Citation Nr: 1309564 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 10-40 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial rating greater than 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that granted the Veteran's claim of service connection for posttraumatic stress disorder (PTSD) and assigned a 50 percent rating effective February 11, 2009. FINDING OF FACT The competent evidence shows that the Veteran's service-connected PTSD is manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating greater than 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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). An RO letter dated March 16, 2009 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b), as stated above. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. As such, the VCAA duty to notify was satisfied by way of the March 2009 letter. Further, the claim for a higher initial rating arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). VA also has a duty to assist a claimant in obtaining evidence to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty includes assisting the veteran in the procurement of service treatment records, other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the RO has obtained the Veteran's service records, VA treatment records, and private treatment records. The Veteran has also submitted a lay statement. Neither the Veteran or his representative have identified any additional relevant records that VA failed to obtain. Lastly, VA psychiatric examinations were conducted in April 2009 and November 2012. The examiners reviewed the claims file, considered the Veteran's history, listened to his assertions, and conducted a psychiatric examination. As the examinations were accurate, descriptive, and based on the complete medical record, including the Veteran's lay assertions, VA has fulfilled any duty to provide a thorough medical examination. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Increased Rating The Veteran contends that his service-connected PTSD is more disabling than currently evaluated. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran's PTSD is currently evaluated as 50 percent disabling, effective February 22, 2009, under the criteria of Diagnostic Code 9411. See 38 C.F.R. § 4.132. A 50 percent rating contemplates 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A next higher 70 percent evaluation is warranted where 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; intermittently illogical obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is warranted where 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in VA's general rating formula for mental disorders are 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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 ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). In this case, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. After a careful review of the record and for reasons and bases expressed immediately below, the Board finds that the medical records as a whole do not support a greater than 50 percent rating for the Veteran's PTSD. The Veteran has undergone two VA examinations to assess his diagnosed PTSD. At his April 2009 VA examination, the Veteran reported he was having nightmares two times a month, having repeated flashbacks, experiencing anger and irritation, that he avoided attending movies and Asian restaurants, was unable to recall details in a logical and sequential order, felt detached from others and numb, and was hypervigilant. He reported suicidal ideation two to three times per year. He said he was in a good marriage, which was his third of 22 years. The Veteran described himself as retired and said in his last job he experienced anger and irritation and got into verbal arguments and three to four physical altercations with co-workers. The examiner opined that he was able to be employed from a psychiatric standpoint with loose supervision and not working closely with others. The examiner found the Veteran to have normal cognitive functioning with a score on the Saint Louis University Mental Status (SLUMS) examination of 27 out of 30. He was casually but appropriately dressed and well-groomed with good eye contact and normal speech. He related history in a logical and sequential manner and was oriented to date, time, and place. The examiner assigned a Global Assessment of Functioning (GAF) score of 54. At the Veteran's first visit to the VA for PTSD treatment in October 2009 he reported having nightmares, trouble in crowds, and hypervigilance, particularly with loud noises and when approached from behind. He said he had trouble sleeping and was irritable when driving. He reported being married for 10 years and having no contact with his daughter but seeing his granddaughter and great-grandson regularly. The VA doctor found him to be alert and oriented with fair attention and memory, but stated that he had limited insight and poor judgment given his recent decision to bring a gun to a movie theatre on his first trip to watch a movie in a theatre in 15 years. The Veteran underwent a second examination in November 2012 in which the examiner concluded he had occupational and social impairment with reduced reliability and productivity. With regards to employment, the Veteran reported to the VA examiner that he had recently started working part-time and had only worked four days so far, but had experienced startle reactions at work due to loud construction noises. He also said he was troubled when construction equipment got too close to him. In terms of relationships, he reported his relationship with his wife was stable although there had been some conflict involving his step-daughter that had resolved. He had recently cut ties with his step-daughter. The Veteran reported continuing to need medication to sleep and experiencing nightmares two to four times per week sometimes accompanied by night sweats. He said he also experienced occasional panic attacks and flashbacks that included shaking and being short of breath. He also had other intrusive thoughts during the day, including of seeing fellow soldiers in body bags. The examiner noted that the Veteran's anxiety was manifest during the interview. The examiner stated that the Veteran is able to maintain activities of daily living including personal hygiene. He also found the Veteran's thought processes, communication, and social functioning are not impaired. He noted restricted affect and that the Veteran had difficulty becoming emotionally engaged with people. During the interview he found the veteran to be cooperative and responsive. He found his concentration, abstract reasoning, and continuity of thought to be good. He also had good memory with a SLUMS score of 26 out of 30. The Veteran also reported difficulty with irritability, but said he had learned ways to control himself over the years. He also explained that he avoids crowded places and sometimes gets so anxious he leaves stores before finishing shopping. He is also hypervigilant in public places. He reported no recent suicidal ideation and no homicidal ideation. The examiner listed the following symptoms as ones experienced by the Veteran: depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or worklike setting. The examiner assigned a GAF score of 55. In a September 2010 statement, the Veteran said he feels threatened almost on a daily basis and sometimes has to leave stores because something will trigger a nervous or threatened feeling. He stated that three to four hours of sleep, even with medication, is a good night. He has nightmares including about an incident that occurred in service when he was nearly crushed by a helicopter, that he's carrying a body bag and sees that its his face, and that he's being shot at. The Veteran explained that talking to the VA psychiatrist and taking the medication prescribed made things worse. He said he sometimes goes days without showering or brushing his teeth but wouldn't leave the house during those times. In a March 2009 statement, the Veteran's spouse said he frequently experiences severe nightmares with shaking and sweating after which he is unable to go back to sleep. She stated that he also has sudden mood swings, becoming belligerent and argumentative. He also has the potential to hit someone who approaches him from behind. He refuses to watch some war movies because they are too realistic. A veteran's level of social and occupational functioning is the crux of any rating assigned under the General Rating Formula. In this case, the Board finds no more than moderate social or occupational impairment, and that the currently assigned 50 percent correctly contemplates his level of functioning. The record reflects the Veteran has some occupational impairment, but is able to perform work. He worked in the conveyor belt field for more than 30 years before driving a mixer truck for 2.5 years, a job he was laid off from at the end of 2008. He reported getting into verbal arguments with his co-workers at his last job, as well as several physical altercations. Just prior to the November 2012 VA examination, the Veteran had returned to work part-time driving a fuel truck. The April 2009 examiner opined that the Veteran was employable from a psychiatric standpoint with loose supervision and not working closely with others. The November 2012 examiner did find the Veteran has difficulty in adapting to stressful circumstances, including work or worklike setting. Further, the record reflects the Veteran has some social impairment but has some ability to maintain effective relationships. He has been married for more than a decade and has consistently described his relationship with his wife as positive. Although he has no contact with his daughter, he reported in October 2009 that he regularly sees his granddaughter and great-grandson. The November 2012 VA examiner found the Veteran's social functioning was not impaired but stated that he has difficulty becoming emotionally engaged with people. Although the Veteran reported difficulty with irritability, in November 2012 he also told the examiner that he had improved his self-control over the years so as not to offend others. The Veteran also reported avoiding crowded places and said he sometimes gets anxious in stores and leaves prior to finishing shopping. He also reported hypervigilance in public. However, he reported only occasional panic attacks. The VA examinations and treatment records all indicate the Veteran is able to maintain his personal hygiene. He reported no recent suicidal ideation at his November 2012 VA examination. There is no evidence, for example, of obsessional rituals or spatial disorientation. In April 2009 the VA examiner found the Veteran to be oriented and have normal cognitive functioning. The examiner also noted the Veteran related his history in a logical and sequential manner. In November 2012 the examiner found the Veteran's concentration, abstract reasoning, continuity of thought, and memory to be good and his communication not impaired. The Veteran's GAF scores of 54 and 55 put him squarely in the range assigned those with moderate symptoms or difficulty in social or occupational functioning. Those scores are also consistent with the symptoms reflected in the Veteran's medical records and VA examinations. The Board has noted the Veteran's contentions in his September 2010 statement that he experiences panic attacks almost daily, has nightmares and trouble sleeping, and sometimes doesn't shower or brush his teeth for days. However, even taking into consideration those problems, the Board finds there is not a basis to grant the Veteran's request for an increased rating. The nature and extent of the Veteran's symptoms, as described by him and his spouse and reflected in the medical records is represented by the currently assigned 50 percent rating. A rating in excess of 50 percent is not warranted as the evidence does not suggest the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A staged rating is not appropriate in this case because the Veteran's PTSD does not warrant more than a 50 percent evaluation based on the evidence of record at any time since February 11, 2009. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In sum, the evidence does not support an initial rating in excess of 50 percent for the Veteran's PTSD at any time during the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Rating The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between 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. 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service connected PTSD that would render the schedular criteria inadequate. The Veteran's symptoms, including panic attacks and nightmares, are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's PTSD. In addition, the Board finds the record does not reflect that the Veteran's PTSD markedly interferes with his ability to work. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 50 percent for PTSD is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs