Citation Nr: 1301963 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-04 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to March 1982. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas that granted service connection for PTSD and assigned a 10 percent rating effective May 31, 2007. A subsequent September 2009 rating decision increased the rating to 30 percent, effective May 29, 2009. The Veteran testified during two hearings at the RO; the first before a Decision Review Officer (DRO) in September 2008 and the second before the undersigned in February 2011. Transcripts of those hearings are associated with the claims file. At the second hearing, the Veteran submitted additional evidence with a waiver of initial agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2012). In an October 2011 decision, the Board increased the initial disability rating for PTSD to 30 percent for the period from May 31, 2007 to May 29, 2009 and denied a rating in excess of 30 percent for the entire appeal period. Other issues were remanded to the AOJ. The Veteran appealed the denial of a rating in excess of 30 percent for PTSD. In June 2012, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand regarding this issue. Although the joint motion for partial remand directed that both the increase in the initial disability rating to 30 percent and the denial of a rating greater than 30 percent should be vacated, the Court's order only remanded the portion of the Board's decision that denied a rating in excess of 30 percent for PTSD. As such, the remaining issue is as stated on the title page. FINDING OF FACT Since the grant of service connection for PTSD, that disability has been manifested by nightmares, occasional depression, sleep disturbance, some social isolation, avoidant behavior, anger, some hypervigilance, irritability, exaggerated startle response, and feeling uncomfortable in crowds; which is productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. The Veteran is challenging the initial evaluation assigned following the grant of service connection for PTSD. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases in which 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. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2012). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. In any event, a June 2009 letter provided the Veteran with notice regarding what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. A January 2009 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating; while July and August 2010 supplemental SOCs (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, and hearing testimony. The Veteran underwent VA examinations in February 2008 and July 2009. These examinations are found to be adequate in so far as they thoroughly and accurately portray the extent of the Veteran's PTSD. They were each conducted after a review of the claims file and with a history obtained from the Veteran. The examiners also performed and recorded mental status examinations. Therefore the Board finds that the Veteran has been provided adequate medical examinations in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one). The Veteran was provided an opportunity to set forth his contentions on his claim for an increased initial rating for PTSD during the February 2011 hearing before the undersigned. The Court has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the February 2011 hearing the undersigned explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, 19 Vet. App. at 490-91; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's PTSD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, as 30 percent disabling. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and/or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Higher 70 and 100 percent ratings are available where symptoms reflect greater levels of occupational and social impairment. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather 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). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2012). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A GAF score of 61 to 70 indicates some mild symptomatology (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, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect 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). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Turning to the evidence, the Veteran has been afforded two VA PTSD examinations. During the first examination in February 2008, the Veteran complained of having occasional nightmares and occasionally being startled by loud sounds. He reported that most of his socializing is with family members. He had retired from employment as a helicopter pilot in February 2007. He attributed his retirement to his health problems of diabetes and hypertension that might have made it difficult for him to pass a physical. Mental status examination revealed the Veteran to be casually groomed. The Veteran was cooperative. He did not display significant anxiety or dysphoria. His speech was within normal limits with regard to rate and rhythm. The Veteran's mood was generally euthymic and his affect was appropriate to content. His thought processes and associations were logical and tight with no loosening of associations or confusion. His memory was grossly intact and he was oriented to all spheres. The Veteran did not report hallucinations and no delusional material was noted; he denied suicidal and homicidal ideation. Insight and judgment was adequate. There was no impairment in thought process or communication. The examiner diagnosed chronic PTSD and assigned a GAF score of 60. According to the examiner, the Veteran's symptoms appeared to be mild. He noted that he did not find evidence that PTSD symptoms would preclude employment. During the second examination in July 2009, the Veteran complained of initial insomnia and nightmares about twice a week. He also relayed that he did not like crowds and had some startle response. He was married for the last 28 years and had multiple grown children and grandchildren. According to the Veteran, he and his wife enjoyed going on cruises. Although he had retired from his job two years previously, he was looking for part-time work. His PTSD symptoms did not preclude activities of daily living. Mental status examination revealed the Veteran to be casually groomed with good eye contact. The Veteran was cooperative. His speech was within normal limits regarding rate and rhythm. Mood was slightly depressed and affect was appropriate to content. His thought processes and associations were logical and tight with no loosening of associations or confusion. The Veteran was oriented to all spheres with no evidence of delusions or hallucinations. Insight and judgment were adequate, and there was no impairment in thought process or communication. The Veteran denied suicidal and homicidal ideation. The examiner diagnosed chronic PTSD and assigned a GAF score of 57. The examiner opined that the Veteran's PTSD was mild to moderate in severity and the symptoms would not preclude gainful employment or have a significant impact on his social functioning or behavior. April 2007 to January 2011 treatment records reflect findings similar to those made by the VA examiners. VA mental health clinic notes describe the Veteran as casually dressed, groomed, and cooperative; his speech as spontaneous, without delay, and at a good rate, rhythm, tone, volume, and fluency; his thought process as coherent, logical, goal-directed, and linear; and his insight and judgment as grossly intact. In June 2008, the Veteran's affect was described as mildly restricted and in August 2009 and September 2009 it was described as restricted. On most other occasions, however, including in September 2007, July 2009, December 2009, and July 2010, his affected was described as euthymic, stable, congruent, good range, at ease, tense, angry, full, full range, and slightly dysphoric. During his hearing before the undersigned, the Veteran reported experiencing nightmares. Board Hearing Tr. at 16. He denied thoughts of suicide or homicide, panic attacks, memory impairment, and depression. Id. at 16, 19-20. Regarding the symptoms demonstrative of a higher 50 percent rating, the evidence reflects that the Veteran does not have symptoms such as 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; or impaired abstract thinking. Speech was noted to be within normal limits and there was reportedly no impairment in communication. Likewise, there was no impairment in thought process, no reported panic attacks, and insight and judgment were adequate. Although the Veteran was slightly depressed at the July 2009 VA examination, a depressed mood is considered demonstrative of a 30 percent rating. See 38 C.F.R. § 4.130. As noted, VA treatment records in June 2008, August 2009, and September 2009 reflect a mildly restricted and restricted affect; however, on most other occasions, his affect was described as euthymic, stable, congruent, good range, at ease, tense, angry, full, full range, and slightly dysphoric. At both VA examinations his affect was described as appropriate to content. Overall, the evidence shows that the Veteran's affect has not caused him occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. With respect to establishing and maintaining relationships, although the Veteran has reported some social isolation, the Veteran has been married for over twenty-eight years, he enjoys going on cruises with his wife, they go out to restaurants, and he socializes with family members. As the Veteran was not working at the time of his VA examinations his work relationships were not addressed. Therefore, his symptoms do not reflect a difficulty in establishing and maintaining effective social relationships. The Board recognizes that none of the demonstrative symptoms have to be present to assign a higher rating for PTSD. See Mauerhan, 16 Vet. App. 436. Ultimately, the Board must determine whether the Veteran's overall disability picture more nearly approximates 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) (30 percent) or occupational and social impairment with reduced reliability and productivity (50 percent). See 38 C.F.R. §§ 4.7, 4.130. In this case, the lay and medical evidence reflects that the Veteran's PTSD is productive of nightmares, occasional depression, sleep disturbance, some social isolation, avoidant behavior, anger, some hypervigilance, irritability, exaggerated startle response, and feeling uncomfortable in crowds. VA examiners and medical practitioners have described the overall PTSD symptomatology as mild to moderate in severity. Their findings indicate that the Veteran has normal routine behavior, self-care, and conversation. Importantly, the July 2009 VA examiner opined that the Veteran's symptoms did not have a significant impact on his social functioning or behavior. VA practitioners have described the Veteran as cooperative, which also suggests normal behavior. They have not described any abnormal behavior displayed by the Veteran or reported by the Veteran. In fact, an individual therapy note in September 2010 specifically notes that there was no evidence of behavioral disturbances. The February 2008 and July 2009 VA examiners noted that the Veteran had no impairment in communication and multiple practitioners have described normal speech and thought content. This is reflective of normal conversation. The Veteran was also described as casually dressed and groomed which suggests that his self-care was not out of the ordinary. In July 2009, the VA examiner noted that the Veteran's PTSD symptoms do not preclude his activities of daily living, again suggesting that self-care was normal. Thus, the medical evidence indicates that the Veteran has normal behavior, self-care, and conversation. Such symptoms are most nearly approximated by a 30 percent disability rating and no higher. See 38 C.F.R. § 4.130. The GAF scores assigned during the appeal period range from 57 to 65. These scores represent mild to moderate symptomatology or some to moderate difficulty in social, occupational, or school functioning. GAF scores in this range are not in conflict with the assignment of a 30 percent disability rating. The Veteran's lay statements also do not indicate that a higher rating is warranted. In fact, October 2009 and September 2010 statements from the Veteran reflect that he agreed with a 30 percent rating for PTSD and that he agreed with the amount he was being paid for his PTSD. In another September 2010 statement the Veteran relayed that he was not arguing the disability percentage for PTSD. During his hearing with the undersigned, the Veteran testified that his PTSD has not changed and has been at the same level for years. Board Hearing Tr. at 17. He relayed that his biggest PTSD problem is nightmares. Board Hearing Tr. at 15; DRO Hearing Tr. at 8. The Veteran has also reported that he and his wife socialize with people and visit relatives and that he likes to fish, travel, and hunt. DRO Hearing Tr. at 9. He also reported some hypervigilance by checking his windows and locks every night. Id. Essentially, the Veteran's lay testimony indicates that he has problems with nightmares and that he does not have social impairment that would more nearly approximate social impairment with reduced reliability and productivity. This evidence is similar to the medical findings and does not support the assignment of a rating in excess of 30 percent for PTSD. In summary, the lay and medical evidence indicates that the Veteran's PTSD is productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Thus, a rating in excess of 30 percent for PTSD is not warranted. See 38 C.F.R. § 4.130. The Board has also considered whether the Veteran's PTSD presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. It is noted that the symptoms listed in the rating criteria are demonstrative and not exhaustive; thus, the rating criteria actually consider many other psychiatric symptoms. See Mauerhan, 16 Vet. App. 436; see also 38 C.F.R. § 4.130. Overall, the occupational and social impairment caused by the Veteran's PTSD, as described above, are accounted for by the rating criteria. Thus, the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An initial disability rating in excess of 30 percent for PTSD is denied. ____________________________________________ M. Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs