50 percent rating. As such, the Board finds that a rating of 70 percent is not warranted at any time during the course of the appeal. See 38 C.F.R. § 4.7. Similarly, since he has not met the threshold for 70 percent rating the Veteran therefore has not established an 100 percent rating. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's PTSD that would render the schedular criteria inadequate. The Veteran has asserted that his main symptoms are intrusive thoughts and anxiety, which are both contemplated in the rating assigned. Moreover, as discussed the Board focused above on how the totality of the Veteran's PTSD symptoms impacted his social and occupational functioning. In so doing, the Board has in fact considered the entirety of the Veteran's PTSD related symptomatology within the context of the schedular ratings. Therefore, because the schedular ratings adequately contemplate the Veteran's symptoms, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the Board finds that Rice is inapplicable since the evidence establishes the Veteran is still fully employed and he has not alleged his PTSD renders him unemployable. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in September 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). VA treatment records have been obtained and the Veteran has not alleged receiving any private psychiatric treatment. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Entitlement to a disability rating in excess of 50 percent for PTSD is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs