Citation Nr: 1306296 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-08 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period of time prior to July 2, 2012. 2. Entitlement to a disability rating in excess of 70 percent for PTSD for the period since July 2, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran had a period of qualifying active military service which extended from November 1964 to November 1968. He had a second period of active duty service January 1968 to April 1977 from which he received a discharge under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Boston, Massachusetts, which reopened the claim, granted service connection for PTSD, and assigned a 30 percent rating, effective December 2008, which was the date of claim to reopen. Subsequent to the Board's May 2012 remand, an increased disability rating of 70 percent was granted effective July 2012. Since this appeal is from the initial disability rating assigned upon the award of service connection. The entire body of evidence is for consideration. Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also, Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has recharacterized the issues on appeal to account for the assigned staged ratings and the periods of time at issue. This appeal contains a hybrid record; part is in a physical claims folder and in part is in the Virtual VA paperless claims processing system. The case was previously before the Board in May 2012, when it was remanded for examination of the Veteran and medical opinions. The requested development has been completed. The issue of entitlement to service connection for aorta abdominal aneurism (AAA), to include as secondary to service-connected diabetes mellitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. 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 July 2, 2012, the Veteran's service-connected PTSD was manifested by: anxiety; sleep disturbance; the ability to maintain employment; and, a Global Assessment of Functioning Scale (GAF) ranging from 60 to 70. 2. Beginning on July 2, 2012, the Veteran's service-connected PTSD is manifested by: depressed mood; anxiety; weekly panic attacks; chronic sleep impairment; flattened affect; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work; and, a GAF of 58. 3. The evidence reveals that the Veteran maintained employment until December 2012; he left employment due to symptoms of nonservice-connected esophageal cancer. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for PTSD, prior to July 2, 2102, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for a disability rating in excess of 70 percent for PTSD, have not been met for any period of time covered by this appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Where a previously denied claim is being reopened, the notice must inform the Veteran of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice for his claim to reopen his claim for service connection for PTSD, by a letter dated March 2009. This notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim, the relative duties of VA and the claimant to obtain evidence, and notification of the laws regarding degrees of disability and effective dates. This letter also substantially complied with the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), and substantially complied with the requirements of Kent v. Nicholson, 20 Vet. App. 1 (2006). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. at 490-91 (2006). Accordingly, once service connection for PTSD was granted and a disability rating and effective date was assigned, section 5103(a) notice was no longer required. VA has obtained service treatment records, multiple VA examination reports, and VA treatment records. VA has assisted the appellant in obtaining evidence and afforded him the opportunity to present statements and evidence. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise. Accordingly, the appellant is not prejudiced by a decision at this time. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Evaluation of a service-connected disability requires a review of the entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2. Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. This appeal is from the initial disability rating assigned upon the award of service connection. The entire body of evidence is for consideration. Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining a disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record, and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 1991). Claims for service connection for psychiatric disabilities, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). Service connection for PTSD has been granted based upon a November 2008 Vet Center clinical assessment summary, which was completed by a social worker and indicated a diagnosis of chronic PTSD. The other medical evidence of record consists of VA treatment records and Compensation and Pension examination reports completed by VA psychologists. These records indicate diagnoses of anxiety disorder with some symptoms of PTSD and some symptoms of generalized anxiety. Service connection for PTSD has been established effective December 2, 2008, the date of receipt of the claim to reopen the claim for service connection. A 30 percent disability rating was assigned effective from the date of service connection. During the pendency of the appeal an increased disability rating of 70 percent was granted effective July 2, 2012. A November 2001 VA outpatient treatment record indicated that the Veteran had a history of depression which was being treated by his primary care provider, with Wellbutrin, an anti-depressant. An October 2004 treatment note continues to indicate depression as a diagnosis being treated with a different anti-depressant medication, Zoloft. A series of VA mental health treatment records dated from February 2003 through May 2006 reveal that the Veteran's only mental health treatment involved smoking cessation treatment. In April 2003, the first VA psychiatric Compensation and Pension examination of the Veteran was conducted. The Veteran reported depressed mood with primary onset of the more severe symptoms being in the last few years, although he did report his belief that these feelings might have began due to frequently moving early in his life. He also reported recent financial problems, including a bankruptcy, and difficulty in his sexual relations with his wife. He reported no inpatient or outpatient psychiatric treatment. He did report that his family doctor had prescribed Wellbutrin for both depressive symptoms and to assist in quitting smoking. He reported being married to his second wife and that he was employed full time. Mental status examination revealed depressed mood, and reports of difficulty sleeping. Otherwise, he was oriented and not psychotic or delusional. He had no hallucinations and no suicidal or homicidal thoughts. His memory was intact and he did not report having any panic attacks. The diagnosis was depressive disorder, which the examiner indicated was related to recent financial and marital communications problems. A GAF scale score of 60 was assigned. A GAF rating 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 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 51 to 60 is reflective of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupation, or school functioning, e.g., few friends, conflicts with peers or co-workers). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). A VA integrated primary care mental health note dated January 2008 reveals that the Veteran was evaluated for feelings of depression which he thought go back to Vietnam. He further refined his symptoms as feeling down, but not depressed. He reported some stressors / trauma related to his service in Vietnam but denied a history of hallucinations, delusions, memory problems, concentration problems, manic behavior, and depression. He indicated that he did not have sleep problems and slept 8 hours a night and felt rested in the morning. He reported current financial difficulties and reported a pre-service stressor of being sexually assaulted as a child. He reported a history of being employed in sales for six years and recently being hired as a sales manager. He denied suicidal ideation. He reported generally functioning well throughout life and he indicated that he had not received any mental health services. The examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD. The diagnosis was adjustment disorder with mixed anxiety and depressed mood. Current financial stressors were indicated as contributing to his anxiety and depressed mood. The Veteran was noted to be functioning well, but a follow up treatment session was scheduled. In May 2009, another VA psychiatric Compensation and Pension examination of the Veteran was conducted. The examiner reviewed the Veteran's medical and military history. The Veteran reported his mental health problems as "depression, anxiety, trouble sleeping, constant thinking that I am not going to make it." He reported being on his second marriage and that the relationship with his wife and step daughter was good. He reported being currently employed full time as a VA medical support assistant, and that he got along with co-workers and supervisors and that he had excellent job performance. He also reported a history of employment in retail management and real estate. On mental status examination his mood was anxious with tense and rigid behavior and slow hesitant speech. Affect was appropriate for mood. Thought processes were logical with no evidence of hallucinations, or delusions. He denied suicidal or homicidal ideation. Attention, concentration, and memory were age appropriate. Insight and judgment were normal. He reported getting 5 hours of sleep a night and awaking twice a night for urinary symptoms. He reported an average energy level and no problems with his temper. He indicated that he feels depressed most of the time and anxious some of the time. The examiner again indicated that the Veteran did not meet the full criteria for a diagnosis of PTSD. The diagnosis was anxiety disorder with some symptoms of PTSD and some symptoms of generalized anxiety disorder. A GAF score of 70 was assigned. A GAF rating of 61-70 is indicative of 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. Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The examiner indicated that the Veteran's psychiatric symptoms were mild in nature, rarely interfered with employment functioning and mildly interfered with social functioning. In March 2010, the Veteran submitted his substantive appeal on a VA Form 9. At this time he reported psychiatric symptoms much more severe than any previously reported, or noted, on objective examination. He reported having suicidal thoughts and near-continuous panic or depression which affected work and personal relationships. He reported difficulty adapting to stressful situations, impaired judgment, and mood swings. The record reveals that subsequent to submitting his March 2010 appeal, the Veteran moved twice to be employed at a VA medical facility in North Carolina, and finally at a VA medical facility in Virginia by 2012. In July 2012, the most recent VA psychiatric Compensation and Pension examination of the Veteran was conducted. The Veteran reported that he recently moved twice and that he didn't have any friends because he found making new friends difficult. He reported being divorced from his last wife in September 2010. He reported his relationships with his daughter and granddaughters were good. He reported limited leisure activities outside of work, mostly because of his two recent moves. He reported generally being able to perform work well but that he was often fatigued and had trouble with concentration. He indicated that he was not currently in counseling, but that he took medication for symptoms of PTSD and depression. He reported sleep disturbance with waking every few hours because of panic or anxiety. Specific triggers for the Veteran's anxiety were reported as including the following: going to a new place to work; meeting new people; financial issues; health issues; and, his recent divorce. Noted symptoms present included the following: depression; anxiety; panic attacks more than once a week; chronic sleep impairment; flattened affect; disturbance of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful situations. The diagnosis was anxiety disorder and a GAF of 58 was assigned. VA regulations require evaluation of mental disorders using the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). 38 C.F.R. §§ 4.125, 4.126. In a December 2012 letter, the Veteran indicated that he had stopped working in December 2012 because he was diagnosed with esophageal cancer. The Veteran's service-connected PTSD is rated at a 30 percent disability rating prior to July 2, 2012 and at 70 percent thereafter. The General Rating Formula for Mental Disorders (including PTSD) provides for a 30 percent rating when there is 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 and maintaining 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 work like setting); inability to establish and maintain effective relationships. Id. Finally, 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. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Further, when evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Prior to July 2, 2012, the Veteran's service-connected PTSD was manifested by the following: anxiety; sleep disturbance; the ability to maintain employment, and; and, a Global Assessment of Functioning Scale (GAF) ranging from 60 to 70. The evidence does not support a finding that the Veteran's psychiatric disability is so severe as to warrant a disability rating in excess of 30 percent for the service-connected psychiatric disability for the period of time prior to July 2, 2012. Prior to this date his service-connected psychiatric disability alone did not cause occupational and social impairment with reduced reliability and productivity due to symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The evidence shows that he had some symptoms of anxiety and depression which were managed. He was fully employed during this period of time. Compensation and Pension examiners describe the level of social and industrial impairment during this period of time as being mild. The preponderance of the evidence is against the claim for a disability rating in excess of 30 percent for the service-connected PTSD for the period prior to July 2, 2012. There is no doubt to be resolved; and an increased rating is not warranted for this period of time. 38 U.S.C.A. § 5107(b), 38 C.F.R. Part 4, §4 .130, Diagnostic Code 9411. Nor does the evidence support the assignment of a disability rating in excess of 70 percent for PTSD at any point during the period from July 2, 2012. The July 2012 VA Compensation and Pension examination revealed an increase in severity of the Veteran's psychiatric symptoms at that time, and he was assigned a 70 percent disability rating. There is no evidence that the service-connected psychiatric disability causes total occupational and social impairment warranting the assignment of a 100 percent disability rating. The increased psychiatric symptoms noted on the 2012 examination were the result of recent stressors such as moving, changing jobs, financial problems, and a recent divorce. The evidence clearly establishes that the Veteran had to stop working due to the diagnosis of a nonservice-connected cancer. There is no evidence that the Veteran exhibits any of the following symptoms: 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; or memory loss for names of close relatives, own occupation, or own name. The lowest GAF score of record is 58, which was assigned at the 2012 Compensation and Pension examination and is indicative of a level of impairment already being compensated at the presently assigned 70 percent disability rating. The preponderance of the evidence is against the claim for a disability rating in excess of the presently assigned 70 percent rating for service-connected PTSD for any period of time covered by this appeal; there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. Part 4, §4 .130, Diagnostic Code 9411. Consideration has been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service. An extra-schedular evaluation is warranted where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a 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 and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, 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. Thun, 22 Vet. App. at 116 . The schedular evaluations are adequate as the diagnostic criteria adequately address the severity and symptomatology of the Veteran's service-connected PTSD. Higher schedular evaluations are available upon a showing of additional symptomatology. The schedular criteria for the rating of psychiatric disabilities under the general rating formula for mental disorders specifically contemplate social and occupational impairment. There is no evidence of hospitalization for the service-connected psychiatric disability. There is no credible evidence that service-connected psychiatric disability alone results in any interference with employment. Rather, the evidence establishes that the Veteran maintained full employment, including changing location of employment several times, and that his nonservice-connected esophageal cancer is the reason for him leaving work. Therefore, the Veteran's disability picture is contemplated by the rating schedule and the disability ratings already assigned. No extraschedular referral is required. Last, a claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. Again, the evidence of record establishes that nonservice-connected cancer is the cause of the Veteran's current unemployment. Accordingly, consideration of TDIU for the psychiatric disability alone pursuant to Rice is not warranted. ORDER A disability rating in excess of 30 percent for PTSD, for the period of time prior to July 2, 2012, is denied. A disability rating in excess of 70 percent for PTSD is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs