Citation Nr: 1303000	
Decision Date: 01/28/13    Archive Date: 02/05/13

DOCKET NO.  09-37 892	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE


Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The Veteran served on active duty from December 2003 to March 2005.

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The record shows that the Veteran failed to report for a scheduled hearing before a member of the Board without good cause.  Therefore, the hearing request is deemed to have been withdrawn.  38 C.F.R. § 20.704 (2012).

In March 2012, the Board remanded the claim for additional development.  The case has been returned to the Board for consideration.

Lastly, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran's PTSD more nearly approximates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks rather than reduced reliability and productivity.


CONCLUSION OF LAW

The criteria for rating in excess of 30 percent for PTSD are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant.  Pelegrini at 121.  Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006).

Here, the Veteran's claim arises from his disagreement with the initial disability rating following the grant of service connection for PTSD.  It has been held that once service connection is granted, the claim is substantiated and additional notice is not required.  Thus any defect in the notice provided to the Veteran is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Nevertheless, by letters dated in September 2008 (prior to the grant of service connection), the RO notified the Veteran of the evidence necessary to substantiate his claim for PTSD; the information that he needed to provide; and the information or evidence that VA would attempt to obtain.  Also, the RO provided the Veteran with notice of how VA assigns disability ratings and effective dates.

VA further has a duty to assist.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  That is, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  Here, VA obtained all relevant records and associated these with the claims file, to include a copy of the Veteran's vocational rehabilitation folder.  VA provided the Veteran with an appropriate VA examination.

The case was previously remanded in March 2012 for development to include a VA examination.  A VA examination was conducted in April 2012.  The Board finds that the VA examination report described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).  Therefore, the Board concludes that there was substantial compliance with the directives contained in the Board's prior remand decision.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Evaluation of PTSD

The Veteran seeks an initial evaluation in excess of 30 percent for PTSD.  He argued in his substantive appeal that a higher rating was warranted for PTSD because he "recently lost employment, in part, due to this condition."

General Legal Criteria

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two 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.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. § 4.14.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Evaluation of PTSD

PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  The rating criteria provide that a 30 percent evaluation 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; mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411.

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; difficulty in establishing effective work and social relationships.  Id.

A 70 percent rating is warranted for 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 rating is warranted 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.  Id.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation 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.  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.

The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on a scale reflecting the, "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness."  Richard v. Brown, 9 Vet.App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32).  A score of 51-60 is assigned where there are 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, conflict with peers or co-workers).  GAF scores between 61 and 70 reflect 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.  Id.

Analysis

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 30 percent for PTSD.  Neither the lay nor the medical evidence of record more nearly approximates the criteria for a 50 percent or higher disability evaluation.  38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411.

Report of VA examination dated in October 2008 reflects that the Veteran was married and employed.  His symptoms included short temper, impatience, intrusive memories, avoidance of large crowds, sense of detachment and distance, increased arousal with difficulty falling asleep, and nightmares.  The Veteran reported that his nightmares may not occur for 2 to 3 weeks, but then he will have them every night for a week.  The Veteran reported that he often goes fishing or hunting with his brother to "get away from news and people asking questions."  He reported edginess, anxiousness, and being more vigilant.  He reported getting 4 to 6 hours of sleep a night.  He reported yelling at coworkers if he thinks they are moving too slowly or not doing things correctly.  He reported yelling at his wife about a meal.  The Veteran indicated that he had been married twice, and lived with his current wife.  He has a son from his first marriage and visitation rights (2 nights a week and every other weekend).  His social network consisted of his wife, parents, brothers, and a few friends from work.  He reported fishing and bow hunting with his brother.  He reported that he occasionally, 2 to 3 days a month, did not want to socialize.  The Veteran indicated that he worked for a local contractor in construction-mostly demolition and concrete.  He reported missing 2 to 3 days a month earlier in 2008 because he could not get out of bed and had trouble focusing when at work.

Mental status evaluation showed that he presented early, appropriately dressed and groomed.  He was fully oriented.  Speech was within normal limits.  There was no impairment of thought process, immediate memory, and concentration.  Affect was confined to expressions of worry and sadness, with a few brief moments of tearfulness.  Affect appeared to be mood congruent.  There was no sign of psychosis.  The Veteran denied suicidal and homicidal ideation.  His daily activities involved working Monday through Friday, spending week nights home with his wife, and caring for his son Tuesday and Thursday evenings.

The examiner assigned a GAF of 60, noting moderate symptoms of daily intrusive thoughts, sleep disturbance, mood and behavior disturbance in the form of agitation and irritability, and affective detachment.  The Veteran reported impaired performance on the job and lack of focus and motivation to do household work, relying on his wife to care for him.

VA treatment records dated in 2008 reflect similar complaints although a slightly lower GAF of 55 was assigned in August 2008.  A private medical report dated in May 2007 reflects that the Veteran was seen for nightmares possibly due to PTSD and prescribed Trazodone, which was effective for him.  VA treatment records dated in 2009 and 2010 reflect that the Veteran had therapy sessions for PTSD with nightmares and depression symptoms.  He reported improved symptoms.  A March 2010 VA treatment note shows that he had tried on Zoloft, which made him jittery, and Trazadone, which made him too sedated.  At this time, he reported recurrence of nightmares, flashbacks, emotional numbing, avoidance of reminders, hypervigilance, depression and panic symptoms.  It was noted that depressive symptoms come and go, lasting for 4 weeks at a time.  He reported depressed mood but denied suicidal ideation.  He reported situational anxiety that occurs only in crowded places, at most, weekly.  Mental status evaluation reflects abnormal gait/posture, sad appearance, slowed motor activity, depressed mood and flat affect, and delusions/hallucinations of odors and sounds of gunshots.  Current GAF was 55 and last GAF was 62.

Report of VA examination dated in April 2012 reflects a diagnosis for PTSD with a GAF score of 58.  It was noted that the Veteran had worked construction as a laborer in October 2008; he was laid off in September 2009; he obtained another construction job in May 2010 that ended in August 2010; he obtained another job in September 2010 and was laid off in November 2010; and thereafter he entered the VA vocational rehabilitation program.  The Veteran indicated that he attended school and was working towards a degree in applied science with a focus on biology; he described his grades as good (3.5 grade point average) and reported getting along with his teachers and other students.  The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The Veteran speculated that he may have been laid off in the past because of frequent lateness to work, and he noted that he was often late to school as well.  His PTSD symptoms were anxiety, chronic sleep impairment (nightmares), flashbacks, avoidance of reminder or stimuli of Iraq, and a self-described "short fuse."  The Veteran reported that he become irritable if another person is not doing their job or performing it slowly.  The examiner opined that the Veteran was employable, noting that he was applying himself to his studies in school and had plans for a career thereafter.  The examiner noted that the Veteran participated in the life of his family and enjoyed recreational activities.

The PTSD symptoms reported by the Veteran and found on examination do not more nearly reflect the frequency, severity or duration of symptoms required for a higher evaluation.  38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411.  The Board acknowledges the evidence showing depression and disturbances of mood; however, this has not caused occupational and social impairment with reduced reliability and productivity.  The record shows that the Veteran has had fairly steady employment during the appeal period or participated in vocational rehabilitation with school attendance at a local community college.  While the Veteran speculates that he was laid off because of frequent lateness, he was able to obtain new employment after each lay off in the same industry and later begin a program of studies at a local community college.  The Veteran's ability and to pursue a college degree do not reflect the severity or frequency of disturbances of mood necessary for the next higher rating.  The occasional inability to get out of bed to go to work or lateness to work/school is not the degree of impairment contemplated by the next higher rating.

The Board acknowledges that March 2010 VA treatment note shows a worsening of symptoms, with a GAF score for 55; however, the record as a whole suggests that this was not a permanent increase in symptoms.  The record demonstrates that the Veteran functions well occupationally and socially-he had been gainfully employed during the appeal period and there is no indication that employment was terminated due to PTSD symptoms; the record shows that Veteran attends school, has good grades, and plans on a career; and the Vet reran reported meaningful family interaction to include recreating with his brother and caring for his child.  The GAF scores in the 60s on both VA examinations prior to and after the March 2010 treatment note further supports that the increased symptoms and complaints on this visit were transient and not permanent.

Also, while the evidence shows that the Veteran has anxiety, sleep disturbances, and avoids crowds, his anxiety has been characterized as situational and these symptoms appear not to have impacted his ability to obtain work after layoffs, enter vocational rehabilitation, attend school, earn good grades, and spend time with family.  His anxiety symptoms are not consistent with panic attacks more than once a week.  Neither the lay nor the medical evidence reflect that these symptoms have caused him to regularly miss work or school, or more than an occasional decrease in work efficiency.

While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Here, although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the requirements for higher rating than currently assigned.

The Board assigns greater probative value to report of VA examination dated in April 2012, which found that the Veteran's symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks, but that he otherwise generally functioning satisfactorily.  The opinion of the VA examiner is highly probative as it was prepared by a skilled, neutral medical professional after interview of the Veteran and mental status evaluation.  The evidence shows that the Veteran has normal behavior with the exception of some hypervigilance, depression, and anxiety.  There is no impairment of thought content or processes, speech, communication, judgment, memory, or concentration.  The Veteran's symptoms and the medical findings do not more nearly reflect occupational and social impairment with reduced reliability and productivity.  38 C.F.R. § 4.7.

Accordinlgy, the claim is denied and there is no basis for a staged rating.  See Fenderson, supra.  As the evidence of record is not in equipoise, there is no doubt to resolve.  Gilbert, supra.

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a).  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  In this case, the record reflects that the manifestations of the disability are specifically contemplated by the schedular criteria.  Also, the evidence shows that the Veteran has not required frequent periods of hospitalization or lost extended periods of time from work due to his condition.  Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order.  Thun, supra. at 115 (2008).


ORDER

An evaluation in excess of 30 percent for PTSD is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs