Citation Nr: 1309633 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 07-18 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to March 1971. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Chicago, Illinois. In his June 2007 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. Thereafter, in a September 2011 correspondence, he requested that his hearing request be withdrawn. See 38 C.F.R. § 20.704(e) (2012). In October 2012 the case was remanded for additional development, and the matter is now returned to the Board for further appellate consideration. The Virtual VA electronic claims file has been reviewed; a review of the documents in such file reveals that it contains VA treatment records pertinent to the issue on appeal. It is noted that a total rating based on individual unemployability has been assigned effective the date of the claim. The matter before the Board then concerns only the appropriate schedular evaluation to be assigned for the PTSD. FINDING OF FACT The Veteran's PTSD has been manifested, primarily, by nightmares, flashbacks, irritability, sleep disturbances, hypervigilance, social isolation, anxiety, suicidal thoughts, obsessive rituals, detachment from friends, and depression; collectively, these symptoms are indicative of occupational and social impairment with deficiencies in most areas along with the inability to establish and maintain effective relationships. Symptoms of total occupational and social impairment have not been demonstrated. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an April 2005 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A December 2006 letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific). The case was last adjudicated in January 2013, and any defect as to timing of notice is harmless, non-prejudicial error. Dingess/Hartman, 19 Vet. App. 473. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA examination reports, and VA treatment records. As noted, the Veteran's claim was remanded for additional development in October 2012. Additional records were requested or acquired, and all new evidence was considered in a January 2013 supplemental statement of the case. The Board finds that there was substantial compliance with the remand directives, fulfilling the duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of the 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. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign an evaluation 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. 38 C.F.R. § 4.126(a) (2012). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. A 70 percent evaluation is warranted for 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order 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 relatives, occupation, or own name. Id. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A Veteran's assigned GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of a veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). A GAF score of 31-40 reveals 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; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score between 41 and 50 indicates that a veteran has 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). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF of 61 to 70 is defined as 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 generally functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 71 to 80 is reflective of transient symptoms if present at all, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning. VA's Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service-connected PTSD is currently rated as 70 percent disabling, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Analysis The Veteran claims that his current PTSD warrants a disability rating of 100 percent. As noted above, there is a total rating based on individual unemployability from the date of the claim, so the matter herein concerns only the schedular rating to be assigned. The Veteran's DD Form 214 shows that he served in the Republic of Vietnam from July 1970 to March 1971. The Veteran reported at his October 2005 VA psychiatric examination that during service he worked as a truck driver. He described the traumatic stressor events he experienced in Vietnam, including driving over a landmine which then exploded, being in a bunker that was hit with a mortar shell that killed three other soldiers, and carrying dead bodies. In November 2005 the Veteran was service connected for PTSD with a disability rating of 50 percent, effective date February 4, 2005. In a May 2010 rating decision his initial rating was raised to 70 percent, effective the date of claim. At the Veteran's October 2005 VA psychiatric examination he reported having frequent agitation, occasional anger, and a history of verbal and physical abusiveness. The Veteran also reported being suspicious of others and having difficulty sleeping, nightmares, intrusive memories, and loss of sexual interest. He reported trying to avoid places that reminded him of combat, crowds, and the company of others. The examiner described the Veteran as alert, friendly, cooperative, and neatly groomed and assessed his peer relationships and social adjustment as "fair." The examiner stated that the Veteran's thought process was logical and sequential, judgment and insight were fair, hygiene and eye contact were good, cognitive function was intact, speech was normal, and there were no psychotic thoughts, delusions, hallucinations, panic attacks, obsessive behavior, or suicidal ideation. The Veteran reported no history of previous hospitalizations or out-patient care. The examiner described the Veteran's symptoms as frequent, moderate, and chronic, diagnosed him with PTSD, and assigned a GAF score of 56. The Veteran began receiving VA mental health treatment in September 2009. At his September 2009 consultation with a clinical pharmacist he reported having insomnia, nightmares, decreased energy, poor appetite, fluctuation in concentration, and difficulties with his wife, although he also stated that she was supportive. The pharmacist noted that he had increased startle response, restlessness, normal appearance, guarded attitude, intact attention and concentration, normal affect and speech, normal and logical thought process, intact memory, adequate judgment, and no signs of hallucinations or delusions. The Veteran was then seen by a psychiatrist who also noted that the Veteran had some depressive symptoms and diagnosed the Veteran with PTSD, alcohol abuse, and depression not otherwise specified vs substance-induced mood disorder, with a GAF score of 55. In November 2009 the Veteran began receiving treatment for alcohol abuse. In a November 2009 Substance Abuse Treatment Program evaluation the Veteran reported poor sleep, hyperarousal, nightmares, irritability, low mood, low energy, and low interest. He appeared anxious and fidgety, with an averted gaze and intact memory, attention, and concentration. The examining physician diagnosed him with PTSD, depression not otherwise specified, and alcohol dependence and assigned him a GAF score of 60. In January 2010 the Veteran was again evaluated by a VA physician. The Veteran reported some improvement in mood and sleep, but with some depression. He reported no psychosis or mania, was alert, oriented, cooperative, well-groomed with good hygiene, normal speech, and appropriate judgment. He reported enjoying the holidays with his family. The physician assigned the Veteran a GAF score of 65. In a March 2010 mental health evaluation the Veteran reported feeling depressed with some suicidal ideation. He described having difficulty coping with combat memories without substances such as alcohol. The Veteran presented as alert, well-groomed, with linear thoughts and a depressed mood. The physician assigned him a GAF score of 65. Later that month the Veteran reported that he was experiencing similar feelings of depression and had relapsed into alcohol use. The physician assigned him a GAF score of 60. The Veteran was afforded an additional VA psychiatric examination in March 2010. The Veteran reported that he was forced to resign from his job as a corrections officer in 2002 due to his PTSD symptoms, which included isolation, irritability, depression, anxiety, difficulty working with others, and alcohol abuse. He reported having flashbacks triggered by noise, frequently fighting with his wife, difficulty sleeping, nightmares, anhedonia, depression, hypervigilance, avoiding crowds, thinking about suicide, and attacking his wife when woken suddenly. The examiner noted that the Veteran was unshaven and unkempt, with good memory, poor concentration and judgment, sad and anxious affect, coherent speech with some psychomotor slowing, and no signs of delusions or hallucinations. The examiner opined that not having work or leisure to distract the Veteran had caused a marked deterioration in his condition and that he was unable to work with others or supervisors due to irritability and anger, unwillingness to follow orders, and very poor social functioning. The examiner diagnosed with Veteran with PTSD and alcohol dependence in remission and assigned him a GAF score of 40. In August 2010 VA requested an additional medical opinion from the Veteran's VA examiner regarding his possible entitlement to a total disability rating based on individual unemployability and received a report that was a duplicate of the report performed in March 2010, with the exception that the claims file had now been reviewed. In April 2010 the Veteran was evaluated for substance abuse treatment and presented as anxious with a depressed and negative mood. He reported nightmares and flashbacks, but no hallucinations or psychosis. The examining physician assigned him a GAF score of 50. Later that month, after completing the treatment program, the Veteran reported having an improved mood and was assigned a GAF score of 60. In September 2010 the Veteran reported that he continued to have nightmares and flashbacks of Vietnam. He reported having few friends and feeling emotionally detached. His psychiatrist described him as aloof, detached, vigilant, and irritable, with a loud voice and no sign of thought disorder. The psychiatrist assigned the Veteran a GAF score of 65. From December 2010 to August 2012 the Veteran's occasional VA mental health evaluations began to show some improvement in his mood and functioning. In December 2010 he reported that he was benefiting from the PTSD support group and felt supported by the people there. His psychiatrist noted that his mood appeared improved and that the Veteran was more talkative and relaxed. In June 2011 he reported that he was still having nightmares and flashbacks, but was better able to tolerate them. After both the December 2010 and June 2011 visits the psychiatrist assigned the Veteran a GAF score of 75. In February 2012 and August 2012 the Veteran reported that he remained vigilant, but had less frequent and less severe nightmares and flashbacks. He denied any suicidal ideations and reported that his medication was helping. After both visits the psychiatrist assigned the Veteran a GAF score of 80. The Veteran has also submitted statements in which he describes how he has vivid and recurring dreams about being in a firefight and stating that he has hypervigilant behavior, including compulsively and obsessively cleaning his firearms. Based on a review of the record, the Board finds that at no time has the Veteran shown total occupational and social impairment, and therefore a disability rating in excess of 70 percent is not warranted. In this regard, the record does not show any evidence of a gross impairment in the Veteran's thought processes or communication, nor is there evidence of any delusions or hallucinations. The appellant during the appellate period has never shown grossly inappropriate behavior or abnormal thought or judgment. With the exception of his March 2010 VA examination, in which he was described as unkempt and unshaven, he has at all other times presented as well-groomed. He has been able to maintain minimal personal hygiene, he has not been disoriented to time or place, and he has not suffered memory loss due to his service connected psychiatric disorder so that he cannot recall the names of close relatives, occupation, or own his name. VA treatment records consistently show that the Veteran is oriented to time and place, his behavior is appropriate, he is able to perform activities of daily living, and he communicates normally. Furthermore, with the exception of the March 2010 VA examination, the Veteran's judgment and thinking were always noted to be normal and logical. His mood was often noted to be depressed or anxious, and he expressed suicidal ideation on several occasions. However, the Veteran was never found to be in persistent danger of hurting himself or others. Finally, the evidence demonstrates that the Veteran was able to establish and maintain some effective relationships. While he reported having some difficulties with his wife, he also reported that she was a support to him and on at least one occasion she accompanied him to his mental health appointment. The Veteran has been able to share his feelings and find support from a therapy support group, and he has enjoyed time spent with his family at the holidays. Many of the Veteran's reported symptoms are included among those specifically listed in the General Rating Formula for Mental Disorders, pursuant to which the current 70 percent disability rating has been assigned. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran's extent of occupational and social impairment. Accordingly, in this case, the Board finds that the existence and severity of the Veteran's psychiatric symptoms are adequately contemplated by the relevant rating criteria. As noted above, many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. In this case, the Veteran's symptoms as described above are consistent with the current 70 percent disability rating. The Board further finds that none of the GAF scores the Veteran has been assigned, ranging from 40 to 80, alone, provide a basis for assigning a rating in excess of 70 percent. The Veteran's lowest GAF score was a score of 40 given in March 2010, which is reflective of serious impairment in areas such as work, family relations, judgment, thinking, and mood. This level of impairment is adequately reflected in the assignment of a 70 percent rating and does not indicate any level of symptomatology that would be encompassed by a higher 100 percent rating. Furthermore, the assignment of the GAF score of 40 appears to be an anomaly, as the overwhelming majority of the Veteran's GAF scores are 50 or considerably higher, indicating moderate to serious impairment which is well covered by the 70 percent disability rating. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher, 4 Vet. App. at 60. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. The rating criteria take into account serious interference with employment, which the Veteran has experienced. The record does not show that the Veteran has required any hospitalization for his PTSD, nor is there evidence in the medical records of an exceptional or unusual clinical picture. The Veteran's disability picture is sufficiently contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. Consequently, referral for extraschedular consideration is not warranted. Based on the foregoing, the Board finds that the rating currently assigned to the Veteran is appropriate and that the evidence of record preponderates against a finding that the criteria for a rating in excess of 70 percent have been met. As such, the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 70 percent for PTSD is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs