Citation Nr: 1307944 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-20 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), rated 10 percent disabling prior to April 23, 2012, and rated 30 percent disabling thereafter. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from March 1992 to February 2003 and from July 2005 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Denver, Colorado, which granted service connection for PTSD and assigned an initial evaluation of 10 percent, effective from July 3, 2006. In a May 2012 Supplemental Statement of the Case, the RO increased the disability evaluation to 30 percent, effective from April 23, 2012. The Veteran asserts that there is clear and unmistakable error (CUE) in the August 2007 rating action because only a 10 percent rating was assigned for PTSD. The Board, however, notes that the August 2007 rating decision is the rating action on appeal. Pertinent VA treatment records were constructively of record within one year of the August 2007 rating decision; thus it did not become final. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); see also 38 C.F.R. § 3.156(b). The Veteran also submitted a Notice of Disagreement within one year of this rating decision. Because the August 2007 rating decision has been appealed, there is no final adverse RO or Board decision that can be subject to a CUE attack. Thus, as a matter of law, the Veteran cannot assert a claim of CUE. Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board hearing held in August 2012. The hearing transcript is of record. FINDING OF FACT Since the grant of service connection, the Veteran's PTSD has been productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial disability rating of 30 percent, but not in excess thereof for service-connected PTSD from July 3, 2006 to April 22, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At his August 2012 hearing before the undersigned, the Veteran explicitly stated that the assignment of a 30 percent rating, effective from the date service connection was granted (i.e. July 3, 2006), would satisfy his appeal. Generally, in a claim for a higher VA disability rating, a claimant will be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993) (stating that a claimant may limit their claim or appeal to the issue of entitlement to a particular disability rating that is less than the maximum allowed by law for a specific service- connected condition. But, where there is no clearly expressed intent to limit the appeal, VA is required to consider entitlement to all available ratings for that condition). Accordingly, and based on the Veteran's statement and in light of the award granted below of a 30 percent rating for PTSD, effective from the date service connection was granted, this award would constitute a full grant of the benefit sought. As such, no further discussion of VA's duty to notify or assist is necessary. II. Analysis Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2010); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Also, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's service-connected PTSD is rated under 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 10 percent is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. A 30 percent rating is assigned for 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 when there is 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 evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); inability to establish and maintain effective relationships. A 100 percent evaluation 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 ability 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. VA outpatient treatment records include a report of a July 2006 mental health evaluation. During that evaluation, the Veteran described himself as "edgy and reactive," but he indicated that he could manage his mood well and not lose his temper. He also noted that he had experienced "low-grade depression" since returning from Iraq in February 2006. He reported difficulty concentrating and short-term memory problems. On mental status examination, he was casually dressed and groomed. His mood was "ok." His affect was full and appropriate to content. Speech was normal and articulate. Thoughts were relevant and coherent. Insight and judgment were intact. He denied homicidal or suicidal ideation, hallucinations, and delusions. The diagnosis was adjustment disorder with depressed mood. The GAF was 71. At a September 2006 VA mental heath assessment, the Veteran reported symptoms of poor frustration tolerance, irritability, forgetfulness, and disturbed sleep. He further reported that he snapped at wife and children and was uncomfortable in social settings. He also noted that he attended church regularly and spent time with his family whenever possible. On mental status examination, he was fully oriented. Speech was normal and goal-directed. His mood was sad and his affect was over-controlled. He demonstrated good insight and his judgment was intact. The diagnosis was PTSD, mild. The GAF was 90. A November 2006 VA treatment record shows that the Veteran's medication was helping his irritability, and he was a little less reactive. He continued to deny suicidal ideation. The mental status examination revealed objective findings and a GAF score that were identical to those shown at the September 2006 mental health assessment. The Veteran was afforded a VA examination in July 2007. He reported having difficulty sleeping. He also indicated that he had some problems with verbal anger and irritability that primarily manifested against his spouse, but on occasion also occurred in the workplace and while driving. He denied suicidal ideation. The Veteran further reported that he maintained contact with both of his parents and has a pretty good relationship with his sister. He had been married for 27 years, but reported that the relationship had deteriorated significantly in the past 6 months. He reported conflict with two of his children, and described some feelings of detachment from his family. He also noted that he had some anger and irritability in the work place but without significant impairment of his work performance. He reported engaging in social activities involving his church and church functions and indicated that he has one best friend who lives in another state. Objectively, he appeared neat and clean. He was fully oriented and his recent, remote and immediate memory was good. Speech was normal. Thought process was spontaneous, although it was sometimes over abundant and rambling. It could be goal-directed when refocused. Thought content was without homicidal or suicidal ideation. There were no delusions. His abstract ability was good and concentration was satisfactory. Mood was euthymic and the range of his affect was broad. Judgment was adequate and insight was good. The diagnosis was PTSD, chronic. The GAF was 65. The examiner indicated that at the present time the symptomatology seemed mild, although it had increased since the evaluation in 2006, when a GAF of 90 was assigned. In a statement dated in July 2006, the Veteran reported that he had experienced symptoms that included difficulty concentrating, irritability, depression, impatience, and forgetfulness. On mental health evaluation in November 2007, the Veteran reported a lack of motivation since returning from Iraq. He also reported that he had had a lot of marital conflict over the past year. On mental status examination, he was completely oriented. His mood was sad; affect was over-controlled. Insight was good and his judgment was intact. The diagnosis was PTSD, mild. The GAF was 90. The Veteran was afforded another VA examination in April 2012. He reported anxiety and occasional panic attacks, especially when driving. He noted irritability when driving as well. He denied any active suicide ideation or plans. He did not report any grossly inappropriate behavior, and explicitly denied overt psychotic symptoms, paranoia, hallucinations. He also denied manic symptoms. The Veteran did report some situational, familial, and marital tensions. He denied any history of domestic violence. He noted that he was working full-time, generally performed satisfactorily, and got along with others. Socially, he reported that he attends church, visits the gym, and occasionally gets together with a friend. On mental status examination, he was casually dressed, friendly, and cooperative. He appeared slightly depressed and anxious. His speech was articular. Thought process was logical and goal-oriented. Testing revealed a minor deficit of working memory. The examiner indicted that there had not been any specific worsening of the Veteran's condition, although symptoms of anxiety and depression have been continuous. In addition, the Veteran retained cognitive and judgment capacities and his social functioning was grossly intact for basic skills. The examiner provided diagnoses of PTSD and depressive disorder, not otherwise specified. The depressive disorder was secondary to PTSD and included overlapping symptoms that were not differentiable. The GAF was 62. The examiner indicated that the most accurate description of the Veteran's impairment due to PTSD was occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. In statements submitted in August 2012, the Veteran's wife and daughter noted that since the Veteran's return from Iraq, he had demonstrated symptoms such as depression, sleep impairment, irritability, anxiety, bursts of anger, and a sense of detachment. His son also reported that he had noticed changes in his father's emotional character such as the fact that he is easily angered and seems to be emotionally detached from others. At the August 2012 hearing before the undersigned, the Veteran testified that he had experienced some feelings of detachment and depression since he filed his claim. He also noted that he underwent marriage counseling during the course of this appeal due to marital tensions. He denied active suicidal ideation. Based on a review of the evidence, the Board finds that the Veteran's PTSD has manifested with symptoms that have more closely approximated the criteria for a 30 percent rating since the grant of service connection. The clinical findings contained in the VA outpatient treatment records and examination reports, and the Veteran's competent and credible lay statements, reflect that the PTSD has primarily manifested with symptoms of sleep disturbance, mild memory loss, anxiety, feelings of detachment and estrangement from others, and difficulty with verbal anger and irritability. These PTSD symptoms are accounted for in a disability rating of 30 percent, and are shown to have been present since the grant of service connection. The evidence does not otherwise show that the Veteran's PTSD has resulted in more severe symptoms at any time during the course of this appeal, such as those set forth in the criteria for the next higher rating of 50 percent. For instance, his speech and insight have been intact. Symptoms such as flattened affect, panic attacks, and difficulty in understanding complex commands have not been shown. Additionally, there is no indication that the Veteran has difficulty in either establishing or maintaining effective social and work relationships. The record reflects that he regularly attends church and is involved in church functions. He also enjoys spending time with his friend and his family. Moreover, he has maintained his marriage for more than 30 years despite some difficulty due to his PTSD symptoms. He also appears to have a good relationship with his children despite some increased irritability on his part. This does not reflect difficulty in establishing and maintaining effective social relationships. The evidence also does not reflect difficulty in establishing and maintaining effective work relationships. The Veteran has not reported that he has experienced any reduced reliability and productivity in his employment due to his PTSD. On the contrary, he has reported that his job performance as a customer service provider has been satisfactory and he gets along well with others. Thus, the evidence is not indicative of serious occupational impairment due to the PTSD. The currently assigned 30 percent rating adequately reflects the mild degree of occupational impairment caused by PTSD. The evidence does show some disturbance in mood and motivation. The Veteran has reported feeling depressed, and the outpatient treatment records reflect that his mood was "sad" during several mental health evaluations. He also reported a lack of motivation since returning from Iraq during the November 2007 mental health evaluation. Nonetheless, the Board finds that his symptoms overall, still more nearly approximate the criteria of a 30 percent rating. Significantly, all three VA examiners have opined that the Veteran's PTSD has been of no more than mild severity. The cumulative VA outpatient findings, including reports of mental health evaluations, also reflect assessments of mild PTSD. The Board further notes that the GAF scores reported throughout the course of the appeal (i.e. 62, 65, 71, and 90) are indicative of PTSD symptoms that are no more than mild. For the foregoing reasons, the Board finds that the Veteran is entitled to an initial evaluation for his PTSD of 30 percent for the period at issue . There is no competent evidence to show that he meets the next higher rating criteria which would require a showing of 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.. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b). 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). The Board finds that the rating criteria contemplate the Veteran's PTSD, which throughout the appeal has been primarily productive of sleep disturbances, mild memory loss, anxiety, feelings of detachment and estrangement, and difficulty with verbal anger and irritability. These manifestations are contemplated in the respective applicable rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. The Veteran is currently employed. As there is no evidence of unemployability in this case due to service-connected PTSD, the question of entitlement to TDIU is not raised. ORDER Subject to the laws and regulations governing payment of monetary benefits, a 30 percent rating but not higher for PTSD is granted from July 3, 2006 to April 22, 2012. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs