Citation Nr: 1306468 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 07-06 623A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to April 4, 1972 and from April 19, 1972 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which in part, granted service connection for PTSD and assigned a 30 percent disability rating effective April 2004, the date of claim. The February 2007 Statement of the Case (SOC) reflects that a 50 percent disability rating was assigned effective back to the date of service connection in April 2004. This appeal is from the initial disability rating assigned upon the award of service connection for PTSD. 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). In October 2011, the matter was remanded to the agency of original jurisdiction (AOJ) for additional development. FINDING OF FACT The Veteran's service-connected PTSD is manifested by, at worst, occupational and social impairment with reduced reliability and productivity; the objective, reliable evidence does not establish that PTSD results in deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating higher than 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any treatment records pertinent to the appeal that are not of record. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in December 2010 and December 2012; the Veteran has not argued, and the record does not reflect, that the examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examiners reviewed the claims file and a complete rationale for the opinions was provided based on objective findings, reliable principles and sound reasoning. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. 38 C.F.R. § 4.7 (2012). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate ratings for distinct periods of time, based on the facts are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); see also See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that code, pursuant to the general rating formula, a 50 percent rating is warranted if the evidence shows 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted if evidence shows 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); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if evidence shows 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; and memory loss for names of close relatives, own occupation, or own name. Id. In rating the severity of the Veteran's psychiatric disability under the criteria listed above, psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF scale score assigned does not determine the disability rating VA assigns, but it is one of the findings employed in that determination. As relevant to this case, a GAF score from 41 to 50 is defined as serious symptoms or any serious impairment in social, occupational, or school functioning. The Veteran's PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating has been assigned throughout the appeal period. The Veteran has a long history of substance abuse. A VA discharge summary reveals that the Veteran required inpatient treatment for rehabilitation from November 1986 to January 1987. The diagnosis was "alcohol, cannabis, and opiate dependence and abuse, continuous for rehabilitation." The narrative of the discharge summary indicated that the Veteran abused heroin and reported doing so beginning in the service in 1972. Simply put, the Veteran is a heroin addict. A large volume of VA medical records document diagnoses of opiate dependence dating from 1986 to the present. The Veteran is competent to report his symptoms. Competence and credibility, however, are to be distinguished. As reflected in the Board's October 2011 remand, the Veteran's alleged stressor of having witnessed the USS HIGBEE (DD 806) when it was attacked and bombed by a North Vietnamese MIG in April 1972 is inherently incredible. He claimed that the MIG bombed the ship and hit the forward gun mount and that he saw several dead crewmen lying in the wreckage of the gun mount on the other ship. To support this assertion, he submitted copies of an article from the internet which provides an account of the Battle of Dong Hoi, Vietnam in April 1972. This information verifies that the USS HIGBEE was hit by a bomb dropped by a MIG on April 19, 1972. However, this evidence is clear that the ships aft gun turret was hit, and that despite the damage, there were no fatalities as a result of the attack. Moreover, this event occurred almost one full month before the Veteran reported aboard his ship in Vietnam. The evidence of record, some of which was submitted by the Veteran himself, shows that the Veteran could not have witnessed this event as he claims. In addition to suspected malingering noted in an April 2008 VA treatment record and on VA examination in December 2012, an April 2011 VA initial inpatient assessment reflects inconsistencies in the Veteran's account of having attempted suicide earlier that month. It was noted that the his report of having attempted suicide was in clear conflict with that of his spouse. Although the Veteran denied having used benzodiazepines such as Valium or Klonopin in the past, it was noted that the medical records described his prior Klonopin abuse in the 1980s, along with 7 inpatient admissions since 2000, all for substance-induced mood disorders versus depression. The Veteran's only service-connected disability is PTSD. The December 2012 VA examiner determined that the Veteran's chronic and severe substance dependencies and his antisocial personality disorder are his primary disabling disabilities. Early abusive childhood experiences were noted to have taught him lessons in life that resulted in characterological issues. It was noted that, because the Veteran's report of having witnessed the MIG bombing was discredited, the Veteran may be embellishing upon his experiences. Although the Veteran reported that repeated drug use caused him to become confused in reporting events which he alleged actually occurred, the examiner stated that he was able to supply explicit data when it came to the nature of other events which he reported. Partial malingering for personal gain was not ruled out. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (the claimant's personal interest may affect the credibility of the evidence). The examiner reported that the Veteran's denial of any problem with alcohol was inconsistent with past reports of rehabilitation for alcohol abuse. It was noted that the exaggerated startle response he reported did not manifest when there was extraneous noise in the nearby hallway or offices. In differentiating what portion of each symptom is attributable to each diagnosis, the examiner reported that drug dependencies affected almost all areas of the Veteran's life. It was noted that he had stopped working regularly in 1989 and did not continue due to his drug dependencies and that, in addition to having led to significant familial problems, including estrangement from his wife, the drug dependencies also led to significant criminal activity and resultant legal problems, as well as absenteeism from work. In addition to incarceration at the county jail, it was noted that he served 10 months in prison, and that the Veteran reported all of his criminal activities were in pursuit of drugs. The GAF scores assigned are primarily in the 41-50 range indicating serious symptoms commensurate with the 50 percent rating currently assigned. The GAF score of 32 entered in September 2004 was in association with VA inpatient treatment for substance abuse; the discharge summary reflects a GAF of 55, and it was noted that he was stable on methadone. The degree of impairment due to nonservice-connected disability is not for consideration in association with the evaluation of service-connected PTSD. A July 2007 VA treatment record reflecting a GAF of 40 reflects diagnoses to include not only PTSD but also a likely substance-induced mood disorder, and a GAF of 60 was entered on VA examination in December 2010. The report of examination notes only moderate mental symptoms and some impairment in social and occupational function. Although the criteria for both a 50 and 70 percent evaluation require occupational and social impairment, the evidence clearly demonstrates that the Veteran's impairment in social and occupational functioning is due primarily to drug dependency and antisocial personality disorder, not PTSD. Regardless, the December 2012 VA examiner concluded that the Veteran symptoms result in occupational and social impairment with reduced reliability and productivity consistent with the criteria for the 50 percent rating assigned. Deficiencies in most of the following areas of work, school, family relations, judgment, thinking, and mood are not due to service-connected PTSD. See Bowling v. Principi, 15 Vet. App. 1, 11 (2001). Rather, the deficiencies are attributable primarily to substance abuse and antisocial personality disorder. A rating higher than 50 percent for PTSD is not warranted at any time during the appeal period. In reaching a determination, the Board has accorded significant probative value to the VA examination reports and opinions. The examiners reviewed the claims file and the rationales for the opinions are based on objective findings, reliable principles and sound reasoning and are consistent with the December 2010 VA examination report in which his symptoms were determined to be moderate. Such evidence is far more reliable than the Veteran's lay assertions. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's PTSD symptoms. They are adequate to evaluate the disability and contemplate occupational and social impairment; referral for consideration of an extraschedular rating is not warranted. ORDER A disability rating in excess of 50 percent for PTSD is denied. ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs