Citation Nr: 1304258
Decision Date: 02/06/13	Archive Date: 04/10/13

DOCKET NO. 07-03 749	)       DATE FEB 06 2013

On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut

THE ISSUE

Entitlement to an (increased) initial disability rating in excess of 50 percent since February 1, 2009, for posttraumatic stress disorder (PTSD).

REPRESENTATION 

Veteran represented by:     Disabled American Veterans

ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1967 to June 1969.

This appeal before the Board of Veterans' Appeals (Board) arises from a May 2000 rating decision of the Hartford, Connecticut, U.S. Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted the Veteran's claim of entitlement to service connection for PTSD, evaluated as 10 percent disabling, effective from October 6, 1999. The Veteran perfected a timely appeal that challenged the initial 10 percent rating assigned for this disability. See Notice of Disagreement, dated June 2000; Statement of the Case (SOC), dated January 2001; Substantive Appeal, dated March 2001.

In a March 2006 rating decision, the RO increased the disability rating for the Veteran's PTSD from 10 percent to 30 percent disabling, effective from July 7, 2005. By a March 2009 rating decision, the RO increased the disability rating to 50 percent disabling, effective from July 7, 2005. In doing so, the RO assigned separate periods of time for different levels of compensation during the course of the Veteran's appeal - a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Since higher schedular ratings at each of the stages are available, the claim for an (increased) initial rating for PTSD remained on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993).

The Veteran presented testimony before a decision review officer at the RO in March 2007. A transcript of the hearing is of record.

In March 2010, the Board remanded the appeal to the RO for additional development.

The appeal was then returned to the Board in September 2011. In a decision issued that same month, the Board granted the Veteran an increased (initial) disability rating of 30 percent for his PTSD for the period from October 6, 1999, to July 6, 2005. The Board then denied the Veteran an increased (initial) disability rating in

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excess of 50 percent since July 7, 2005. A September 2011 rating decision implemented the Board's above decision.

The Veteran appealed the Board's September 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012, the Court granted a joint motion to remand (JMR) agreed upon by the Veteran and the Secretary of VA. The portion of the Board's September 2011 decision denying a disability rating in excess of 50 percent since February 1, 2009, was vacated, and the claim was remanded back to the Board. The other disability ratings discussed in the Board's September 2011 decision were left intact; and as such, that portion of the Board decision is considered the law of the case and will not be disturbed. Cf. Chisem v. Brown, 8 Vet. App. 374 (1995) (mandate of higher court is the "law of the case" and must be followed).

The Veteran's Virtual VA records were also reviewed and considered in preparing this remand.

The information of record reveals that, at the June 2005 Board hearing, the Veteran raised the issue of entitlement to service connection for a right eye disability, as secondary to the service connected diabetes mellitus. Since this discrete issue has yet to be developed and adjudicated by the RO, it is not a part of the current appeal and is referred to the RO for appropriate action.

FINDING OF FACT

The clinical signs and manifestations of the Veteran's PTSD more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, since February 1, 2009.

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CONCLUSION OF LAW

The criteria for an initial 70 percent rating, but not higher, for PTSD have been met, since February 1, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty 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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran 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, 3.326(a) (2012).

The claim for a higher initial rating for PTSD arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).

The Court has elaborated that filing a NOD begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the veteran bears the burden of

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demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case.

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 has obtained records of treatment reported by the Veteran, including service treatment records (STRs) and VA treatment records. Additionally, the Veteran was provided proper PTSD examinations in February 2009 and March 2010 for his claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). There is no indication that his service-connected PTSD has worsened since the date of the most recent examination, and hence an additional examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC11-95 (1995), 60 Fed. Reg. 43186 (1995); cf. Snuffer v. Gober, 10 Vet. App. 400,403 (1997).

The March 2010 VA examination report also reflects review of the claims file by the examiner and is in compliance with the January 2010 Board remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 106 (2008).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits.

Laws and Regulations

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

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(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 (2012).

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 evaluation will be assigned. 38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012).

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disability. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

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 a rating 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. 38 C.F.R. § 4.126(a) (2012).

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When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b).

The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2012).

PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders.

Under the General Rating Formula, a 50 percent disability rating is warranted when there is 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.

A 70 percent disability rating is warranted when there is 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); and, inability to establish and maintain effective relationships.

A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes

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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; and memory loss for names of close relatives, own occupation, or own name.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436,442-43 (2002). On the other hand, if the evidence shows 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 diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

The Global Assessment of Functioning (GAF) score is 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 GAF score of 41-50 is assigned where there are "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score of 51-60 rating indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id.

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Factual Background

A review of the record evidence dating from January 2008 reflects that the Veteran underwent a VA PTSD examination in February 2009. At that time, the Veteran reported that he continued to work. However, he missed 10 or 12 days during the past year due to PTSD symptoms. At work, he occasionally had irritability and frustration. He complained of fatigue associated with his depressed mood and concentration difficulties. He also had occasional panic attacks due to fear of enclosure in small spaces. These panic attacks began about six years ago after flying. The examiner noted the Veteran was enrolled in school and had difficulties due to poor concentration and sleep disturbances. He also noted difficulties in the Veteran's marital and family relationships due to his restricted emotions. The Veteran reported going to dinner once a month and seeing movies a few times per year. Otherwise, he had no social activities.

The examiner noted the following recurring PTSD symptoms: intrusive thoughts, nightmares, flashbacks, avoidant behavior, concentration problems, hypervigilance, emotional detachment, and irritability. The Veteran had not taken medication and did not desire to do so. He previously sought private psychotherapy, but stopped due to his work and school schedule. He thought his declining physical condition exacerbated his PTSD symptoms. The examiner commented that the Veteran has a high level of intrapsychic distress. He noted that there were few days the Veteran was asymptomatic, but he usually has moderate PTSD symptoms. Overall, he assessed the Veteran's occupational capabilities as moderately impacted and his social capabilities as greatly impacted. He also commented that the Veteran's thought processes were impaired due to poor concentration and memory, which resulted in occupational and scholastic difficulties. He diagnosed PTSD and panic disorder with agoraphobia. He assigned a GAF score of 55 for moderate to serious impairment in social and occupational functioning.

The Veteran was reexamined by VA in March 2010. The examiner reviewed the claims file and interviewed the Veteran. The Veteran affirmed having a depressed mood, anxiety, nervous tic of his left eye, and claustrophobia. He described his

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marriage as "pretty good" although his wife was concerned about his withdrawn behavior. He kept in semi-regular contact with his adult children living away from home. He had relationship difficulties with his teenage son living at home, but attributed it to his son's age. His recreational activities were limited to watching TV. He wanted to be more social, but poor motivation and fatigue prevent him from doing so. He still continued to avoid crowds and to have sleeping problems and claustrophobic symptoms.

Psychological examination showed that the Veteran had a good general appearance and communication abilities. He had a dysphonic mood. He was oriented to time, place, and person, but had a short attention span. Thought process and content were unremarkable. No hallucinations, delusions, or ritualistic behaviors were observed, nor were any homicidal or suicidal ideations. The Veteran reported significant sleeping difficulties with nightmares. He had panic attacks while being in enclosed spaces. The examiner judged the Veteran's impulse control to be good. Regarding daily activities, the examiner noted the Veteran's memory difficulties interfere with driving and his anxiety interferes with shopping. He found the Veteran's remote memory to be normal, but assessed recent and immediate memory as mildly impaired.

The examiner noted the following specific PTSD symptoms: intrusive thoughts, avoidant behavior, emotional withdrawal, and increased arousal. He remarked that the Veteran was concerned about taking a professional licensing examination to further his career and about difficulty performing administrative tasks due to his memory problems. The examiner diagnosed PTSD and a panic disorder with agoraphobia. He assigned a GAF score of 50. He also commented that the symptoms presented were similar to those noted in February 2009 VA examination report. The Veteran continued to have panic attacks, social isolation, and more social difficulties, rather than occupational difficulties. The examiner expressed concern that the Veteran's concentration and memory problems may pose problems in passing his professional licensing examination. The examiner cited difficulties with this occupational test and the deteriorating relationship with the Veteran's teenage son as the rationale for lower the GAF score to 50.

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Analysis

The Veteran is in receipt of an initial rating of 50 percent since February 1, 2009, for his PTSD. He contends that a higher initial rating is warranted.

After careful consideration of all evidence, the Board finds that a 70 percent initial disability rating for the service-connected PTSD, but no higher, is warranted since February 1, 2009. In this respect, the credible lay and medical evidence shows that the Veteran's service-connected PTSD has resulted in occupational and social impairment with deficiencies in areas such as work, family relations, thinking and mood. 38 C.F.R. § 4.130, DC 9411.

Findings of social impairment were made at the February 2009 and March 2010 VA examinations. Notably, at the February 2009 VA examination, the Veteran stated that he had few social activities, and reported difficulties in his marital and family relationships due to his restricted emotions. The examiner found that the Veteran displayed emotional detachment. The February 2009 examiner assessed the Veteran's social capabilities as greatly impacted by his PTSD, and assigned a GAF score of 55. Similarly, at the March 2010 VA examination, the Veteran described his social activities as watching TV and nothing else. He avoided crowds, as he experienced panic attacks when in enclosed spaces. He reported that his wife was observant of his withdrawn behavior and he had only a "semi-regular" relationship with his children. The March 2010 VA examiner found that the Veteran displayed avoidant behavior, emotional withdrawal, and social isolation. His anxiety also interfered with his shopping. The examiner lowered the Veteran's GAF score to 50 for serious symptoms, citing, in pertinent part, the Veteran's memory difficulties as causing deterioration in his relationship with his teenage son.

Findings of occupational impairment were also made at the February 2009 and March 2010 VA examinations. Notably, at the February 2009 VA examination, the Veteran reported missing work due to his PTSD, and experiencing irritability and frustration on the job. The Veteran also described panic attack, fatigue, and concentration problems. The February 2009 VA examiner assessed the Veteran's

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occupational capabilities as moderately impacted by his PTSD. The examiner found that the Veteran's thought processes were impaired due to poor concentration and memory, which resulted in occupational and scholastic difficulties. Similarly, at the March 2010 VA examination, the Veteran reported fatigue, short attention span, and motivation problems. The Veteran was concerned about taking a professional licensing examination to further his career and about difficulty performing administrative tasks due to his memory problems. The examiner found that the Veteran's memory problems interfered with his driving. The March 2010 VA examiner ultimately lowered the GAF score to 50 for serious symptoms, citing, in pertinent part, the Veteran's memory difficulties as causing occupational impairment.

The Board finds that the aforementioned evidence establishes that the Veteran's PTSD causes occupational and social impairment with deficiencies in areas such as work, family relations, thinking and mood, so as to warrant the higher 70 percent rating, since February 1, 2009. 38 C.F.R. § 4.130, Diagnostic Code 9411.

The Board recognizes that the Veteran's PTSD is not manifested by the enumerated symptoms for the 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. However, as previously stated, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442-43. Further, if the evidence shows 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 diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. In reviewing the evidence of record since February 1, 2009, the Board finds that the evidence establishes that the Veteran's PTSD more nearly approximates occupational and social impairment with deficiencies in most areas, even though the PTSD is not manifested by the list of symptoms under the rating criteria. Particularly, the Board notes that the Veteran's GAF scores have ranged from 50 to 55 since February 1, 2009, indicating moderate to serious impairment in social and occupational functioning. The Board finds that the overall medical and lay evidence of record supports these GAF scores, and establishes that the Veteran's

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PTSD causes occupational and social impairment with deficiencies in areas such as work, family relations, thinking and mood.

Thus, in applying the aforementioned case law, and in resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD is best rated as 70 percent disabling since February 1, 2009. 38 C.F.R. § 4.130, Diagnostic Code 9411.

However, the Board is of the opinion that the Veteran has not met the schedular criteria for a 100 percent rating under DC 9411 since February 1, 2009. In this respect, the Veteran is shown to have maintained a relationship with his spouse and his children throughout the appeal period. The Veteran is currently gainful employed. The Veteran has not claimed, and the evidence has not shown, that he has experienced disorientation to time or place, or memory loss for names of his close relatives, his own occupation, or his own name. The Veteran has reported the ability to perform his own activities of daily living. Thus, these examples are not present to support a 100 percent evaluation for total occupational and social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9411.

The Board has also considered the GAP scores assigned since February 1, 2009. His GAF scores have been indicative of serious impairment of social and occupational functioning, which is more consistent with the criteria for a 70 percent rating under DC 9411. Id.

As instructed in Mauerhan, the Board must consider the totality of the Veteran's symptomatology and circumstances when adjudicating the appropriate schedular rating under DC 9411. In the opinion of the Board, the Veteran has not demonstrated the type of severity, frequency and duration of PTSD symptomatology, which would support a 100 percent schedular rating premised on "total" occupational and social impairment. Id.

In summary, the Board finds that the criteria for a 70 percent schedular rating for the service-connected PTSD, but no higher, have been met since February 1, 2009. Id.

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Extraschedular and TDIU Analysis

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), affdsub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (2012) (related factors include "marked interference with employment" and "frequent periods of hospitalization").

The Veteran's PTSD is manifested by symptoms of depressed mood, anxiety, intrusive thoughts, and sleep disturbances, among other symptoms. The Veteran has been gainfully employed during the claims period and pendency of the appeal. For these reasons, referral for consideration of an extraschedular rating is not warranted.

The record also does not show, nor does the Veteran contend, that unemployment arises from his service-connected PTSD. Thus, the issue of entitlement to total disability based upon individual unemployability (TDIU) is not for present consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

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ORDER

Subject to the provisions governing the award of monetary benefits, entitlement to an initial 70 percent rating for PTSD, since February 1, 2009, is granted.

DEBORAH W. SINGLETON 
Veterans Law Judge, Board of Veterans' Appeals
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