Citation Nr: 1311362 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-28 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent, prior to May 1, 2009, for posttraumatic stress disorder. 2. Entitlement to an evaluation in excess of 70 percent, since May 1, 2009, for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and S.A. ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied entitlement to an increased evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). In July 2009, the RO issued a rating decision which granted an increased evaluation of 70 percent, effective May 1, 2009, for PTSD. The Veteran continues to seek a higher evaluation for this condition. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a claim remains in controversy where less than the maximum available benefits are awarded). In June 2010, the Veteran testified at video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been placed in the claims file. In February 2011, the Board remanded this matter for additional evidentiary development. In September 2011, the RO issued a rating decision which granted service connection at a 100 percent disability rating for coronary artery disease, status post insertion of automated implantable cardioverter defibrillator, effective March 21, 2006. Accordingly, the Board need not address any issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. See VAOGCPREC 6-99 (1999). FINDINGS OF FACT 1. Throughout the course of this appeal, the Veteran's PTSD has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, manifested by symptoms such as anxiety, depression, irritability, anger, low motivation, intrusive thoughts, nightmares, difficulty sleeping, hypervigilance, exaggerated startle response, decreased concentration, and below average memory. 2. Throughout the course of this appeal, the Veteran's PTSD has not been manifested by symptoms analogous to total occupational and social impairment, and there is no evidence of 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; or memory loss for names of close relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 70 percent, but no more, for PTSD, prior to May 1, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an evaluation in excess of 70 percent for PTSD, since May 1, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012), 5103A; 38 C.F.R. § 3.159(b) (2012). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO's June 2008 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio, 16 Vet. App. at 187; see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the June 2008 letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Accordingly, the RO effectively satisfied the notice requirements with respect to the issues on appeal. The duty to assist was also met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained the Veteran's available service treatment records, his identified VA and private treatment records, and his pertinent records from the Social Security Administration (SSA). In April 2011, the RO provided the Veteran with a VA examination for PTSD. The examination was performed by a VA physician who had reviewed the Veteran's claims file, reviewed with the Veteran his history of his PTSD, examined the Veteran, and included rationales for the conclusions reached therein. The Board finds that this examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has not claimed that this examination was inadequate. Id. In February 2011, the Board remanded this matter directing the RO to schedule the Veteran for a new VA examination, and to obtain the Veteran's pertinent records from SSA. The RO subsequently scheduled the Veteran for a VA examination for PTSD in April 2011, and obtained the Veteran's pertinent records from SSA in November 2011. Accordingly, the directives of the Board's February 2011 remand have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). There is no indication that additional evidence relevant to the issues being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the evaluation is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. A June 2007 rating decision granted service connection for PTSD, assigning a 70 percent initial evaluation, effective from March 21, 2006; followed by a 50 percent evaluation, effective February 6, 2007. In January 2008, the Veteran filed his present claim seeking an increased evaluation in excess of 50 percent for his service-connected PTSD. In August 2008, the RO issued a rating decision which denied an increased evaluation in excess of 50 percent for PTSD. The Veteran timely appealed this decision. In July 2009, the RO issued a rating decision which granted an increased evaluation of 70 percent for the Veteran's PTSD, effective from May 1, 2009. The Veteran continues to seek a higher evaluation for this condition. See AB, 6 Vet. App. at 38. The Rating Schedule establishes a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, 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). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Id. A 50 percent rating is warranted when there is evidence demonstrating ooccupational 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 and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2011). A 70 percent rating is warranted for PTSD when there is evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 work-like setting; and the inability to establish and maintain effective relationships. Id. A rating of 100 percent is warranted for PTSD when the evidence shows 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, to include maintenance of minimal personal hygiene; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. In evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See DSM-IV; Carpenter v. Brown, 8 Vet. App. 240 (1995). For example, a score of 41-50 illustrates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score of 51 to 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 a GAF score can be highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders, the GAF scores assigned in a case are not dispositive of whether a higher evaluation is warranted; rather, they must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a) (2012). Throughout the course of this appeal, the Veteran's PTSD has been assigned GAF scores ranging from 41 to 51. Specifically, a March 2007 mental evaluation performed for SSA noted that the Veteran's GAF score ranged from 45 to 50. VA examinations for PTSD, performed in July 2008 and April 2011, revealed GAF scores of 49 and 45, respectively. A GAF score of 41 to 50 is contemplated for serious symptoms, such as suicidal ideation, severe obsessional rituals, frequent shoplifting, or any serious impairment in social, occupational, or school functioning. A GAF score between 51 and 60 reflects moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social, occupational, or school functioning. See 38 C.F.R. §§ 4.125, 4.130. While the Board has considered the degree of functioning as evidenced by this reported range of GAF scores, it is but one factor for consideration in assigning a rating in this case. See Brambly v. Principi, 17 Vet. App. 20, 26 (2003). After a longitudinal review of the entire record, the Board concludes that the Veteran's PTSD most nearly approximates the criteria contemplated by the 70 percent rating throughout the course of this appeal. 38 C.F.R. § 4.7. Throughout the course of this appeal, the Veteran's PTSD has been manifested by anxiety, depression, irritability, anger, intrusive thoughts, nightmares, difficulty sleeping, hypervigilance, exaggerated startle response, decreased concentration, below average memory, and low motivation. At his June 2010 hearing before the Board, the Veteran, his spouse, and friend, testified that the Veteran's PTSD was manifested by difficulty sleeping, inability to focus, low ambition, irritability, poor memory, poor hygiene, social isolation, and hypervigilence. The Veteran further testified that his PTSD prevents him from being able to work in construction. Moreover, VA treatment records note intermittent thoughts of suicidal and homicidal ideation. Resolving all reasonable doubt in favor of the Veteran, the Board concludes that a 70 percent evaluation for manifestations of the Veteran's service-connected PTSD is warranted throughout the course of this appeal due to objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id.: see also 38 C.F.R. § 4.130, Diagnostic Code 9411; Carpenter, 8 Vet. App. at 242. The evidence does not reflect that the Veteran's service-connected PTSD was manifested by symptoms of such severity to warrant a disability rating in excess of 70 percent at any time throughout the course of this appeal. At no point during this time frame does the evidence of record reflect symptoms that resulted in total occupational and social impairment. Although the Veteran does have significant occupation impairment, this is acknowledged in the 70 percent disability rating assigned. VA treatment and examination reports have consistently described the Veteran as being fully oriented, with normal speech, a logical and goal directed thought content, grossly intact memory, and without hallucinations or delusions. The VA examiner in July 2008 described the Veteran's symptoms as moderate. At his June 2010 hearing before the Board, testimony was presented indicating that the Veteran, formerly employed in the field of construction, was in the process of building an animal clinic for his spouse's business. Finally, the VA examiners in July 2008 and April 2011 both opined that the Veteran was not unemployable as a result of his PTSD. Although significant social impairment is also shown, it is adequately recognized in the assignment of the 70 percent disability rating. The April 2011 VA examination for PTSD noted that the Veteran assists his spouse in caring for animals, attends church regularly, and was involved in family activities. The Veteran also reported that he had a number of projects that he was currently working on, but had difficulty completing them. There is no evidence of 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, to include maintenance of minimal personal hygiene; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected PTSD, the evidence shows no distinct periods of time throughout the course of this appeal which the Veteran's PTSD varied to such an extent that a rating greater than 70 percent would be warranted. See Hart, 21 Vet. App. at 505. With regard to this issue, the Board has considered the doctrine of reasonable doubt. However, based on all the evidence of record, to include all classifications by the examiners of the level of psychiatric impairment, the preponderance of the evidence of record does not show occupational and social impairment that meets the criteria for a rating in excess of 70 percent for service-connected PTSD throughout the course of this appeal. Accordingly, the doctrine of reasonable doubt is not for application, and therefore, a rating in excess of 70 percent for the Veteran's service-connected PTSD is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Consideration has been given regarding whether the schedular evaluation assigned is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The scheduler evaluation assigned is not inadequate. When comparing the disability picture of the Veteran's PTSD with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 70 percent disability rating. Ratings in excess of the 70 percent currently assigned are provided for certain manifestations of the service-connected PTSD, but the medical evidence of record does not demonstrate that such manifestations were present in this case. The criteria for the assigned 70 percent rating reasonably describes the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. ORDER An evaluation of 70 percent, but no more, for PTSD is granted, prior to May 1, 2009, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 70 percent for PTSD, since May 1, 2009, is denied. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs