Citation Nr: 1310832	
Decision Date: 04/02/13    Archive Date: 04/11/13

DOCKET NO.  11-33 611	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel



INTRODUCTION

The Veteran served on active duty from January 1966 to July 1970.

This matter is on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  

The issues of entitlement to service connection for a heart disorder and acid reflux disease have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they referred to the AOJ for appropriate action.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's PTSD has been characterized by isolation, flashbacks, insomnia, panic attacks approximately 2-3 times per week and moderate to severe depression; obsessional rituals, impaired impulse control, near-continuous panic or depression affecting ability to function independently, spatial disorientation, illogical or obscure speech, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships sufficient to warrant an increased rating has not been shown.


CONCLUSION OF LAW

The criteria for an initial 50 percent rating, but no more, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Here, neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  

Rather, the Veteran's claim arises from her disagreement with the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained her service treatment records and VA outpatient treatment records.  Further, the Veteran submitted statements in support of her claim.  

The Board notes that the Veteran stated in October 1997 that she was in receipt of disability benefits from the Social Security Administration (SSA).  In general, VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Indeed, the Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992).

In this case, however, the Veteran's claim for SSA benefits predate the period on appeal by many years.  As such, it is very unlikely that there are any relevant records in the SSA's possession that are probative to the claim on appeal, and remanding this claim for these records would serve only to unnecessarily delay its adjudication. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant).  Cf. Moore v. Shinseki, 555 F.3d 1369 (2009) (holding that records from other than a relevant period on appeal must nevertheless be considered, as 38 C.F.R. § 4.1 requires that "a veteran's disability must be evaluated in light of its whole recorded history").

A VA examination with respect to the issue on appeal was also obtained in May 2010.  38 C.F.R. § 3.159(c) (4).  To that end, when VA undertakes to provide a VA examination or, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the VA examination obtained in this case is more than adequate, it is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).  

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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.  See 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).

In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

In this case, the Veteran is currently has a 10 percent initial disability rating for her service connected PTSD under the general rating criteria set forth in 38 C.F.R. § 4.130 (2012).  Under these criteria, a 30 percent rating is for application where there is 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 and anxiety; 
* suspiciousness; 
* panic attacks (weekly or less often); 
* chronic sleep impairment; and 
* mild memory loss (such as forgetting names, directions, recent events). 
See 38 C.F.R. § 4.130, DC 9411 (2012).

Similarly, a 50 percent rating is warranted under DC 9411 when there is evidence of occupational and social impairment with reduced reliability and productivity due to symptoms such 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 or impaired abstract thinking; 
* disturbances of motivation and mood; or 
* difficulty in establishing effective work and social relationships. 
See Id. 

As an initial matter, the Board has reviewed the evidence and determines that a 50 percent rating is warranted based on the Veteran's symptoms, as the evidence does reflect some symptoms that are more severe that what would be warranted for her current rating.  For example, in a January 2010 psychiatric evaluation (albeit over telephone), she complained of depressive symptoms that made it difficult to do her work.  She also complained of a poor appetite and trouble concentrating.   In March 2010, she stated that she was depressed most of the day, and experienced excessive anxiety and difficulty concentrating.  

Although such symptoms may seem mile, the symptoms at her VA examination in May 2010 appear more significant that previously indicated.  On that occasion, she stated that she generally stays at home, although this appears primarily due to her physical health problems.  Moreover, she also complained of mild memory impairment, avoidance of difficult recollections, and that she experienced panic attacks approximately 2 to 3 times per week. This frequency of panic attacks suggests a level of impairment much more than 10 percent.  The Board also notes that her Beck Depression Incentory-2 (BDI), which was administered at this VA examination, indicated a "moderate to severe level of depressive symptomatology."  

In addition to the above symptoms, the Board also concludes that the Veteran's assigned Global Assessment of Functioning (GAF) scores appear to represent impairment that is worse than 10 percent.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)).  In this case, although her GAF scores have been as high as 65 (in January 2011), they have also been as low as low as 57 (at her VA examination in May 2010).  

A GAF of 51-60 reflects "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), while scores ranging from 61-70 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, has some meaningful interpersonal relationships. 

It should be pointed out that it is difficult in some cases to rely on assigned GAF scores, especially if they are inconsistent with the observed symptoms.  In this case, however, they appear relatively consistent with the symptoms the Veteran has mentioned.  Under the GAF scale, her symptoms are better classified as "moderate" than "mild" and likely worse than a 10 percent rating would represent.    

Based on these symptoms, the Board concludes that the Veteran exhibits sufficient social impairment which, combined with other symptoms such as panic attacks, indicates a diminished overall functioning.  While not all of the symptoms associated with a 50 percent rating are present, they appear to be more significant than even a 30 percent rating.  Therefore, a 50 percent rating is warranted for the entire period on appeal due to her PTSD symptoms.

Next, the Board will consider whether a rating in excess of 50 percent is warranted for the Veteran's PTSD. In order to be entitled to the next-higher 70 percent rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: 
* suicidal ideation; 
* obsessional rituals which interfere with routine activities; 
* impaired impulse control (such as unprovoked irritability with periods of violence); 
* near-continuous panic or depression affecting ability to function independently, appropriately and effectively; 
* spatial disorientation; 
* speech intermittently illogical, obscure, or irrelevant; 
* neglect of personal appearance and hygiene; 
* difficulty in adapting to stressful circumstances (including work or a work-like setting); and 
* inability to establish and maintain effective relationships. 
See 38 C.F.R. § 4.130, DCs 9411.

Based on the evidence of record, the Board concludes that a rating in excess of 50 percent is not warranted.  As an initial matter, the evidence does not generally indicate the existence of any physical manifestations or similar symptoms, such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical speech, near-continuous panic or depression, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or any other similar types of symptoms.  

For example, at her January 2010 psychiatric evaluation, she denied any suicidal ideation and mentioned no psychotic symptoms.  In February 2010, she stated that she felt depressed "off and on" and, while she did admit to "fleeting thoughts" of suicide, she denied actual ideation, because she could "never do that."  In March 2010, she complained of symptoms such as insomnia, psychomotor agitation and a diminished ability to concentrate.  However, she did not indicate symptoms such as obsessional rituals, impaired impulse control, nor did she indicate any difficulty communicating.  

Next, at her VA examination in May 2010, she again did not demonstrate many significant objective symptoms.  On that occasion, she stated that she experienced intermittent sleep and persistent recollections of her military experience.  However, she did not exhibit any inappropriate behavior, her impulse control was fair, and speech was unremarkable.  She appeared neat and well-groomed, her affect was full and her mood was seen as good.  Her thought content and process was unremarkable and, although she stated that she experiences panic attacks approximately 2 to 3 times per week, she has never indicated that her panic attacks are "near-continuous."  

The Board recognizes that this VA examiner identified relatively severe depressive symptoms based on the BDI-2 test, and also observed characteristics such as list of interest, loss of energy, loss of interest in sex and insomnia which were characterized as "severe."  However, the Board does not conclude that these symptoms are severe to the point that a 70 percent rating is warranted.  

The symptoms observed at evaluations since this VA examination appear less severe than what were previously observed.  For example, in July 2011, the Veteran stated that her anxiety was heightened, but that her mood had been "good," and she denied feeling depressed.  She was also not seen to be a threat to herself.  In an August 2011 evaluation, she appeared relaxed, open, and cooperative.  Her speech was only mildly pressured, her mood was euthymic and her affect congruent.  Moreover, actions were appropriate, her thought processes were logical and relevant, and her judgment and insight was adequate.  Finally, her impulse control was seen as adequate and she was fully oriented.  

Therefore, when considering the Veteran's observed symptoms in their entirety, most notably at her VA examination, the evidence does not indicate that the presence of objective PTSD-related symptoms such as suicidal ideation, obsessional rituals, illogical or obscure speech, near-continuous panic or depression, impaired impulse control, spatial disorientation, or neglect of personal appearance or any other similar symptoms to the point where a rating in excess of 50 percent would be warranted.  

Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment.  Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002).  As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause deficiencies in most areas, to include social and occupational inadaptability.  

In this regard, the evidence indicates that the Veteran is somewhat isolated from others.  However, it does not appear that her symptoms are so severe as to warrant a rating in excess of 50 percent.  For example, in January 2010, she stated that her depression made it "somewhat difficult" to take care of things at home or get along with others.  However, at another evaluation that month, the evaluating psychiatrist noted that she "enjoyed talking about her past life" as a nurse and had good support in the community.  

At an evaluation in February 2010, she stated that she was close with two friends for many years, but had lost contact with them more recently.  However, she does keep touch with her nieces, and she apparently kept in touch with other members of her family, but they have since passed away.  While she left her job in 1991, this was due to other medical reasons.  In fact, she stated that she missed working.  

At her VA examination in May 2010, she stated that she stays at home most days, where she takes care of her pets, watches television and talks on the phone.  However, the primary reason she stays at home appears related to non-psychiatric disorders.  Moreover, while she mentioned that she is unable to perform household chores or exercise, these also appear primarily due to her physical disorders.  She also stated she avoids confrontation, and she has few contacts because she does not trust people.  The VA examiner also concluded that there was no total occupational or social impairment.  However, the examiner did note that she lacks desire to make decisions and that she is self-critical and withdraws from her family.  

At an evaluation in January 2011, she stated that her depression had been worse over the most recent month, but also stated that she can live independently.  Someone cleans her house for her, and she finds that her pets are therapeutic.  She appears to have no family support, because many (if not all) have passed away.  In July 2011, she stated that "everything seems to be crowding in on me," and apparently does not go outside much.  However, much of this isolation appears to be due to her physical limitations.  

Overall, the Board concludes that the Veteran's symptoms of isolation appear more related to her physical disorders than her psychiatric symptomatology.  Moreover, the evidence indicates that she is well aware of her symptoms, and desires to be more socially involved than she currently is due to her physical limitations.  As such, an increased rating is not warranted on this basis.  

As before, the Veteran's GAF scores have been reviewed when considering the appropriate disability rating which, in this case, have ranged from as high as 65 (in January 2011) and as low as 57 (at her VA examination in May 2010).  A GAF of 51-60 reflects "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), while scores ranging from 61-70 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, has some meaningful interpersonal relationships.  

The Board finds that the Veteran's GAF scores are generally consistent with her observed symptoms.  However, in the Board's view, a rating in excess of 50 percent would require symptoms that are more "severe" than "moderate," and the GAF scores to not reflect that her symptoms are so severe.  Therefore, an increased rating is not warranted based on her GAF scores.  

In considering the appropriate disability rating, the Board has also considered the Veteran's statements that her PTSD is worse than the ratings she has received.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

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 this case, the Board recognizes that the Veteran was a registered nurse, and she is competent to make some medical conclusions.  However, there is no indication that she has any training in psychiatric disorders, and is not competent to identify a specific level of disability of her PTSD according to the appropriate diagnostic code.

On the other hand, such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.

The Board has also considered whether referral for an extraschedular evaluation is warranted.  The question of an extraschedular rating is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular rating when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

To determine whether referral for such consideration is warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria. Specifically, relevant diagnostic code and general rating formula addresses both objective symptoms and social and occupational impairment.  Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board's analysis.  While the applicable diagnostic code allows for higher ratings, the Board has explained why a higher rating was not warranted.  Therefore, referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. Thun, 22 Vet. App. at 111; Bagwell, 9 Vet. App. at 337; Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, she has not submitted evidence that she is unemployable due to her service-connected disability.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

In sum, after a careful review of the evidence of record, the Board finds that a 50 percent rating, but no more, for the Veteran's acquired psychiatric disorder is warranted, and the appeal is granted to this extent.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An initial 50 percent rating, but no more, for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.




____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs