Citation Nr: 1306872 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-42 691 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. He had service in the Republic of Vietnam from April 1966 to April 1967. This matter came to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the RO. In January 2011, the Veteran testified in a video conference with the Veterans Law Judge whose signature appears at the end of this decision. In January 2011, the Veteran's representative raised contentions to the effect that service connection was warranted for the residuals of fractures of the Veteran's right hand and foot, primarily as a result of his service-connected PTSD. That claim has not been certified to the Board on appeal nor has it otherwise been developed for appellate purposes. Therefore, the Board has no jurisdiction over that claim and it will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101 (2012). It is REFERRED to the RO for appropriate action. FINDING OF FACT Since service connection became effective March 28, 2007, the Veteran's PTSD has been productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Since service connection became effective March 28, 2007, the criteria have not been met for an initial rating in excess of 50 percent for PTSD. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist the Veteran in the development of his claim of entitlement to an increased initial rating for PTSD. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In March 2007, the RO received, the Veteran's substantially complete application for entitlement to service connection for PTSD. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection and set forth the criteria, generally, for rating service-connected disabilities and for assigning effective dates, should service connection be granted. In October 2008 rating action, the RO granted the Veteran's claim of entitlement to service connection for PTSD and assigned a 50 percent disability rating, effective March 28, 2007. The Veteran disagreed with that rating, and this appeal ensued. Because the Veteran is challenging the assignment of his initially assigned rating, the issue of entitlement to an increased rating for PTSD is considered a "downstream" issue. Grantham v. Brown, 114 F.3d 1156 (1997). Although VA has not specifically notified the Veteran of the information and evidence necessary to substantiate the increased rating claim, such notice is not required in this case. In December 2003, the VA General Counsel issued a precedential opinion stating that, if VA received a Notice of Disagreement in response to a decision on a claim for which VA had already sent the veteran a duty to assist letter, and the Notice of Disagreement raised a new issue, the duty to assist the veteran did not require VA to provide notice of the information and evidence necessary to substantiate the newly raised "downstream" issue. VAOPGCPREC 3-08 (Notice of Information and Evidence Necessary to Substantiate Claim - Issues Raised in Notice of Disagreement - 38 U.S.C. §§ 5103(a), 7105(d)), 69 Fed. Reg. 25180 (2004)). The Board is bound by that opinion. 38 U.S.C.A. § 7104(c) (West 2002). Hence, VA has essentially complied with its duty to assist the Veteran in the development of his claim of entitlement to an increased initial rating for PTSD. VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's records reflecting his VA treatment from March 2007 through March 2012; records from the Alliance Medical Group, reflecting his treatment in June and August 2007; statements from the Veteran's wife, daughters, and mother; statements from B. M. V., D.P.M and S. J. F., M.D. reflecting the Veteran's treatment in June 2010 and October 2010, respectively; and the transcript of the Veteran's January 2011 video conference with the undersigned Veterans Law Judge. In July 2010, VA examined the Veteran to determine the extent of impairment attributable to his service-connected PTSD. The VA examination report shows that the examiner reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his current medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination is adequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). During his January 2011 video conference, the Veteran testified that he was receiving Social Security disability benefits. However, he acknowledged that those benefits were for bilateral hip replacements. He responded "no", when the Veterans Law Judge specifically asked whether such benefits were for PTSD; and neither he nor his representative have identified his Social Security records as being relevant to his appeal. Further development to obtain such records would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2009)(holding that VA's duty to assist was limited to obtaining relevant SSA records; rejecting argument that SSA records are always relevant and VA always is required to obtain them; and defining relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Therefore, the records of the Veteran's Social Security disability benefits will not be requested by the Board. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal The Veteran argues that the 50 percent rating for his service-connected PTSD does not adequately reflect the level of impairment caused by that disorder. Therefore, he maintains that an increased rating is warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim. Accordingly, the appeal will be denied. The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2010). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. PTSD is rated in accordance with the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted, when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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 rating is warranted for PTSD, 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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. Relevant to an evaluation of the level of impairment caused by PTSD is the score on the veteran's Global Assessment of Functioning (GAF) Scale. That scale is found in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV) and reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996). In this regard, the Board notes that the nomenclature in DSM IV has been specifically adopted by VA in the evaluation of mental disorders. 38 C.F.R. §§ 4.125, 4.130 (2012). A GAF of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. Id.; see Carpenter v. Brown, 240, 242 (1995). A GAF of 41 to 50 signifies 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.; see Richard v. Brown, 9 Vet. App. 266, 267 (1996)). Though relevant in assessing the level of impairment caused by a psychiatric illness, such as PTSD, the GAF is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001). In order 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). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, as in this case, service connection is granted and an initial rating award is at issue, separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999) Lay statements from the Veteran's family attest to the difficulties the Veteran has had living with PTSD. In particular, they cite his anger, sleep difficulty, and desire to be alone. The medical evidence, such as the treatment records from VA and non-VA health care providers and the report of the Veteran's July 2010 VA examination, shows that the Veteran has been followed for PTSD and generally support his family's observations. Since service connection became effective March 28, 2007, the Veteran's PTSD has been manifested primarily by a depressed mood, irritability, flashbacks, sleep impairment with nightmares, social isolation, and startle response. Although the Veteran has a GAF from 50 to 55, which is indicative of moderate to serious impairment, his treatment records show that he is, generally, calm and cooperative and adequately groomed. His speech is normal with a regular rate, rhythm, and tone, and he is responsive and spontaneous. In addition, he denies audio or visual hallucinations, and there is no evidence of impaired thought processes or delusions. On several occasions during his treatment, the Veteran reported a history of having inflicted cuts on his wrists and abusive behavior toward his wife. However, his treatment records, dated since service connection became effective, do not show homicidal or suicidal ideation, and his health care providers have not found him at risk for self harm. Moreover, the July 2010 VA examination report shows that he is able to remove himself from situations in which he could possibly display intense anger. Thus, he is able to preempt the escalation of those situations where his anger could become an issue. The salient question, then, is whether the manifestations of the Veteran's PTSD affect the performance of his ordinary activities, such as on the job or in social situations. The preponderance of the evidence is plainly against the assignment of a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. An overview of the Veteran's symptoms reveals that although his primary disorder relates to a bilateral hip disability. Although PTSD plainly has an effect on his social functioning, his ability to disengage from dangerous situations when angry indicates reduced reliability, but not effecting "most areas" as is contemplated in a 70 percent evaluation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). It is also noteworthy that the Veteran is a retired meter reader/mechanic for an electric company. During his January 2011 video conference, he stated that he left that employment due to a seizure disorder, which his employer felt presented a safety issue. There is no evidence that his PTSD led to his retirement. While the Veteran reportedly has some interpersonal difficulties associated with his PTSD, there is no evidence that the Veteran is unable to pursue his daily activities or that he experiences obsessional rituals which interfere with routine activities. Moreover, he demonstrates no evidence of spatial disorientation or of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. Indeed, the preponderance of the foregoing evidence shows that since service connection became effective March 28, 2007, the manifestations of the Veteran's PTSD have been, generally, consistent with the schedular criteria for no more than a 50 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. He does not meet or more nearly approximate the schedular criteria for a 70 percent rating under that diagnostic code. Therefore, an increased initial rating is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected PTSD. 38 C.F.R. § 3.321(b)(1) (2012). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) . There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The General Rating Formula and the nomenclature set forth in DSM IV specifically contemplate the symptoms of the Veteran's service-connected PTSD: a depressed mood, irritability, flashbacks, sleep impairment with nightmares, social isolation, and startle response and their resulting effects on his occupation and socialization. 38 C.F.R. §§ 4.125, 4.130, Diagnostic Code 9411. Moreover, the Court has held that the General Rating Formula also contemplates symptoms not explicitly mentioned therein. Mauerhan, supra. In short, the Veteran does not have symptoms associated with PTSD that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115. The preponderance of the evidence is therefore against a finding that the Veteran's PTSD presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1). ORDER Entitlement to an initial rating in excess of 50 percent for PTSD is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs