Citation Nr: 1303665 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 12-03 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1950 to September 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO granted service connection for PTSD evaluated as 30 percent disabling, effective February 28, 2011. The Veteran expressed disagreement with the assigned rating. This matter was previously before the Board in June 2012, at which time it was remanded for further development. It is now returned to the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note 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). FINDING OF FACT The Veteran's PTSD has been 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 disability rating in excess of 30 percent for service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that 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); 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). An April 2011 letter fully satisfied the duty to notify provisions. This letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates. 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, additional notice is not required and any defect in the notice is not prejudicial. 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. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, VA treatment records, and Vet Center records have been obtained. Although the Veteran reported that he attends group sessions at the Vet Center, a March 2005 letter from the Vet Center indicates that the Veteran attended 1 individual session, 0 group sessions, and that he failed to make his future appointments. In June 2012 the Board remanded this matter for the RO/AMC to obtain VA treatment records from February 2012 to the present, noting that in his February 2012 substantive appeal, the Veteran indicated that he was to be evaluated by a VA psychologist in the near future and requested these records be obtained and associated with his file. The RO/AMC has substantially complied with these remand instructions and the updated VA treatment records from March 2012 to September 2012 are of record. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Veteran was afforded VA examinations for his PTSD, most recently in May 2011. This examination is adequate because it is based on consideration of the Veteran's prior medical history, and described his PTSD disability in sufficient detail to enable the Board to make a fully informed evaluation of this disability. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). 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). Laws and Regulations Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. For claims for an increase that rises out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has found no probative evidence of record that would warrant a staged rating for this increased rating claim. There are no identifiable periods of time, since the effective date of service connection, during which this condition has been shown to be disabling to a higher degree than assigned, and thus higher "staged ratings" are not warranted. In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's PTSD has been rated pursuant to the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under that code, evaluations may be assigned ranging between 0 and 100 percent. Under DC 9411, 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 rating is warranted under DC 9411 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 difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when PTSD causes 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 work-like setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is assigned for PTSD that causes 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. The Global Assessment of Function (GAF) score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240 (1995). According to DSM-IV, a GAF score of 71 to 80 indicates the examinee has, if at all, symptoms that are transient or expectable reactions to psychosocial stressors but no more than slight impairment in social, occupational or school functioning. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. A GAF score of 31 to 40 indicates the examinee has some impairment in reality testing or communication or major impairment in several areas, such as work or school. A GAF score of 21 to 30 indicates that the examinee's behavior is considerably influenced by delusions or hallucinations, has serious impairment in communication or judgment, or is unable to function in almost all areas of life. A GAF score is highly probative as it relates directly to the 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). In this case, the Veteran's service-connected PTSD is currently rated as 30 percent disabling. For the reasons explained in greater detail below, the Board finds that a 50 percent or greater disability rating is not warranted. During the May 2011 VA examination, the Veteran reported that he experiences intrusive thoughts, nightmares, flashbacks, distress on exposure to reminders, anger, irritability, personality changes, depression, poor sleep, and avoidance. The May 2011 VA examiner described the Veteran as casually dressed and oriented to time, place, and purpose. The Veteran was initially tense and guarded, but eventually became cooperative. The examiner described the Veteran's affect as tense and restricted which is congruent with the isolative stand and depressed mood reported by the Veteran. The depressed affect does not affect the Veteran's ability to function independently. He denied impaired impulse control, unprovoked irritability, and periods of violence. He did not demonstrate circumstantial, circumlocutory, or stereotyped speech. The Veteran denied panic attacks, delusions, hallucinations, or obsessive rituals. He showed normal thought processes, no impaired judgment or impaired abstract thinking and demonstrated normal memory. The Veteran demonstrates avoidance of stimuli associated with his traumatic event. The Veteran claims that he tries not to think or talk about his time in Koreas since it makes him depressed. Consequently, he avoids conversations, reunions, events, and activities which imply a remembrance. He was noted to be able to establish and maintain effective work relationships, but not social relationships. A GAF score of 40 was assigned. The best GAF in the past year was 50. In a May 2011 statement, the Veteran stated that he relives the traumatic events in his dreams. He reports to wake up in a depressed mood and that he gets in conflict with people "over nothing." The Veteran reports that a sound or smell can trigger him to re-experience the trauma. A VA medications list from April 2012 indicates that the Veteran was prescribed medications for anxiety. At VA treatment in April 2012, the Veteran was noted to have an "altered mental status." This evidence demonstrates that the Veteran has PTSD symptoms resulting in occupational and social impairment deficiencies manifested as depressed mood, anxiety, and chronic sleep impairment. Accordingly, a 30 percent disability rating is warranted. In order to warrant a 50 percent disability rating for PTSD, the evidence must demonstrate occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. While not minimizing the Veteran's PTSD symptomatology, the records indicate the only symptom the Veteran experiences that corresponds to a 50 percent disability rating is difficulty in establishing and maintaining social relationships. Although the Veteran has not been shown to satisfy most of the criteria for a 50 percent rating, he is not required to. Rather, what is required is that the evidence shows that he suffers symptoms or effects that cause occupational or social impairment with reduced reliability and productivity. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). By considering the evidence of record, the Veteran's symptoms more closely approximate the criteria for a 30 percent disability rating. The criteria for the next higher rating of 50 percent have not been met or approximated for any period in this appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Considerations has also been given to a rating of 70 percent and 100 percent for the Veteran's PTSD, but the Board finds that such a rating is not warranted. The Veteran denied suicidal or homicidal ideation. Moreover, the Veteran does not show symptoms such as 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; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. Also, the evidence does not show that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a 70 percent or 100 percent rating. Mauerhan v. Principi, 16 Vet. App. at 442-43. Additionally, the Board observes that the Veteran has been assigned a GAF score of 40 at the May 2011 VA examination. It was noted the Veteran had a best GAF score of 50 the previous year. As noted above, a GAF score from 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. A GAF score from 31 to 40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school. The most recent GAF scores establish that there is occupational and social impairment, and are consistent with the currently assigned 30 percent disability rating. Although a GAF of 40 was assigned, such evidence is just one factor to be considered. Here, we find the clinical observations of the examiner to be more probative than the GAF that was provided. The Board has also considered the pleadings and lay evidence. The pleadings are non-specific and do not provide a basis for a higher evaluation. We find his reports to the examiner to be credible; thus resulting in the grant of service connection and the 30 percent evaluation. However, even when accepted as credible, the lay evidence does not provide a basis for a higher evaluation. Accordingly, and based on evidence, the Board must conclude that a rating greater than the currently-assigned evaluation of 30 percent for the Veteran's service-connected PTSD is not warranted. The Board is aware that an extraschedular rating is a component of an increased rating claim. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected PTSD presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The criteria pertaining to PTSD in the Rating Schedule focus on psychiatric symptoms which interfere with occupational and social functioning. As discussed above, such symptomatology describes the Veteran's current disability picture. Thus, the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. In summary, after a thorough review of all evidence, the Board finds that the preponderance of the evidence is against the claim for an initial higher rating for PTSD. As such, the benefit of the doubt doctrine is not applicable and the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 54-56 (1990). ORDER Entitlement to an initial rating in excess of 30 percent for service-connected PTSD is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs