Citation Nr: 1310072	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO. 09-25 560	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Jan Dils, Attorney


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran served on active duty from December 1994 to September 1998 and from February 2003 to February 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied a rating in excess of 30 percent for the Veteran's PTSD.

In a November 2010 rating decision, the RO granted a 50 percent rating effective March 25, 2010, the date of the Veteran's claim for an increased rating.

The matter was previously remanded by the Board in November 2011 for additional evidentiary development. 

A portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. 

Because the current appeal was processed as part of the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDING OF FACT

The Veteran's PTSD does not result in occupational and social impairment with deficiencies in most areas manifested by symptoms consistent with suicidal ideation, obsessional rituals, illogical or obscure speech, spatial disorientation, a near-continuous panic or depression affecting independent function, or a neglect of personal hygiene and appearance


CONCLUSION OF LAW

The criteria for a rating in excess of 50 percent for PTSD have not been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
	
Prior to the initial adjudication of the Veteran's claims, a letter dated in March 2010 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess.

The Veteran's VA treatment records and private treatment records have been associated with the claims file. The Board requested additional evidentiary development in its November 2011 remand. Specifically, the RO was instructed to ascertain if the Veteran had any additional pertinent medical treatment not associated with the record. The RO was also instructed to obtain the Veteran's recent VA treatment records and Logan Vet Center records and associate them with the claims file. Finally, the RO was instructed to obtain records from the Veteran's employer regarding any employment actions resulting from his PTSD. A review of the claims file indicates that the requested records have been acquired. Therefore, the directives of the November 2011 remand have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran was also afforded a VA examination in April 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The VA examination obtained in this case is adequate as it was predicated on a review of the claims file; contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and records the relevant findings for rating the Veteran's PTSD. Moreover, the Veteran has not asserted that his condition has worsened since the April 2010 examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the mere passage of time is not a basis for requiring of new examination). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4).

VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation 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 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012).

Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The U.S. Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment and holding that symptoms provided in diagnostic criteria are examples of manifestations of impairment).

The Veteran is currently assigned a 50 percent rating under Diagnostic Code 9411 for his PTSD.

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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9435 (2012).

A 70 percent disability rating is assigned 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 that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id.

A 100 percent disability rating is assigned 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, or for the Veteran's own occupation or name. Id.

Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect 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, with some meaningful interpersonal relationships. Id. GAF scores ranging from 51 to 60 reflect 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). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). Id.

The Veteran underwent a private psychiatric evaluation in March 2009. He reported having 4 to 5 nightmares per week. He also "beat himself" at night, and displayed several bruises on his arms. He stated that he did not socialize well, and preferred to be by himself. He experienced both periods of depression and feelings of being "super happy," which included racing thoughts and rapid speech. He had lost interest in activities he previously enjoyed, such as fishing and hunting. He had a severe loss of energy, and problems with concentration, fatigue, and irritability. He also experienced feelings of guilt and worthlessness related to his children and his military experience. He reported a "couple" of fights with coworkers, including one incident which led to his suspension. On examination, the Veteran was appropriately groomed and dressed. He had normal psychomotor activity. His mood was slightly dysphoric, and his affect ranged from restricted to tearful. Speech was normal. He denied any recent suicidal ideations, delusions, or hallucinations. Immediate and remote memory was intact, though recent memory was somewhat impaired. Concentration was mildly impaired. Judgment and insight were intact. The examining physician noted that the Veteran's level of functional impairment was severe, based on reports of how his symptoms interfered with work, daily activities, relationships, and general satisfaction with life. The Veteran's GAF score was 50.

Vet Center records from January 2010 show the Veteran was reportedly at risk of losing his job due to poor impulse control. Social, family, and occupational domains were severely affected by manifestations of the Veteran's condition.

VA treatment records dated February 2010 show the Veteran acknowledged problems with anhedonia, depression, sleep, energy, concentration, crowds, irritability, hypervigilance, and sleep difficulty. His GAF score was 50.

Records dated March 2010 indicate the Veteran's mood was dysphoric. His affect was congruent to topic and conversation. However, his thoughts were linear and goal directed. Insight and judgment were good. Speech and grooming were normal. There was no indication of suicidal or homicidal ideation.

A VA examination was conducted in April 2010. The Veteran did not report feeling sad, but reported a lack of interest in previously enjoyed activities. He had fatigue and low energy at times. He had persistent feelings of worthlessness and guilt stemming from family issues and his military experience. He reported an unintentional weight loss of 40 pounds in 4 months due to loss of appetite. He loved his wife but did not feel close to her. He acknowledged throwing things when arguing with her. He avoided crowds and social situations, and preferred to engage in individual pursuits, though he initiated phone calls once a week with his children who lived in California. He had abused pain pills up until 16 months ago. 

On examination, the Veteran was appropriately groomed. His speech was normal, though he appeared restless. His mood was "edgy" and his affect was full. He was able to complete serial 7's and spell a word forwards and backwards. He was fully oriented, and his thought processes were normal. Judgment and insight were intact. He denied any obsessive behavior, delusions, suicidal ideation, and panic attacks. Impulse control was fair, but some episodes of violence were noted. Immediate and recent memory was moderately impaired. His GAF score was 50.

Additional records dated April 2010 show the Veteran reported that he felt like he wanted "to kill somebody," though the treating physician noted that the Veteran was frustrated and not homicidal. He had increased irritability and anxiety. He had called in sick to work, and could not handle babysitting his son for a couple of hours. He complained of panic attacks occurring nearly every day. Thoughts were linear and goal directed. Insight and judgment were good. Speech and grooming were normal. There was no indication of suicidal or homicidal ideation.

In May 2010, the Veteran reported difficulties with concentration. He could not focus on tasks and got into trouble at work because of it. He also reported a great deal of debt due to impulsive spending. Thoughts were linear and goal directed. Insight and judgment were good. Speech and grooming were normal. There was no indication of suicidal or homicidal ideation.

In June 2010, the Veteran complained of problems with anger, irritability, and socializing with others. He endorsed mood swings which fluctuated between irritability and "nonsocialability." When he is "nonsocialable" he did not want to do anything at all. On examination, the Veteran was alert, cooperative, and fully oriented. His grooming and hygiene were adequate. He was friendly and engaged, but looked somewhat tense and anxious. Speech with normal. His mood was anxious and irritable. His affect was constricted and congruent. Thought processes were logical and goal directed. Thought content was negative for any psychosis or suicidal or homicidal ideation. His GAF score was 55.

Records dated September 2010 show the Veteran was doing better. He and wife were getting along better. He was sleeping better. His dreams were more vivid but generally he felt more rested when he wakes.

In March 2011, the Veteran reported problems with concentration and attention. He also became anxious and irritated easily, and felt moody. He reportedly had no energy and felt tired all the time. He did not want to be around people. He denied suicidal or homicidal ideation, and denied any symptoms suggestive of psychosis.

In May 2011, the Veteran complained of difficulty initiating & maintaining sleep. He also got anxious easily, and did not go anywhere and did not like to be around
People. He had difficulty concentrating, and was fighting with wife occasionally over money. On examination, the Veteran was appropriately groomed. He was fully oriented and had adequate eye contact. Motor activity, thought processes, and memory were normal. His mood was euthymic and his affect was full. He denied any delusions, hallucinations, or suicidal or homicidal ideation. His GAF score was 55.

VA records dated September 2011 show the Veteran denied any depression, feelings of hopelessness, or suicidal ideation. However, he described his memory as "spotty." Examination revealed his mood was euthymic and his affect was reactive and congruent. He was appropriately dressed and groomed. Thought processes were rational and goal directed. Speech was normal. Cognition was intact and no perception disturbances were noted. The Veteran had fair judgment, insight, and decision-making skills.

In April 2012, the Veteran reported problems with road rage. He stated that his symptoms "come and go" but were manageable if he takes his medication. He stated that the medication calmed him. On examination, the Veteran was fully oriented. He was appropriately dressed and groomed. He had good eye contact and his speech was normal. No psychomotor retardation or agitation was noted. His thought processes are logical and coherent without hallucinations or delusions/paranoia. He denied any suicidal or homicidal ideation. Some trouble with concentration was noted, but memory was intact. 

A September 2012 statement from the Veteran's employer indicated that the Veteran worked 40 hours per week. He was entitled to sick leave, and had not requested any concessions. He was working full duty.

The Board finds that a rating in excess of 50 percent is not warranted. While the Veteran demonstrated some symptoms consistent with a higher rating, such as irritability with violent episodes, records during the period on appeal do not reflect many of the other criteria consistent with a higher 70 percent rating (such as suicidal ideation, obsessional rituals, illogical or obscure speech, spatial disorientation, a near-continuous panic or depression affecting independent function, or a neglect of personal hygiene and appearance).

In Mauerhan, the Court held that symptoms listed in the code do not "constitute an exhaustive list, but rather are to serve as examples of the types and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan at 442. If the evidence demonstrates that a claimant suffers from symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. In this case, however, the evidence does not demonstrate that the Veteran's symptoms result in an overall level of disability consistent with a higher 70 percent rating. Notably, the evidence does not demonstrate any significant impairment with activities of daily living. The Veteran also took steps to maintain an active relationship with his children who did not live with him. While the Veteran reported some prior difficulties with his occupational duties, his employer indicated that he had been working full time without any concessions. In sum, the record does not demonstrate that the Veteran's symptoms or their effects results in a level of social or occupational impairment consistent with a 50 percent rating.

Notably, the Veteran also had GAF scores of 50. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they can be a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003). In this case, while the Veteran received a GAF score that may indicate suicidal ideation, severe obsession rituals, frequent shoplifting, or other symptoms, the physicians who provided these GAF score did not report any such findings, and they are not otherwise demonstrated in the available evidence. As discussed above, the Veteran's specific symptoms are consistent with a 50 percent rating.

In adjudicating a claim the Board must assess the competence and credibility of the Veteran and other lay witnesses. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences symptoms such as irritability and sleep impairment. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, as with the medical evidence of record, his account of his symptomatology describes manifestations consistent with the assigned rating.

In evaluating the Veteran's claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

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 attendant thereto 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.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. Specifically, the Veteran's symptoms of sleep impairment, mood disturbances, panic attacks, memory impairment, and overall social and occupational functioning are expressly contemplated in Diagnostic Code 9411. The Veteran's disability does not result in any symptoms that fall so far outside the rating schedule as to render it inadequate.



ORDER

A rating in excess of 50 percent for PTSD is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs