Citation Nr: 1310550 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-27 664A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to May 7, 2010. 2. Entitlement to an initial evaluation in excess of 30 percent for PTSD from May 7, 2010. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which granted service connection for PTSD with the assignment of an initial 10 percent evaluation from August 29, 2008. In a June 2010 rating decision, the RO granted an increased evaluation of 30 percent from May 7, 2010. As a higher schedular evaluation for this disability is possible, the issue of entitlement to an increased rating remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In March 2013, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the transcript is associated with the Veteran's VA Virtual electronic claims file. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal with the exception of the hearing transcript. The issue of entitlement to an evaluation in excess of 30 percent for PTSD from May 7, 2010 is addressed in the REMAND portion of the decision below. FINDING OF FACT Prior to May 7, 2010, the impairment from the Veteran's PTSD more nearly approximates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks rather than reduced reliability and productivity. CONCLUSION OF LAW Prior to May 7, 2010, the criteria for a 30 percent for PTSD, and no more, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that VA sent to the Veteran all required notice in a September 2008 letter, prior to the rating decision on appeal. In this case, the Veteran's claim arises from his disagreement with the initial evaluations assigned following the grant of service connection for PTSD. Courts have held that, in cases where service connection has been granted and an initial rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds the Veteran has been afforded adequate assistance in regard to the claim on appeal. VA obtained all medical treatment records identified by the Veteran. These records have been associated with the claims file. VA further afforded the Veteran appropriate VA medical examination addressing the severity of the Veteran's PTSD prior to May 2010. In particular, the November 2008 VA examination report combined with the other evidence of record provides sufficient findings to rate the Veteran's PTSD under the applicable rating criteria for the period prior to May 7, 2010. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim during this period; the Board is also unaware of any such evidence. The Veteran testified at a hearing before the undersigned in March 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, testimony was elicited in order to substantiate the claim for a higher rating. The Veteran was assisted at the hearing by his representative. Testimony was obtained as to the severity of the Veteran's PTSD during the appeal period. No pertinent evidence that might have been overlooked and that might substantiate the claim to a rating higher than assigned in the below decision was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating. Therefore, the Board finds that substantial compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the Board will address the merits of the claim. II. Evaluation of PTSD The Veteran seeks an evaluation in excess of 10 percent prior to May 7, 2010. He testified before the undersigned in March 2013. He reported that his symptoms included chronic sleep disturbance; nightmares; waking 3-4 times a night; intrusive thoughts at work; ritualistic behaviors, including nightly security checks and meticulousness in habits; hypervigilance and hyperarousal; detachment and estrangement from others; reactivity including anger to stimulating events; intrusive memories and intense visual memories; and irritable mood. The Veteran indicated that he had held his present job for 7 years and had a good relationship with his boss, but noted that his boss had spoken to him because of some expressions of anger toward some employees that were not performing their work. He indicated that he had a couple weeks off from work due to PTSD. He reported that he use to sleep with a gun, but his wife disapproved, and he now sleeps with a "fish knocker" that he described as a "piece of wood with a chunk of metal on the end." He reported that he feels like he will explode when people do not live up to his standards. The Veteran stated that he has been married for 32 years and they were separated for a period of 7 months in 1993. He indicated that he received all his PTSD treatment through the VA, which included monthly individual counseling sessions. He denied any periods of hospitalization for PTSD. He reported that his medications caused him to feel tired and have headaches, which were attributed to dehydration. The Veteran denied having friends outside his family with the exception of a friend in Arizona whom he sees once a year. General Legal Criteria and Rating Considerations Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Schedular Criteria PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide that a 30 percent evaluation is warranted 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). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. A 70 percent rating 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 circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating 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 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, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency 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. When evaluating the level of disability from a mental disorder, the rating agency 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. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). A GAF (Global Assessment of Functioning) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). This is more commonly referred to as DSM-IV. A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) 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 indicative of 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. The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Analysis Having carefully reviewed the evidence of record, the Board finds that the evidence supports the assignment of an initial evaluation of 30 percent for PTSD, and no more prior to May 7, 2010. Prior to May 7, 2010, the impairment from the Veteran's PTSD more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks rather than reduced reliability and productivity. Neither the lay nor the medical evidence more nearly reflects the frequency, severity, or duration of psychiatric symptoms required for an evaluation in excess of 30 percent prior to May 7, 2010. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. It is noted that the Veteran acknowledged at his hearing that he believed he met only the criteria for a 30 percent rating prior to May 7, 2010. A private treatment note dated in November 2008 and report of VA examination dated in November 2008 each reflect a diagnosis for PTSD. On VA examination, the Veteran reported that he was married with 4 adult children and 5 grandchildren; he described the marriage as stable and supportive. He further reported positive relationships with others, contacts with Marine buddies, and regularly attending reunions. However, he noted that he spent most of his time with his wife, whom he described as his best friend. His leisure time was spent with family. He reported working in construction for 10-20 years and having lost less than 1 week from work due to seasonal variations. Mental status examination showed him to be neatly groomed, casually dressed, with unremarkable psychomotor activity. There was no impairment of orientation, speech, thought process or content, judgment, or memory. Mood was anxious, but affect appropriate. He denied panic attacks. Impulse control was good and there were no episodes of violence. The Veteran reported obsessive/ritualistic behavior of "frequent security checks and says he is meticulous in his habits." PTSD was characterized of mild severity and a GAF score for 68 was assigned. In addition, the examiner noted that symptoms included chronic sleep disturbance; nightmares; waking at night; intrusive thoughts and memories; hyperarousal; and irritable mood. Report of VA examination dated in May 2010 reflects similarly a diagnosis for PTSD and GAF score for 65-67, current. It was noted that his current symptoms included intrusive thoughts and vivid recollections of traumatic events, and some sleep disturbance (frequent awakening), and increased anxiety in response to triggering stimuli resolved with taking a break to calm down. The examiner characterized the Veteran's symptoms as resulting in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks rather than reduced reliability and productivity. The lay and the medical evidence of record more nearly reflects the frequency, severity, or duration of psychiatric symptoms required for the assignment of a 30 percent evaluation, and no more, for PTSD prior to May 7, 2010. The evidence shows that the Veteran was employed full-time and had lost little time from work due to PTSD during this period. It further shows that he has meaningful relationships with his family, especially his wife. Although the Veteran experienced anxiety, it was not shown to be constant and he had no episodes of panic attacks. Also, the Veteran's sleep disturbances and other symptoms have not caused him to miss more than a couple weeks of work per his testimony. The Veteran's GAF score further reflects that he was generally functioning well and acknowledged some conflicts at work such as described by the Veteran. Accordingly, the claim for an initial 30 percent disability evaluation prior to May 7, 2010, is granted. The Board finds no basis to stage this rating during this period as the Veteran did not meet the criteria for the next higher evaluation at any time during the appeal period. See Fenderson, supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2012). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the disability are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not warranted. ORDER Prior to May 7, 2010, an initial 30 percent evaluation for PTSD, and no more, is granted. REMAND After careful review of the record, the Board finds that further development is required. VA's duty to assist requires that VA obtain a medical examination when necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). Where the evidence of record does not reflect the current state of the disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Also, reexamination will be requested whenever there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); VAOPGCPREC 11-95 (April 7, 1995) (when a Veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing a new examination). Here, the Veteran testified in March 2013 that his anger symptoms had worsened and were worsening since his last VA examination. Therefore, a new examination to ascertain the current severity of the Veteran's service-connected PTSD is necessary before the Board may consider the claim for a rating in excess of 30 percent from May 7, 2010. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C., for the following action: 1. All outstanding pertinent treatment records, if any, should be obtained and associated with the record. 2. The Veteran should be scheduled for a VA examination to ascertain the current severity of his service-connected PTSD. The claims file must be available for review along with a copy of any pertinent medical records located in the Virtual VA file that are not in the claims file. The RO should review the examination report to ensure that all information necessary for rating the disability is provided. 3. The RO or the AMC should conduct any other development deemed appropriate. 4. The RO or the AMC should then readjudicate the claim for an evaluation in excess of 30 percent from May 7, 2010, with consideration of the evidence added to the record since the most recent supplemental statement of the case. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs