Citation Nr: 1311074 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 07-31 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision by the Appeals Management Center (AMC) in Washington, D.C. The AMC granted service connection for posttraumatic stress disorder and assigned the current rating. This action was accomplished while the service-connected issue was on Remand from the Board. The case is otherwise within the jurisdiction of the Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in August 2011 and August 2012, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDING OF FACT The Veteran's service-connected posttraumatic stress disorder is presently characterized by no more than 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, and/or mild memory loss (such as forgetting names, directions, and recent events). CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for posttraumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.130 and Part 4, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned for the Veteran's service-connected posttraumatic stress disorder, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Moreover, there is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in October 2007, May 2008, and September 2012 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Increased Rating In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, including those offered during the course of a hearing before the undersigned Veterans Law Judge in May 2012, as well as VA (including Virtual VA) and private treatment records and examination reports. 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 Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran in this case seeks an increased evaluation for service-connected posttraumatic stress disorder. In pertinent part, it is contended that manifestations of that disability are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the 30 percent schedular evaluation now assigned. Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 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 evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). While the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including 38 C.F.R. § 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the degree of impairment resulting from a service-connected disability is a factual determination, with the Board's primary focus in such cases being upon the current severity of the service-connected disability. See Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the Francisco rule does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for the disability in question. Rather, at the time of the initial rating, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Accordingly, the analysis in this decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings are to be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, readjust the schedular ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing term in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). In the present case, in a rating decision of December 2006, the RO granted service connection (and a 30 percent evaluation) for posttraumatic stress disorder. The Veteran voiced his disagreement with the assignment of that 30 percent evaluation, and the current appeal ensued. In correspondence of September 2000, a private psychologist indicated that the Veteran's initial evaluation suggested the presence of some depression. Further noted was that the Veteran had been given a prescription for an antidepressant medication, and was in the process of taking some time off from work in order to evaluate what he wished to do. According to the evaluating psychologist, the Veteran's long term prognosis was "positive." In correspondence of March 2001, the same private psychologist who had furnished the September 2000 correspondence wrote that, while the Veteran had shown a "lot of progress" in the past few months, he still became ill at ease when discussing the possibility of returning to his prior position as a supervisor. Reportedly, the Veteran continued to have strong concerns that he could no longer function in that capacity. In correspondence of June 2001, the Veteran's private psychologist indicated that "several incidents" were part of the Veteran's problem. Reportedly, one of those incidents involved his daughter having been shot by her ex-boyfriend. According to the Veteran's psychologist, during the year following his daughter's shooting, the Veteran began to have flashbacks, as well as dreams of "attacking and killing." Further noted was that, notwithstanding the Veteran's 30 years of government service, he had reached a point where he was "seriously fed up" with the bureaucracy. According to the Veteran's psychologist, following his taking a leave of absence, the Veteran became calmer, showed much less stress in his life, and found that some of his feelings of rage and violence had receded. Moreover, on a daily basis, he accomplished some of the things he wished to, and worked through some of the issues of his past, including his daughter's shooting and his Vietnam experience. However, when the issue of returning to work would arise, the Veteran's tension and anger would become more prevalent. Vet Center records covering the period from January to May 2002 show treatment during that time for posttraumatic stress disorder. At the time of a VA outpatient initial psychiatric assessment in mid-March 2006, the Veteran indicated that his difficulties had begun five years earlier, at which time he was experiencing "much difficulty" with his job as a supervisor with the United States Postal Service. According to the Veteran, at that time, he sought counseling with a community psychologist, following which he realized that he needed to retire. On mental status examination, the Veteran was cooperative, though somewhat guarded. His behavior was tense, but eye contact was described as good. At the time of evaluation, the Veteran's speech was fluent, hyperverbal, and at times difficult to redirect. His mood was anxious, and his affect congruent and intense. Noted at the time was that the Veteran's thoughts were tangential, but nonpsychotic. Moreover, his judgment and insight were good. Significantly, the Veteran denied any problems with suicidal ideation. During the course of VA outpatient treatment in June 2006, it was noted that the Veteran had occasional bouts of anger dyscontrol, though he could usually control these through "intense prayer." Also noted were problems with irritability and intolerance of others, though, according to the examiner, these were not causing the Veteran consequences, and were happening somewhat less often. On mental status examination, the Veteran appeared calm, cooperative, and reasonable. His speech showed a normal rate and rhythm, and his mood was euthymic. At the time of evaluation, the Veteran's affect was mood congruent and full. His thought processes were logical, coherent, organized, and goal-directed, and there was no evidence of any unusual thought content. Both suicidal and homicidal ideation were absent, and there was no evidence of any disturbance of perception. The Veteran's sensorium was clear, aware, and attentive, and his memory was intact. Insight was adequate, and the Veteran's judgmental capacity was described as "responsible." The pertinent diagnosis noted was posttraumatic stress disorder, with a Global Assessment of Functioning Score of 70. During the course of VA outpatient psychiatric treatment in February 2007, the Veteran indicated that he was interested in applying for a "higher rating." According to the Veteran, he had been experiencing difficulty maintaining sleep, as well as problems with recurring nightmares. Moreover, he remained "very hesitant" to take medication. On mental status examination, the Veteran was pleasant and cooperative, with fluent speech, and behavior which was appropriate. While his mood was anxious, his affect was full range and appropriate to content. At the time of evaluation, the Veteran's thoughts were organized, and both judgment and insight were described as good. Significantly, the Veteran denied any problems with suicidal ideation. At the time of a VA psychiatric examination in September 2007, it was noted that the Veteran's claims folder and medical records were available, and had been reviewed. According to the Veteran, he had felt depressed for between two and three days over the course of the past week, with that depression lasting from four to six hours at a time. However, the Veteran denied any problems with anhedonia, and there were neither signs nor symptoms of mania. When asked to describe the degree and quality of his social relationships, the Veteran indicated that he had from 25 to 30 friends. Moreover, he participated in fishing, tennis, and various exercise activities. When further questioned, the Veteran denied any suicide attempts or violence/assaultiveness. On mental status examination, the Veteran's psychomotor activity was described as unremarkable. Speech was likewise described as unremarkable, being spontaneous, clear, and coherent. At time of examination, the Veteran was cooperative, friendly, relaxed, and attentive. While his affect was somewhat constricted, his attention was intact. The Veteran was oriented to person and place, though not to time, missing the correct date by two days. Thought processes and content were described as unremarkable, and there was no evidence of any delusions. At the time of examination, the Veteran understood the outcome of his behavior. Moreover, as regards insight, the Veteran understood that he had a problem. The Veteran denied any problems with hallucinations, and similarly denied any inappropriate and/or obsessive/ritualistic behavior. Moreover, there was no evidence of panic attacks, or of either suicidal or homicidal thoughts. According to the examiner, the extent of the Veteran's impulse control was fair. However, there was no evidence of any episodes of violence. The Veteran was able to maintain minimal personal hygiene, and there was no evidence of any problem with the activities of daily living. At the time of evaluation, the Veteran's remote, recent, and immediate memory were within normal limits. However, according to the Veteran, he at times attempted to avoid thoughts, feelings, or conversations associated with his trauma, and experienced a feeling of detachment or estrangement from others. The Veteran complained of difficulty concentrating, as well as hypervigilance. Significantly, in the opinion of the examiner, the Veteran did not meet the full criteria for posttraumatic stress disorder. Rather, his current psychiatric diagnosis was consistent with an adjustment disorder with anxiety. Noted at the time of examination was that the Veteran had been employed with the United States Postal Service for 32 years, and was currently employed in a subcontractor/cleaning business. The Global Assessment of Functioning score at the time of examination was 65. According to the examiner, improvement in the Veteran's symptomatology might be due to the benefits of psychiatric treatment. During the course of VA outpatient treatment in November 2007, the Veteran was described as neatly dressed and groomed, with an initially neutral mood, which became somewhat dysphoric toward the end of the session. However, the Veteran was contextually appropriate to the various topics of conversation. The Veteran's conversational skills were fluent and goal-directed, and there was no evidence of any thought disorder. At the time of evaluation, intellectual functioning was within normal limits. Insight was moderate, and judgment regarding appropriate versus inappropriate behavior was good. At the time of VA outpatient treatment in early July 2008, the Veteran was described as casually dressed, with eye contact and grooming which were within normal limits. The Veteran was alert to person, time, place, and situation, and there was no evidence of any psychomotor agitation or retardation. The Veteran's speech displayed normal volume, rate, and tone, though his mood was serious, characterized by mild dysphoria. The Veteran's affect was congruent, though he did voice some frustration. Thought content showed no evidence of any suicidal or homicidal ideation, and there was no evidence of either delusions or hallucinations. The Veteran's thought processes were linear and goal-oriented, and his insight was described as good. Judgment and reliability were likewise described as good, though the Veteran was, apparently, somewhat dissatisfied with his current disability rating. At the time of a more recent VA psychological examination in September 2012, it was noted that the Veteran's claims folder and medical records were available, and had been reviewed. When questioned, the Veteran indicated that he sometimes engaged in verbal altercations "when people tried him," though he denied any physical aggressiveness. The Veteran further indicated that he experienced recurrent and distressing recollections of past events, including images, thoughts, and perceptions, and that he sometimes attempted to avoid thoughts, feelings, or conversations, as well as activities, places, or people associated with his past trauma. Also noted were problems with hypervigilance. According to the examiner, the Veteran did not meet the full criteria for posttraumatic stress disorder. Current symptomatology included a depressed mood and anxiety. According to the examiner, the Veteran's posttraumatic stress disorder produced occupational and social impairment due to mild or transient symptoms which decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress, with symptomatology controlled by medication. The pertinent diagnosis noted was posttraumatic stress disorder, with a current Global Assessment of Functioning score of 72. Pursuant to applicable law and regulation, the 30 percent evaluation currently in effect for the Veteran's service-connected posttraumatic stress disorder contemplates the presence of 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, and/or mild memory loss (such as forgetting names, directions, or recent events). In contrast, a 50 percent evaluation requires demonstrated evidence of 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/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Global Assessment of Functioning Scores are 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 the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), page 32]. A Global Assessment of Functioning Score of between 61 and 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, with some meaningful interpersonal relationships. A Global Assessment of Functioning Score of between 71 and 80 is defined as: if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork)." While the Rating Schedule does indicate that the rating agency must be familiar with the Diagnostic and Statistical Manual of Mental Disorders, it does not assign disability percentages based solely on Global Assessment of Functioning Scores. See 38 C.F.R. § 4.130 (2012). Rather, Global Assessment of Functioning Scores are but one factor to be considered in conjunction with all other pertinent evidence of record. In light of the evidence, it is clear that no more than a 30 percent evaluation is warranted for the Veteran's service-connected posttraumatic stress disorder. In fact, at no time during the course of the current appeal has the Veteran exhibited symptomatology consistent with a 50 percent evaluation, such as a flattened affect, circumstantial, circumlocutory, or stereotyped speech, or panic attacks. Moreover, based on the evidence of record, the Veteran experiences no impairment of either short- or long-term memory. Significantly, at the time of the aforementioned VA psychiatric examination in September 2007, the Veteran's speech was spontaneous, clear, and coherent. While his affect was somewhat constricted, his thought processes and content were unremarkable, and there was no evidence of any delusions. Judgment and insight were similarly adequate, and there was no evidence of either obsessive or ritualistic behavior. At the time of examination, the Veteran's remote, recent, and immediate memory was within normal limits, and there was no evidence of either panic attacks, or of homicidal or suicidal thoughts. Significantly, as of the time of a more recent VA psychiatric examination in September 2012, the Veteran displayed only a depressed mood, in conjunction with some anxiety. That examination showed no evidence of any flattened affect, or of circumstantial, circumlocutory, or stereotyped speech. Nor was there evidence of impairment of short- and/or long-term memory, or of panic attacks. Reported Global Assessment of Functioning scores have been consistent with no more than mild symptomatology, as demonstrated by scores ranging from 65 to 72. Under the circumstances, the Board is of the opinion that the 30 percent evaluation currently in effect for the Veteran's posttraumatic stress disorder is appropriate, and that an increased rating is not warranted. Moreover, based on a review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected posttraumatic stress disorder is appropriately contemplated by the Rating Schedule, and that referral for consideration of an extraschedular evaluation is, therefore, not in order. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). ORDER Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs