Citation Nr: 1303196 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 06-31 674A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from May 16, 2005, to February 22, 2010. 2. Entitlement to a rating in excess of 50 percent for PTSD from February 22, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from October 1942 to November 1945. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a August 2005 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD, evaluated as 10 percent disabling, effective May 16, 2005. During the pendency of this appeal, this disability evaluation has been increased to 30 percent, effective May 16, 2005, and to 50 percent, effective February 22, 2010. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDINGS OF FACT 1. Prior to February 22, 2010, the Veteran's PTSD was characterized by symptoms such as nightmares, flashbacks, irritability, anger, intrusive memories, hypervigilance, sleeping problems, heightened startle reflex, and avoidance, which resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. As of February 22, 2010, the Veteran's PTSD has been characterized by the above symptoms as well as visual hallucinations, suspiciousness of strangers/locking doors, and difficulty concentrating, which combine to result in occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Prior to February 22, 2010, the criteria for a disability rating in excess of 30 percent for PTSD were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.16, 4.130, Diagnostic Code (DC) 9411 (2012). 2. As of February 22, 2010, the criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.16, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice under the VCAA is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Examinations have been conducted that include findings necessary to apply the rating criteria. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis At the time of his July 2005 VA examination, the Veteran exhibited mild symptoms of PTSD, including nightmares once a month, memories of war losses that are triggered by funerals, avoidance of war movies, tearfulness when discussing his stressors, and irritability. While a veteran's rating on the Global Assessment of Functioning (GAF) scale is not dispositive, the Board notes that the examiner assigned the Veteran a score of 75 on the Global Assessment of Functioning (GAF) Scale, which indicates that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning. Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). VA treatment records from September 2005 note the Veteran's complaints that he had trouble with anger and, specifically, that he would sometimes lose control and get physical with people who angered him. Despite this, the Veteran displayed no suicidal or violent ideation. His mood was euthymic and his affect appropriate. He was alert, oriented, and attentive, without difficulty concentrating. He displayed no psychosis or formal thought disorder and reported no delusions or hallucinations. His judgment and insight were within normal limits. The VA social worker assigned him a GAF score of 45, which indicates serious symptoms or any serious impairment in social, occupational, or school functioning. See DSM- IV. At his initial psychiatric visit in November 2005, the Veteran reported symptoms of periods of depression, persistent irritability, quickness to anger, episodic insomnia, nightmares four or five times a month, intrusive recall, episodic flashbacks, hypervigilance, and heightened startle reflex. He reported that his irritability, anger, and intrusive recall had worsened with the Iraq war. The VA psychiatrist found the Veteran alert, fully oriented, neatly dressed and groomed, pleasant, verbal, and cooperative. His affect was mobile and appropriate. His mood ranged from sad and tearful to euthymic. There was no evidence of a thought disorder or cognitive impairment. His judgment was intact and he had no suicidal or homicidal ideations. He stated that he was surrounded by his family, in that his daughter and her family lived on his property. He reported attending a family Thanksgiving celebration with 14 relatives. In his December 2005 Notice of Disagreement, the Veteran reported experiencing depression on a regular basis and chronic sleep problems, including nightmares and flashbacks, that required medication. VA records dated from December 2005 to July 2006 show treatment for PTSD, including medication, which lessened his irritability and improved his sleep. In February 2006, the Veteran reported attending a squadron reunion one month prior. In July 2006, the Veteran expressed his disappointment that he could no longer horseback ride as he would like to take others on the trails he used to enjoy. In his October 2006 VA Form 9, the Veteran stated that he had daily anger issues, which he described as sometimes explosive; daily survivor guilt; depression that prevented him from participating in family and social gatherings; grief; sadness; hyper-alertness; startle response; flashbacks; anxiety; chronic sleep problems, including waking up three times per night; checking that the house is secure; and some nightmares, although not as often as before. VA outpatient treatment records from October 2007 note that the Veteran's nightmares had decreased with medication. His mood was euthymic and his affect full and appropriate. He denied suicidal and/or homicidal ideation. His thoughts were organized and goal oriented. His GAF score was reported as 65, which indicates some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. See DSM-IV. VA outpatient treatment records from April 2008 includes a mental status examination that found the Veteran's mood to be "pretty good" except when discussing WWII, then he became tearful. His speech was normal. He denied suicidal and homicidal ideation. His thoughts were organized and logical. He felt that his medication was helpful in controlling his depression and reducing his nightmares. A December 2008 VA treatment record contains a mental status examination. The Veteran was alert, oriented, and cooperative. His mood was okay and his affect was appropriate. His speech was coherent and relevant. His thinking was goal-directed with no bizarre content. He denied suicidal ideation. His recent memory and cognitive ability were fairly good. His judgment was fair. Insight was present. The Veteran's GAF score was again noted to be 75. On February 22, 2010, the Veteran underwent a VA examination in conjunction with this appeal. At that time, the Veteran reported no history of violence or assaultiveness. The Veteran stated that he was very close to his family and his daughter currently lived on one side of his ranch. He stated that his participation in leisure activities had declined since the death of his wife in 2001. The Veteran was fully oriented with good mood and normal affect. His speech, psychomotor activity, thought process, and thought content were unremarkable. He denied delusions, suicidal or homicidal ideations, and panic attacks. He reported nightmares once or twice a week and difficulty sleeping and visual hallucinations two or three times a week during which he "sees a shadow" in his peripheral vision and becomes fearful. His impulse control was good and he had no episodes of violence. The Veteran reported an incident several years prior (based on other records, this was around July 2007) in which a demented neighbor had tried to "move in" to his house and as a result, the Veteran frequently checks the locks on his doors and windows. This examiner noted that the Veteran's daily symptoms included avoidance of thoughts of war/experiences, problems with concentration, and suspiciousness of strangers/locking doors. His symptoms of loss of interest in pleasurable activities and avoidance of driving/over-stimulating activities occurred two or three times a week. Avoidance of strangers occurred once or twice a week and he experienced irritability once a week. As a result of his mood problems and PTSD symptoms, the Veteran experienced severe problems driving and shopping, and moderate difficulties travelling, exercising, and participating in other recreational activities. He was assigned a GAF score of 56, which represents moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV. This examiner found that the Veteran's symptoms resulted in deficiency in thinking and mood, but not judgment, family relations, or work. In December 2011, the Veteran underwent a VA examination in conjunction with this appeal. At that time, the Veteran reported symptoms that included flashbacks, nightmares, avoidance, intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event, difficulty falling or staying asleep, difficulty concentrating, markedly diminished interest or participation in significant activities, mild memory loss, depressed mood, and intermittent inability to perform activities of daily living. This examiner described the severity of the Veteran's PTSD as moderate. The Veteran reported strong and close family relationships with four generations of his family living on the ranch with him. The Veteran's work history includes 22 years at CalTrans followed by approximately 20 years of working on his ranch until 2002 or 2003. He stated that his symptoms of sleep problems/nightmares and associated fatigue were the primary way that his employment had been impacted by his PTSD. He did not experience many problems with interpersonal relationships due to his PTSD or related to anger management difficulties. 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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under that General Rating Formula, 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation 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 and maintaining effective work and social relationships. Id. The next higher evaluation of 70 percent 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 evaluation 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. Ratings are assigned according to the manifestation of particular symptoms. However, 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Id. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet App 119, 125-26 (1999). In an August 2005 rating decision, the RO granted service connection for PTSD, evaluated as 10 percent disabling, effective May 16, 2005. The Veteran appealed this evaluation and, in a September 2006 Statement of the Case, it was increased to 30 percent. Thereafter, the Veteran filed a VA Form 9 and perfected his appeal. During the pendency of this appeal, the Veteran's disability evaluation was increased to 50 percent, effective February 22, 2010. See February 2011 rating decision. As such, this initial disability evaluation has been staged. Below, the Board will address whether this or an alternate staging is most appropriate. Prior to February 22, 2010, the Veteran's recorded symptoms included nightmares, flashbacks, irritability, anger, intrusive memories, hypervigilance, sleeping problems, heightened startle reflex, and avoidance. These symptoms have generally been described as mild to moderate, which is reflected in the GAF scores of 75 and 65 recorded at the July 2005 VA examination and in VA treatment records from October 2007 and December 2008. The Board notes that the September 2005 VA treatment record suggests that the Veteran's PTSD resulted in physical altercations and assigned the Veteran a GAF score of 45, which is significantly lower than the scores recorded at other points during this period. Despite this reference to "getting physical" and the Veteran's lay description of his anger as "explosive," the remainder of the record specifically shows that he denied a history of violent outbursts or ideation. As such, the Board finds the September 2005 notation to be the outlier and, therefore, does not find that the low GAF score accurately reflects the Veteran's status during that time. The Veteran was retired during this period. The Veteran stated that his depression prevented him from participating in family and social gatherings, but the record indicates that he was close with his family--he attended a squadron reunion, and expressed an interest in spending time with others while horseback riding, which, unfortunately, his physical ailments prevented. In that way, the Veteran has shown an ability to establish and maintain relationships. As such, the Board finds the Veteran's occupational and social impairment to best be described as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, not reduced reliability and productivity. See 38 C.F.R. § 1.30, DC 9411. Thus, the Board finds that the Veteran's PTSD warranted no more than the assigned 30 percent evaluation prior to February 22, 2010. 38 C.F.R. § 4.7. As of February 22, 2010, the Board concludes that the preponderance of the evidence is against a claim of entitlement to an evaluation in excess of 50 percent. During this period, the Veteran's recorded GAF score dropped to 56, indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV. Notably, the Veteran reported additional symptoms that included visual hallucinations, suspiciousness of strangers/locking doors, and difficulty concentrating. Despite this, he was still able to maintain a close relationship with his extended family. The Veteran's mood varied from good to depressed and the presence of visual hallucinations indicates impaired thinking, but his family relations, judgment and work were not noted to be impaired. Thus, these additional symptoms suggest occupational and social impairment more likely to cause reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, as required for the next higher evaluation of 70 percent. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Therefore, the criteria for an evaluation in excess of 50 percent have not been met during this time period. See 38 C.F.R. § 4.7. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, which result in additional social or occupational impairment, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, the Veteran has raised this issue of unemployability. During the pendency of this appeal, the Veteran submitted a separate application for TDIU, which was denied in a January 2012 rating decision. Nevertheless, given the holding in Rice, the Board will address whether an award of TDIU based on the Veteran's PTSD is appropriate. Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. In this case, the Veteran's work history includes 22 years at CalTrans followed by approximately 20 years of working on his ranch until 2002 or 2003. See December 2011 VA PTSD examination. Thus, the Veteran has not worked during the pendency of this appeal. Although the Veteran has been unemployed, that unemployment alone is not enough to demonstrate unemployability. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Instead, the pertinent question is whether he is capable of performing the physical and mental acts required by employment. In that regard, the record does not include a medical finding that the Veteran is unemployable due to his PTSD during this period. Thus, the Board finds no basis upon which to remand this claim for extraschedular consideration in accordance with 38 C.F.R. § 3.321. The December 2011 PTSD examiner opined that the Veteran was not unemployable due to his PTSD. While noting that the Veteran's PTSD symptoms likely had a negative impact on his work history, his unemployment was likely more impacted by his age and physical limitations. Furthermore, the December 2011 General Medical examiner noted that the Veteran stated that he had to stop work in 2003 because of occasional benign paroxysmal vertigo and right foot drop, which caused him to stumble. The examiner ultimately attributed the Veteran's unemployability to non-service connected disabilities. As the record does not show that the Veteran is unemployable due to his service-connected PTSD at any time during the pendency of this appeal, a total rating based on unemployability is not warranted. ORDER A rating in excess of 30 percent for PTSD prior to February 22, 2010, is denied. A rating in excess of 50 percent for PTSD as of February 22, 2010, is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs