Citation Nr: 1301508 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-13 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent prior to August 1, 2012 for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 70 percent since August 1, 2012 for PTSD. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to April 1972. The Veteran served in the Republic of Vietnam and was awarded, among other decorations, the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office. In May 2012, the Board remanded the case for further development, which has been completed. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009) The holding of Rice is inapplicable here, as the evidence of record shows that the Veteran continues to work for his local transportation agency. There is no contention or evidence of unemployability and consideration of a TDIU is not warranted. FINDINGS OF FACT 1. Prior to August 1, 2012, the Veteran's PTSD did not result in occupational and social impairment with reduced reliability and productivity. 2. Since August 1, 2012, the Veteran's PTSD has not resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD prior to August 1, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125 Diagnostic Code (DC) 9411 (2012). 2. The criteria for a rating in excess of 70 percent for PTSD since August 1, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125 Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA 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. January 2008 and July 2009 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). The July 2009 letter informed the Veteran of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an August 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield, 444 F.3d at 1333-34. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in February 2008, July 2009, and August 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c) (4). These examinations contain sufficient information to properly rate the Veteran under the applicable Diagnostic Code. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Entitlement to an Increased Rating for PTSD Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree 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 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Since the issue in this case is entitlement to an increased rating, the present level of his disability is the Board's primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As the Veteran's rating has already been staged here, the Board must review the propriety of both the dates of the stage and the ratings assigned. The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 30 percent rating is warranted when there is 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). Id. A 50 percent rating is warranted when 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 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. Id. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather 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). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). GAF scores ranging between 61 and 70 are indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51 to 60 is defined as 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). 30 Percent Rating Prior to August 1, 2012 The Veteran underwent a VA examination in February 2008. He reported suffering from mild difficulty falling and staying asleep, and that he suffered from nightmares 2-3 times per week. He stated that he had frequent thoughts of Vietnam, though the examiner characterized his memories as more general in nature and stated that they rarely reached the threshold of intrusive thoughts. The Veteran also reported being anxious in large crowds. He denied symptoms of major depression, and stated that though he suffers from anxiety, he does not have full panic attacks. He reported working for the transportation authority in San Francisco, and stated that he typically worked nights, as it had less traffic and fewer people. The mental status examination found that the Veteran was appropriately dressed and groomed. He was open and cooperative with the examiner. He was capable of all activities of daily living. He had no impairment in communication and no unusual motor movements. His mood and affect were gregarious and euthymic, although somewhat anxious due to the interview situation. His abstract reasoning, concentration, and long and short term memory were all within normal limits, though the Veteran reported increasing forgetfulness. He had no evidence of any thought disorder or paranoia, and he denied suffering from suicidal ideation. He was diagnosed as suffering from PTSD and assigned a GAF score of 65. In an April 2008 letter, the Veteran stated that he was suffering from a mild case of PTSD. He stated that he is constantly reliving the events of Vietnam, and that news coverage of the current wars intensifies his memories. He stated that his PTSD results in anxiety attacks, cold sweats, tension, and nervousness. He complained of difficulty falling and staying asleep, and that his exhaustion impacts his ability to function. He stated that he at times feels a mild sense of depression. The Veteran underwent a second VA examination in July 2009. He reported increased tension with his wife and at work. He reported problematic sleep disturbances, including nightmares. He described suffering from irritability and a need to control his temper. He described himself as increasingly isolated with no close friends. He stated that he did not suffer from depression or panic attacks. He said that he was still working, but planned on retiring soon. The mental status examination described the Veteran as appropriately dressed and groomed. He was open and cooperative with the examiner. He was capable of all activities of daily living. He had no impairment in communication, no unusual motor movements, and no dysfunctional behavioral patterns. His mood and affect were congruent and appropriate. He had no thought disorder or paranoia. He admitted occasional suicidal thoughts, but denied any history of attempts or any risk for acting on these thoughts. He was diagnosed as suffering from PTSD and assigned a GAF score of 54. The examiner stated that it was not clear whether the Veteran had underreported his symptoms in his last evaluation or whether his problems had increased in severity. In a July 2009 letter, the Veteran stated that he was uncomfortable when reading or watching news of the current wars. He stated that doing so causes him to remember events from Vietnam. He stated that he suffers from anxiety and an increased heart rate. He described himself as depressed and jumpy, and said he finds it difficult to sleep without sleeping pills. For this period, the Veteran's symptoms more closely approximate those described by the 30 percent rating. The evidence shows that the Veteran suffers from depression, anxiety, sleep impairments, and mild memory loss, all of which are described by the 30 percent rating. His GAF scores of 65 and 54 also correspond to this 30 percent rating. The Veteran's symptoms do not rise to or approximate the level described by the 50 percent rating. Though he suffers from disturbances of motivation and mood and a difficulty in establishing and maintaining effective work and social relationships, he displays no other symptoms contained in the 50 percent rating. Nor is there any evidence of any other manifestations not included the rating schedule that might warrant a rating higher than 30 percent. The Veteran's symptoms are not productive of the occupational and social impairment with reduced reliability and productivity required for the 50 percent rating. The Veteran has remained gainfully employed and, though he describes his relationship with his wife as strained, the two remained married throughout this period. The preponderance of the evidence is against the claim for an increased rating for PTSD prior to August 1, 2012; there is no doubt to be resolved; and an increased rating for the Veteran's PTSD for this period is not warranted. 70 Percent Rating Since August 1, 2012 The Veteran underwent his most recent VA examination on August 1, 2012. The Veteran described himself as socially isolated, but stated that he has been able to work consistently without time off due to his psychiatric symptoms. The Veteran reported remaining married and close to his daughters. The examiner reported that the Veteran suffers from chronic sleep impairment, disturbances of motivation and mood, a difficulty in establishing and maintaining effective work and social relationships, a difficulty in adapting to stressful circumstances, and suicidal ideation. The examiner diagnosed the Veteran as suffering from PTSD, and assigned a GAF score of 55. He found that the Veteran's PTSD results in occupational and social impairment with occasional decrease in work efficiency. Following this examination, the Veteran's rating was increased to 70 percent, notwithstanding the reported symptomatology and GAF score. The only remaining rating under the General Rating Formula is 100 percent. That rating is assigned if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The evidence does not show that the Veteran suffers from any of these symptoms. He is employed and married and he clearly does not have total occupational and social impairment. Nor have any other manifestations been reported or found that would warrant consideration of a 100 percent rating. The preponderance of the evidence is against the claim for an increased rating for PTSD since August 1, 2012; there is no doubt to be resolved; and an increased rating for the Veteran's PTSD for this period is not warranted. Extraschedular Rating The Veteran's disability is not so severe as to warrant an extraschedular rating. An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations, which is not demonstrated by the evidence. 38 C.F.R. § 3.321 (2012). The applicable rating criteria here are adequate to evaluate the Veteran's PTSD for both periods. There is no evidence of marked interference with employment or frequent hospitalizations. The Veteran's reported and observed manifestations are those provided for in the rating criteria; the first threshold of the Thun framework is not met, ending the Board's inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to a disability rating in excess of 30 percent prior to August 1, 2012 for PTSD is denied. Entitlement to a disability rating in excess of 70 percent since August 1, 2012 for PTSD is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs