Citation Nr: 1306341 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-13 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 Decision Review Officer decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which, in pertinent part, granted service connection for PTSD with a 70 percent disability rating effective April 28, 2005 (date of claim). The Veteran was afforded a video hearing before the undersigned Veterans Law Judge in December 2012. The transcript is associated with the case file. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, such as Bedford VA medical center treatment records from 2012 and the December 2012 video Board hearing transcript. FINDING OF FACT PTSD is productive of no more than occupational and social impairment with deficiencies in most areas.. CONCLUSION OF LAW The criteria for a PTSD rating in excess of 70 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING 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). 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. Next, VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2011); see Golz v. Shinseki, 590 F.3d 1317, 1320 (2010). Furthermore, "[t]he duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration (SSA)] disability records must be sought -- only those that are relevant to the [V]eteran's claim." Golz, 590 F.3d at 1320-21. Service treatment records and VA treatment records have been obtained, to include recent VA Bedford medical center treatment records from 2012. 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 in March 2009 and December 2010. These examinations are 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). During the hearing, the Veterans Law Judge (VLJ) clarified the issue, explained the concept of rating a disability and addressed whether there was outstanding evidence. The actions of the VLJ supplement VCAA and comply with any duty that may be owed during a hearing. 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 (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, however, as shown below, the evidence warrants a uniform 70 percent rating. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are, however, evaluated under a general rating formula for mental disorders. Under the general rating formula, a disability rating of 70 percent is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is assigned when the condition results in 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 mental and personal hygiene); disorientation to time or place; 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). 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 criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. The 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) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A score of 21-30 is indicated when behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home or friends). A GAF score of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). GAF scores between 41 and 50 reflect 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). GAF scores between 51 and 60 reflect moderate symptoms, (that is, flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, contacts with peers or co- workers). An examiner's classification of the level of psychiatric impairment, by words or by a score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board must assess the credibility and weigh all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Analysis The Veteran contends that his service-connected PTSD is more severe than the current ratings contemplate. Thus, the primary issue on this appeal is whether the overall impairment caused by the Veteran's PTSD more nearly approximate the criteria for a 100 percent rating than the criteria for the current 70 percent rating. For the following reasons, the Board finds that they do not. Post-service treatment records from Bedford VA medical center reveal a March 2005 initial psychiatric evaluation which enumerates the Veteran's reported PTSD symptomatology. Symptoms reported include persistent reexperiencing of the traumatic event, distressing dreams, persistent avoidance of stimuli, avoidance of thoughts, feelings, activities and people, markedly diminished interest or participation in social activities, feeling detached or estranged from others, irritability, anger, difficulty concentrating, and hypervigilence. The examiner noted that such symptoms cause significant distress or impairment in social, occupational, or other areas as the Veteran avoids groups of people. At this time, the Veteran denied the effect of such symptoms on important areas of functioning or mania symptoms. The Veteran reported various familial stressors, and indicated that he has lost interest in his hobbies although he plays golf from time to time. Based on the Veteran's report of PTSD symptomatology, the examiner assigned a GAF score of 60. A GAF screening noted in an April 2005 psychiatry progress note indicates an assigned GAF score of 43 without further elaboration. A December 2005 psychiatry progress note indicates that despite being "moody" the Veteran exhibited cooperative behavior and a normal affect. His thought process was organized and coherent with cognition, insight, and judgment to be intact. He denied homicidal and suicidal ideations. A GAF score was not assigned at this time. Records indicate that the Veteran was attending PTSD group therapy starting in 2007. A January 2008 intake assessment related to PTSD group therapy revealed a GAF score of 45. At this time, the Veteran reported to be currently operating his own business. He reported being married to his wife for almost 40 years. The examiner considered the Veteran's relevant history and PTSD symptomatology, which has been consistent with the Veteran's previous reports, to include feelings of distance from others, emotional numbness, difficulty concentrating, anger, and irritability. Upon observation, the Veteran was alert and oriented as to person, place, and time. His speech was normal and his affect was constricted. His thought process was logical and organized, and his attention and concentration were within normal limits. There was no evidence of perceptual disturbance during the interview. An April 2008 individual psychotherapy note indicates that the Veteran presented as hypervigilant, but his stress decreased by the end of the session. He demonstrated humor as a coping strategy. No psychotic symptoms or suicidal/homicidal ideations were articulated. July 2008 PTSD group therapy notes indicate that the Veteran has been concerned about his emotional distance from his wife and adult children, but that he feels more emotionally connected to his grandchildren. He was able to provide insight as to how his PTSD symptoms have affected his relationships. No suicidal/homicidal ideations were articulated. An August 2008 letter from the Veteran's treating physicians at Bedford VA medical center articulated how his PTSD symptoms have had a significant impact on his life. At work, the Veteran's difficulties managing his anger has caused arguments and physical altercations with supervisors and co-workers, and has negatively impacted his ability to follow directions from supervisors. Additionally, at home, his PTSD symptoms have increased with respect to intrusive thoughts, sleep disturbances, avoidance of people and pleasurable activities, emotional numbness, and concentration issues. The physicians explained that the Veteran continues to suffer from moderate to severe levels of PTSD that markedly interfere with his functioning across all domains of his life (occupational, interpersonal, familial, self-care). The Veteran was afforded a VA examination in March 2009. After reviewing the medical history and examining the Veteran, the examiner assigned a GAF score of 50, and noted that his psychiatric symptoms are of a serious nature because the Veteran has no friends and has had difficulty with his employment. The examiner elaborated that the Veteran took an early retirement because he was also having disciplinary problems due to his temper and was unable to get along with coworkers or his supervisor. At home, the Veteran did limited household chores. He avoided socializing with family members and avoided social gatherings. His hobbies included playing golf and riding his motorcycle. As his PTSD symptoms seriously interfered with employment functioning and social functioning, the examiner opined that there is a reduced reliability and productivity due to the patient's PTSD signs and symptoms, which require continuous medication and continuous psychiatric treatment. A psychiatry consultation in June 2010 revealed that the Veteran continued to exhibit an array of PTSD symptomatology. He was particularly angry and irritated upon consultation at this time. The Veteran denied current suicidal ideations but he endorsed some fleeting homicidal ideations; however he was not forthcoming about details. He reported that he has been unable to stop himself from violent outbursts in the past, but noted that it has been five or six years since an episode occurred. The Veteran continued to report problems with familial relationships. He was assigned a GAF score of 40. Psychotherapy notes from August 2010 reveal that the Veteran has been working on a business plan where he is able to help others. No psychosis, suicidal or homicidal ideations were present at this time. A September 2010 psychiatry note indicates that the Veteran has been continuing and responding to his group and individual psychotherapy treatments. He reported that his wife is doing well and that they went on a cruise together. He indicated that he is still distant from his children. Upon examination, the Veteran was found to be pleasant and engaging, with a organized and coherent thought process, and with cognition, insight, and judgment intact. There were no suicidal/homicidal ideations reported. He was assigned a GAF score of 42. A letter dated November 2010 from the Veteran's treating physicians at VA Bedford medical center indicates that despite ongoing psychotherapy, the Veteran's condition persisted at the same severity. They reported a recent GAF score of 42 (assigned in September 2010). The physicians jointly opined that the Veteran is not capable of gainful employment due to the severity of his PTSD symptoms and he is not likely to regain his capacity for gainful employment. A November 2010 psychiatric treatment note indicates a GAF of 45. Upon another VA examination in December 2010, after reviewing the medical history and examining the Veteran, the examiner assigned a GAF score of 50 because his symptoms continued to be in the serious range. The examiner commented that the Veteran has sufficient attention and concentration to do skilled or unskilled work on a part-time or full-time basis, although it is best that he works alone ( no interface with the general public). Upon examination, the Veteran described his marriage as "all right." He indicated that he has three adult children and has an "okay" relationship with one of them. He has no friends, but he communicates with his family. He reported that he recently assaulted someone at a bar. The examiner noted no signs of depersonalization or derealiziation, any hallucinations or illusions. His thought process was logical and goal-directed. There were no obsessions or delusions. He was reported to have suicidal ideation of a passive nature; no homicidal ideations. Mild problems with attention and concentration resulting in mild short-term memory problems were reported. Reasoning and judgment processes were within normal limits. In sum, the examiner observed that the Veteran is currently unemployed full-time and his psychiatric symptoms moderately to seriously interfere with employment functioning and seriously interfere with social functioning. There was no impairment of thought processes or communication, and he is able to maintain his personal hygiene and his daily responsibilities. The Veteran reported that when he was working, he was a good worker when left alone. At home, the Veteran reported performing limited household chores. The examiner noted a reduced reliability and productivity due to the Veteran's PTSD symptoms, as he requires continuous medication. A March 2011 mental health treatment plan indicates that the Veteran endorsed passive suicidal ideations without intent or a plan and passive and vague homicidal ideations without intent, a plan, or a clear target. The examiner noted that it appeared as if the Veteran was trying to convince him that he (the Veteran) is significantly impaired. The Veteran's most prominent PTSD symptoms still included flashbacks, loss of interest in previously enjoyed activities, and feeling distant from people. A GAF score of 60 was assigned. VA treatment notes from 2012 continue to show that the Veteran engaged in individual and group psychotherapy for his PTSD. He and his wife also engaged in couple's counseling. A May 2012 treatment note reveals that the Veteran was depressed about denial of his Social Security benefits and was concerned about his relationship with his family. GAF scores of 41 and 43 were assigned at this time. Notes from a June 2012 session indicate that the Veteran is goal directed and advocates for himself. There were passive suicidal ideations without a plan. Despite his lack of motivation and feelings of hopelessness, the Veteran continued to make future plans and tried to remain involved with his family. He also indicated that he engages in his hobby of playing golf. Treatment notes from August through October 2012 demonstrate that the Veteran has been responding to all forms of psychotherapy as he was seemingly goal-directed and noted to be cautiously optimistic about familial interactions, particularly with his formerly estranged son. He continued to be engaged in future planning and did not present an imminent risk of harming himself or others. He acknowledged that he needed to work on communication issues with his wife (married for about 44 years). The above evidence reflects that the Veteran has had neither the symptoms nor overall impairment indicated by the criteria for a 100 percent rating throughout the appeal period. There were no symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of the Veteran hurting himself 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, his own occupation or his own name. Instead, the evidence reflects that the Veteran was most often goal-directed and his thought processes and cognitive capabilities were normal and intact throughout the period of the appeal. There were no reported symptoms such as delusions, hallucinations, or any inability to maintain personal hygiene. Despite an isolated incident of violence demonstrated when the Veteran went out in public and passive suicidal ideations without a plan, treating psychiatrists have stated that the Veteran is not an imminent danger to himself or others. Furthermore, even the recent evidence of 2012 shows that the Veteran has been responding well to various forms of psychotherapy as he demonstrated an awareness of the need to make progress in the way of communicating with his family members. It therefore cannot be said that the symptoms or overall level of impairment more nearly approximated the criteria for a 100 percent rating. Neither the GAF score nor an examiner's characterization of the Veteran's level of impairment is dispositive or binding on the Board. See 38 C.F.R. § 4.126. The Board notes, however, that the Veteran's GAF scores do not demonstrate a consistent pattern as they range from 41 (lowest) to 60 (highest). Such GAF scores and the December 2010 VA examiner's characterization of the overall level of impairment are consistent with the evidence and the Board's findings. The medical and lay evidence as well as the GAF scores establish that there is occupational and social impairment with deficiencies in most areas. The Veteran's own statements to his treating physicians throughout the pendency of the appeal establish that his occupational impairment is largely due to the fact the Veteran is a loner and has trouble getting along with his supervisor or his coworkers. Despite the VA physicians' November 2010 letter indicating that the Veteran cannot gain employment due to PTSD, the Veteran admittedly stated that if he were left alone, he could be a good worker. The VA examiner in December 2010 commented that the Veteran has sufficient attention and concentration to do skilled or unskilled work on a part-time or full-time basis, although it is best that he works alone. In 2010, the Veteran also mentioned having a business plan. He has consistently demonstrated that his thought processes were goal-directed. Therefore, the Board does not find that the Veteran demonstrated total occupational impairment. Additionally, the Veteran's social impairment demonstrates deficiencies in social situations (he avoids groups). He admittedly has no friends and has consistently reported to avoid groups. At home, the Veteran reported that he does not help out with most chores, but he still reported doing some household tasks and engaging in some hobbies (e.g. golf). Furthermore, it is clear that the Veteran has some social contact with his family members and he has expressed an interest in improving his relationship with them. The Veteran has also been married for 40 plus years and continues to demonstrate that he is working through problems in his marriage. Hence, the evidence and the Veteran's statements, even when accepted as credible, do not establish total occupational and social impairment. See 38 C.F.R. § 4.7. In sum, the Veteran's symptoms are more characteristic of a disability picture that is contemplated by a 70 percent rating and no more. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. As shown above, the criteria include multiple psychiatric symptoms and encompassed the Veteran's psychiatric symptoms as shown in the VA examinations and VA treatment records. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is thus not required and referral for consideration of an extraschedular rating for PTSD is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's PTSD most nearly approximates the criteria for a 70 percent rating. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an initial rating higher than 70 percent for PTSD must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to an initial rating in excess of 70 percent for PTSD is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs