Citation Nr: 1307072 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 12-23 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD) currently rated at 50 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for PTSD and assigned an initial rating of 30 percent for such disability, effective October 18, 2010. A notice of disagreement was received in April 2011, a statement of the case was issued in July 2012, and a substantive appeal was received in August 2012. A July 2012 rating increased the rating for PTSD to 50 percent, effective June 28, 2012. However, as this was not a full grant of the benefit sought on appeal, and the Veteran has not expressed satisfaction with this determination, his appeal proceeds from the initial unfavorable rating decision. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The RO also considered the Veteran's virtual file, as indicated in the July 2012 rating decision and statement of the case. FINDING OF FACT For the period both prior to June 28, 2012, and thereafter, the Veteran's PTSD symptoms have more nearly approximated a disability picture resulting in occupational and social impairment with reduced reliability and productivity manifested by symptoms such as flattened affect; panic attacks more than once a week; impairment of short- and long-term memory; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 50 percent, but no higher, for PTSD effective from October 18, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), and implementing regulations, require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The Board also stresses that since the issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in November 2010) another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the Court has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes all identified medical records. The Veteran was afforded VA examinations in January 2011 and June 2012. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Legal Criteria The Veteran claims entitlement to assignment of an increased initial disability rating for his service-connected PTSD. He essentially contends that this disability has been more severely disabling than the initial assigned rating reflects. The Board notes that it has reviewed all of the evidence in the Veteran's claims file (including the Virtual VA electronic claims file), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 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. 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, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged ratings." Id. at 126. Under the criteria for PTSD (set forth at 38 C.F.R. § 4.130, Diagnostic Code 9411), a 30 percent rating is assigned 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). A 50 percent rating is assigned 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. A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent schedular rating is warranted when there is 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 relative, own occupation or own name. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). The GAF score is not conclusive of the degree of impairment for VA purposes but, rather, must be considered together with all evidence of record. See 38 C.F.R. § 4.126. The Board recognizes that in Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans' Claims (Court) stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. However, the Court further appears to have acknowledged that without those examples, differentiating between evaluations would be extremely ambiguous. Id. at 442. Factual Background October 2010 VA mental health records document psychiatric complaints related to depression and anxiety. The Veteran and his spouse related symptoms such as snapping at family members, anger issues, keeping to himself and being distrustful. Judgment and speech were described as normal. The Veteran's mood and affect were described as depressed and anxious. A GAF score of 55 was reported. The Veteran's medications were increased. In a November 2010 statement, the Veteran reported sleep disturbances, irritability, and difficulty when startled. He also states that he avoids dark places, crowds, nighttime activities, and has a desire to sit in corners and watch the door when eating in public. A November 2010 letter from the Veteran's wife outlined her observations of her husband and corroborated the Veteran's claims made in the Veteran's statement. In addition, the wife stated that the Veteran drank heavily in the past, but that he had not been drinking for a while. At a January 2011 VA examination the Veteran reported bad dreams and recurring nightmares. The Veteran expressed that he does not like crowds, and that when he is in a crowd he becomes nervous and sweaty. He also stated that there have been times where he has had occasional thoughts of suicide. He denied any current suicidal or homicidal ideation. The Veteran also indicated that he retired in February 2010, at the age of 62 because he was "ready" and that as he was nearing retirement he had been losing his temper. The Veteran has been married for 30+ years and reported a good relationship with his adult children and grandchildren. In addition, the Veteran reported that he helps with household chores, regularly attends church with his wife, goes to ball games with his wife and adult children, regularly socializes with long-term friends over breakfast at a coffee shop, is active in his local VFW, and that he feels comfortable being around other veterans. He reported that he had not used alcohol for two years, although he drank heavily in the past. Mental status examination notes in the January 2011 VA examination report shows that his appearance and hygiene were good, speech was clear and discernible, eye contact was fair, and his thought organization appeared logical and coherent. The examiner noted that he did not exhibit any overt signs of anxiety or restlessness; however, he stated that he felt anxious and stiff. He did not show any difficulty with the immediate recall tasks, but had difficulty with delayed recall and during the attention and calculation portion of the exam. No abnormal mental trends involving delusions or hallucinations were evident. The January 2011 VA examination report indicates that the Veteran's service-connected pathology includes a diagnosis of PTSD with a GAF score of 62. In February 2011, the Veteran was observed to be depressed and distracted with flat affect and muted speech. He was also having dreams of being under attack in Vietnam and was having trouble sleeping. In March 2011, the Veteran reported an experience, in which he heard gunshots that caused him to have a full-blown flashback. He also reported being off his medication at that time which appears to have caused him more tension, sleeplessness and anxiousness. In February 2012, the Veteran began attending martial counseling through VA. In a June 1, 2012 VA treatment record, the provider noted that the Veteran was dysthymic, his concentration was variable, his affect congruent to the topic of conversation was variable, and that he was tearful at times. The provider also noted that the Veteran denied any current suicidal or homicidal ideation and did not appear under the influence of drugs or alcohol. The Veteran also stated that he has had a decrease in mood over the past 3 to 4 years since he retired. The provider assigned a GAF score of 50. The Veteran's VA treatment records span approximately 18 months and show a relatively consistent pattern of symptomatology and behavior. These records show that the Veteran has some social impairment, demonstrated by his aversions to various social events, large crowds, and symbols of his military service. On June 28, 2012, the Veteran was afforded another VA examination. The report noted that the Veteran reported rocky relationships with his wife and children. The Veteran described a strained relationship with his co-workers before he retired, and that everything at work was upsetting or aggravating him. He continued to report being anxious, nervous, and avoiding crowds. The Veteran also reported having angry and aggressive impulsive thoughts, being easily provoked to road rage, flying off the handle, and trouble getting along with people, although there were no indications of violence. The Veteran reported suicidal ideation 1 to 2 times a week, with no attempts or intent. In addition, the Veteran continued to report social support to include active involvement with the VFW, seeing friends at a coffee shop, and his pastor (even though he denied attending religious services anymore). However, he also reported recurrent and distressing recollections of the traumatic events, including distressing dreams, feelings of recurring traumatic events, psychological distress, and physiological distress. The Veteran reported persistent avoidance of stimuli associated with the trauma, to include avoiding thoughts and feelings associated with the trauma; avoiding activities, places or people that arouse recollections of the trauma; diminished interest or participation in activities; and feeling of detachment and estrangement from others. Also, the Veteran reported difficulty falling and staying asleep, irritability and outbursts of anger, difficulty concentrating, hyper-vigilance and exaggerated startle response. The examiner noted that these symptoms have been occurring for more than 1 month. The June 2012 VA examination report indicates that the Veteran's service-connected pathology includes diagnoses of PTSD, depressive disorder NOS (not otherwise specified), and alcohol dependence. A GAF score of 58 was assigned. The examiner stated that these problems coalesce to exacerbate his symptoms of anxiety and depression. These symptoms are overlapping and intermingled, which makes it difficult to differentiate the symptoms of each diagnosis. The examiner also found that the Veteran's symptom picture, as presented, comes together to cause significant impairment in his social and occupational functioning. Analysis As noted in the introduction, the Veteran's PTSD has been rated 30 percent disabling from October 18, 2010, and 50 percent from June 28, 2012. The Board must consider whether higher ratings are warranted. In reviewing the record, the Board notes that the RO increased the rating to 50 percent effective from June 28, 2012, based on an examination report of that date which included comments by the examiner that the PTSD resulted in disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. Both of these symptoms are listed as examples of the types of symptoms for which a 50 percent rating is warranted. The Board also notes that certain records document flattened affect on occasion, and symptoms of depression and anxiety are routinely reported. Generally speaking, prior to the June 28, 2012, examination the evidence suggests that the PTSD resulted in only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In other words, it is arguable that the evidence does not warrant a rating in excess of 30 percent prior to June 28, 2012. However, the evidence prior to this date does show some evidence of irritability, avoidance of crowds (at least on occasion), and temper problems. The evidence also shows an increase in medication which suggests an increase in severity of the PTSD. There is some contrary evidence, however, such as the January 2011 VA examination which documented clear and discernible speech, good hygiene, logical and coherent thought organization and no overt signs of anxiety. Although the evidence is certainly not compelling, the Board believes that the PTSD disability picture prior to June 28, 2012, more nearly approximated occupational and social impairment with reduced reliability and productivity due to the types of symptoms set forth as examples for a 50 percent rating. 38 C.F.R. § 4.7. However, the Board also finds that the preponderance of the evidence is against a rating in excess of 50 percent either prior to June 28, 2012, or from that date onward. The Veteran's PTSD, although described as severe by certain examiners, simply does not result in the type of disability picture described by rating criteria for the next higher rating of 70 percent. There is no persuasive evidence of deficiencies in most areas. His judgment and thinking have not been found deficient, there are no obsessional rituals, no problems with speech, and no near-continuous panic or depressing affecting his ability to function independently. Although anger issues have been reported, there is no persuasive evidence of unprovoked irritability with periods of violence. There is no showing of spatial disorientation or neglect of personal appearance and hygiene. As far as relationships go, although there is some evidence or marital problems, the overall evidence shows effective family relationships. Good relationships with his children and grandchildren have been reported. As for other social activities, the Veteran is apparently active in a service organization and socializes with friends to some extent. Some suicidal ideation has been reported, but the overall record does not paint a disability picture of the type contemplated by the criteria for a 70 percent rating. In sum, the evidence is simply against a finding that the criteria for a schedular 70 percent rating have been met during any period contemplated by this appeal. In general, the schedular disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Further, the Court has held the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant diagnostic code for PTSD (and associated psychiatric disability). In short, the rating criteria contemplate not only his symptoms, but also the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Additionally, a request for a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if a claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. The Board has considered whether the Veteran or the evidence of record reasonably raised the question of whether he is unemployable due to a disability for which an increased rating is currently sought in this appeal. The Board finds no such question is currently raised. Rather, the Veteran has been retired since 2010, when he was 62 years of age. Although he reported interpersonal difficulties in his last several years of work, these are contemplated under the currently assigned ratings. He does not assert, nor does the evidence persuasively suggest, that he stopped working due to his PTSD. Therefore, the Board finds that this appeal does not currently include an issue of entitlement to TDIU. ORDER Entitlement to a 50 percent rating (but no higher) for PTSD is warranted effective from October 18, 2010. To this extent, the appeal is granted, subject to laws and regulations governing payment of monetary benefits. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs