Citation Nr: 1301568 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-37 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial disability evaluation (rating) in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from November 2003 to May 2008. He is the recipient of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which granted service connection for PTSD with depressive disorder, and assigned a 30 percent initial rating, effective June 1, 2008 (based on date of claim for service connection). The Veteran entered a notice of disagreement with the initial rating assigned. A November 2009 rating decision during the appeal granted a 50 percent initial disability evaluation for his PTSD with depressive disorder, also effective for the entire initial rating appeal from June 1, 2008. The Veteran continued to disagree, and the grant of a higher initial rating is not a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. The Virtual VA file does include VA records for treatment in 2011 and 2012, which have not been reviewed by the RO. However, it is not necessary to remand for issuance of a supplemental statement of the case (SSOC) because all but one of these records are not relevant to the claim decided herein. There is one, August 2011 VA treatment note as to the Veteran's PTSD with depressive disorder, but the findings are essentially duplicative of those in July 2011. As such, RO review before adjudication is not required. 38 C.F.R. § 20.1304 (2012). Although the Veteran contended in statements that his PTSD with depressive disorder renders him unemployable, he had already made a claim with the RO for a total disability rating based on individual unemployability (TDIU), which was adjudicated by the RO in June 2011. The Veteran did not appeal. For this reason, the Board will not infer jurisdiction over the claim for TDIU. FINDING OF FACT Throughout the initial rating period on appeal, the Veteran's PTSD with depressive disorder has been characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as a flattened affect, anxiety, depression, intrusive thoughts, sleep impairment, and difficulty in establishing and maintaining effective social relationships. CONCLUSION OF LAW The criteria for an initial disability evaluation in excess of 50 percent for PTSD have not been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran in November 2008, October 2009, and November 2010. The November 2008 letter explained the evidence necessary to substantiate the claim for service connection, as well as the legal criteria for entitlement to such benefits. All of the letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Concerning the appeal for a higher initial rating for PTSD with depressive disorder, this is a "downstream" element of the RO's grant of service connection for this disability in the currently appealed rating decision, and no additional notice is required. Nevertheless, the October 2009 and November 2010 letters from VA to the Veteran explained how a disability rating is determined for a service-connected disability and the basis for determining an effective date upon the grant of any benefit sought. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the CAVC have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA post-service treatment, as well as the Veteran's own statements in support of his claim. In 2008, 2009, and 2010, the Veteran was examined by VA in connection with the claim. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. The examination reports contain all the findings needed to evaluate the Veteran's initial rating appeal, including his history and examinations. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the claim. The Veteran's appeal for a higher initial evaluation is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and the veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of PTSD with depressive disorder since the most recent VA examination in 2010, including no assertion by the Veteran of worsening since the last VA examination. The Veteran in this case does not assert that his PTSD with depressive disorder has worsened since the November 2010 VA examination; he merely asserts entitlement to a higher disability evaluation. The Veteran has not submitted evidence of worsening, and the other evidence of record reflecting on the severity of the PTSD with depressive disorder does not suggest that the PTSD with depressive disorder has worsened since the last VA examination in 2010. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded an adequate examination on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Rating of PTSD Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where, as here, 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, evaluations may be "staged." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This, in turn, will compensate the veteran for times since the effective date of the award when his disability may have been more severe than at other times during the course of his appeal. The Veteran's PTSD with depressive disorder has been initially evaluated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent disability rating requires 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; difficulty in establishing and maintaining effective work and social relationships. Id. The next higher 70 percent evaluation is provided for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive 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 an inability to establish and maintain effective relationships. Id. A 100 percent rating is provided 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. 38 C.F.R. §§ 4.125-4.130. The Global Assessment of Functioning (GAF) is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV)). See also 38 C.F.R. § 4.130. A GAF score of 41-50 indicates "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)." Id. A GAF score 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, (e.g., few friends, conflicts with peers or co-workers)." Id. A GAF score of 61-70 indicates "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. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. See Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The U.S. Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. See Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Analysis of Initial Rating for PTSD with Depressive Disorder The Veteran contends that a higher initial disability rating than 50 percent for PTSD with depressive disorder is warranted. In multiple statements, the Veteran wrote that he is depressed and anxious, has nightmares, experiences difficulty in social situations, and experiences intrusive recollections. He reported in his VA Form 9 that he takes medication for insomnia and for anxiety/depression. After a review of all the evidence, lay and medical, the Board finds that for the entire initial rating period on appeal the Veteran's service-connected PTSD with depressive disorder more nearly approximates the criteria for a 50 percent disability evaluation under Diagnostic Code 9411. The Board finds that the Veteran's psychiatric symptoms have been relatively consistent, and that the 50 percent evaluation takes into account the Veteran's social and occupational impairment for the entire initial rating period. The evidence shows that the Veteran does not experience genuine panic attacks, nor does he have obsessional rituals, impaired impulse control, delusions or hallucinations, spatial disorientation, or illogical speech or thought processes; he is alert and oriented upon examination, he does not have a hyperstartle response, and his depression does not prevent him from functioning independently. Additionally, the schedular diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected PTSD with depressive disorder. Throughout the initial rating period on appeal, the Veteran's PTSD with depressive disorder has been characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as anxiety, depression, insomnia, and intrusive thoughts. The VA examiners assessed that PTSD symptoms interfered with social relationships for the Veteran. The VA examiners assigned GAF scores of 65 (September 2008), 61 (January 2009), and 58 (October 2009 and November 2010) on the basis of PTSD with depressive disorder. A GAF score is probative, as it relates directly to a veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). A GAF score of 51-60 contemplates moderate symptoms or moderate difficulty in social and occupational functioning, such as a flat affect, occasional panic attacks, few friends, conflicts with peers and co-workers. A GAF score of 61-70 contemplates mild symptoms, but generally functioning pretty well. See DSM-IV at 44-47. The GAF scores of the VA examiners take into account all of the medical evidence of record, lay and objective, for the rating period on appeal, which assesses the one year period prior to the date assigned, such that a fuller picture of the nature and history of the Veteran's PTSD with depressive disorder is provided. See 38 C.F.R. § 4.2 (2012) (it is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present). VA examination reports indicate that the Veteran's symptoms were productive of no more than moderate occupational and social impairment, with reduced reliability and productivity due to his PTSD with depressive disorder. The Board acknowledges that the Veteran complained of moderate symptoms several times a week at his November 2010 examination, and that, at each of the Veteran's VA examinations, the Veteran asserted that his symptoms had increased such that his daily functioning was impaired. The Veteran complained of nightmares, anger, hypervigilance, anxiety about financial issues, intrusive thoughts, and depression. At his October 2009 VA examination, he also complained of poor concentration, irritability, and some avoidance behaviors. At the November 2010 VA examination, he complained of memory problems. In this case, however, the VA examiners described the impact of these symptoms as mild to moderate. At the January 2009 VA examination, according to the VA examiner, the Veteran described moderate psychosocial functional status; the Veteran was working full-time, had good self-care and family-role functioning, and stable interpersonal relationships and recreational pursuits. At the October 2009 and November 2010, the Veteran was attending school part-time and working part-time. The September 2008, January 2009, October 2009, and November 2010 VA examinations, as well as VA treatment notes, reflect that the Veteran did not have impaired thought processes or communication, eye contact was good, and he was fully oriented and alert. There was no evidence of obsessive or ritualistic behavior, and speech was normal. He denied hallucinations and delusions, as well as denied suicidal or homicidal ideation. He did not report experiencing panic attacks, impairment in grooming, or inability to maintain activities of daily living. The October 2009 and November 2010 VA examiners noted that the Veteran's re-experiencing, avoidance, and arousal symptoms had mild to moderate impact on psychosocial functioning and moderate impact on academic functioning. The Board acknowledges that VA treatment notes indicate that the Veteran reported experiencing anxiety and panic attacks, but points out that all of the VA examination reports show that the Veteran consistently denied panic attacks, and did not endorse any associated symptoms upon mental status examination. Treatment records reflect that the Veteran had a flattened affect, but only mild anxiety. The VA treatment records from July 2011 also reflect that the Veteran had poor eye contact as he was uncomfortable communicating his feelings with the treating provider. In consideration of the foregoing, the Board has considered all of the Veteran's psychiatric symptoms in reaching its decision regarding entitlement to a higher rating, as they impact occupational and social impairment. The Board particularly notes that the Veteran's PTSD with depressive disorder has been consistently characterized as mild to moderate, and, despite sporadic complaints of panic attacks and assertions of unemployability, none of the VA examiners have found his PTSD with depressive disorder to cause any impairment in activities of daily living, including occupational impairment. Although the Veteran reported social isolation and difficulty concentrating due to sleep impairment, the evidence of record demonstrates that the Veteran worked part-time while attending school, was married and a father, and otherwise had stable psychosocial status. The November 2010 VA examination report that the Veteran remarried in February 2010, with one child at home; the Veteran reported that his marriage was doing okay, and that he maintained a good relationship with one close friend and a nephew. He also reported that he enjoyed hunting and fishing, but was limited in participating in these activities due to problems with his shoulders. The Board finds that the criteria for a disability rating of 70 percent have not been met or more nearly approximated for any part of the rating period on appeal. The evidence does not show that the Veteran experiences occupational and social impairment with deficiencies in most areas, and has not experienced obsessional rituals, near continuous panic or depression affecting the ability to function independently, impaired impulse control, or spatial disorientation, as contemplated by a 70 percent disability rating under Diagnostic Code 9411. As previously discussed, the Board acknowledges that the Veteran endorses panic attacks at his VA treatment appointments, but points out that the Veteran denied experiencing panic attacks at the VA examinations. Likewise, the Veteran had no suicidal ideation, and there is no indication upon screening that he is at risk of harm to himself or others. Additionally, the VA examiners assessed that the Veteran's service-connected PTSD with depressive disorder is as previously characterized and is productive of no more than moderate effects on his activities of daily living. For these reasons, the Board finds that a preponderance of the evidence is against an initial disability evaluation in excess of 50 percent for PTSD with depressive disorder for the entire period on appeal. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for PTSD with depressive disorder. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." See 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD with depressive disorder is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD with depressive disorder has manifested occupational and social impairment with reduced reliability and productivity due to such symptoms as a flattened affect, anxiety, depression, recurrent recollections, sleep impairment, and difficulty in establishing and maintaining effective social relationships. See Mauerhan, supra. These symptoms are part of the schedular rating criteria, or otherwise "like or similar to" the rating criteria. The GAF scores indicated by the DSM-IV, which are some evidence of the overall degree of occupational and social impairment, are incorporated as part of the schedular rating criteria. See 38 C.F.R. § 4.130. The disability rating schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. See 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] 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. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with PTSD with depressive disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial disability rating in excess of 50 percent for PTSD with depressive disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs