Citation Nr: 1312920 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 12-02 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1936 to January 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that assigned the Veteran an increased evaluation of 30 percent for his PTSD, effective December 4, 2009. With respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Please note 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 Throughout the appeal period the Veteran's PTSD has been manifested by panic attacks, an exaggerated startle response, avoidance of activities and discussion related to service, distressing thoughts related to service, and impairment in social and occupational functioning. CONCLUSION OF LAW As of December 4, 2009 the Veteran's PTSD warrants an evaluation of 50 percent, but no higher. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a letter sent to the Veteran in December 2009. This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). During the pendency of the appeal, the VCAA notice requirements were interpreted as follows. For an increased compensation claim, the veteran must be notified that he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (Vazquez-Flores I). The United States Court of Appeals for the Federal Circuit (Federal Circuit) subsequently held that the notice described in 38 U.S.C. § 5103(a) need not be veteran specific, i.e., it need not notify the veteran of alternative diagnostic codes, and that that the statutory scheme does not require 'daily life' evidence for proper claim adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II) (vacating and remanding in part Vazquez-Flores I). Most recently, the Court clarified that the notice must advise the veteran to submit evidence demonstrating the effect that the worsening of his disability has on his employment. Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III). The Veteran was notified of these changes in the December 2009 letter. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination in May 2010 to determine the severity of his PTSD. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the conclusions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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. Id. A 70 percent disability evaluation is warranted when there is 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. As evidenced by use of the phrase "such symptoms as," followed by a list of examples, this list of symptoms in the rating criteria is meant to be mere examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). However, if the evidence shows the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, at 443. The Federal Circuit Court has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). As the Veteran filed this increased rating claim in December 2009 the Board must consider the evidence concerning this disability dating back to December 2008, one year prior. See 38 C.F.R. § 3.400(o); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). The Veteran's wife has submitted statements indicating that the VA should consider private treatment records from various physicians, to include Dr. S. See e.g., July 2010 statement. The Board has considered all relevant records for the one year timeframe previous to when the Veteran filed his claim. Unfortunately, unless the Veteran alleges that an earlier effective date is warranted for the assignment of a specific evaluation, the Board is limited to a review of records beginning in December 2008. Effectively since December 4, 2009 the Veteran's PTSD has been rated as 30 percent disabling. For the reasons discussed below, the Board finds that a 50 percent rating has been warranted as of December 4, 2009. Initially, the Board observes that the Veteran has been diagnosed with dementia, in addition to his PTSD. The RO determined that the Veteran's dementia was not related to his service-connected PTSD. See June 2010 rating decision. The Board will rely on findings from physicians who can differentiate the symptoms of the Veteran's PTSD from his dementia symptoms. See e.g., May 2010 VA examination report. However, when it is not possible to separate the effects of a service-connected disability from a non-service-connected disability, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant's favor, thus attributing such signs and symptoms to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (emphasis added). The mental status findings in the claims file indicate that the Veteran's non-service-connected dementia causes severe symptoms including memory loss and disorientation. See May 2010 VA examination report. His dementia also affects his communication in that he has abnormal speech. With regard to PTSD specific symptoms, the May 2010 VA examiner found that the Veteran experienced anxiety and panic attacks. The Veterans wife also submitted a statement with the January 2012 VA Form 9 that the Veteran's panic attacks occurred daily. This has been taken into account with the 50 percent evaluation. At his May 2010 VA examination the Veteran and his wife reported that he has an exaggerated startle response, although it was unclear if this symptom was active or in remission. There is also evidence that the Veteran easily upsets and becomes irritated due to his PTSD. See May 2010 VA examination report. The Veteran and his wife also reported that he experiences feelings of guilt from surviving many of the traumas he experienced on active duty. See April 2010 statement. With regard to social functioning, the Veteran and his wife have reported that he avoids thoughts, feelings, or conversations associated with the trauma from service. It was also reported that he avoided activities, places, or people that arouse recollections of service. The Veteran has recurrent recollections of service, to include events which occurred at Pearl Harbor. The Veteran also experiences intense distress at exposure to events which are similar to his active duty service. The examiner noted the Veteran had physiological reactivity, including stomach and headache problems, to cues that symbolized any aspect of the trauma from service. See May 2010 VA examination report. The Board observes that a higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology more closely approximates a 70 percent evaluation. In this regard, the Veteran and his wife do not report periods of impaired impulse control, such as unprovoked irritability with periods of violence. To the contrary, the Veteran reported no history of violence at his May 2010 VA examination. There was also no neglect of personal appearance or hygiene, although it was noted that the Veteran's wife takes care of these activities of daily living. The Veteran also denied suicidal or homicidal ideations at his May 2010 VA examination and there is no evidence to the contrary. These symptoms could have warranted a higher evaluation. Also during his psychological assessment the Veteran and his wife specifically denied any hallucinations or delusions. See also May 2010 VA examination report. Finally, there is no evidence he has obsessional rituals interfering with his routine activities. Although there were some speech and disorientation problems noted at the May 2010 VA examination, these were related to his non-service-connected dementia. The Board has also considered the December 2010 VA treatment record which included a statement that the Veteran did not have any current findings of PTSD. This statement was made as part of a telehealth consultation. However, the Board assigns more probative value to the May 2010 VA examiner who conducted a full length mental health examination, with both the Veteran and his wife, and specifically covered the symptoms of the Veteran's PTSD and how they differed from his dementia symptoms. The examiner also indicated he had reviewed previous medical records in coming to his conclusion. The December 2010 statement is afforded little probative value. The Board also acknowledges that the Veteran suffers from symptoms not covered under Diagnostic Code 9434. For instance, he has reported feelings of survivor's guilt and an exaggerated startle response. See e.g., May 2010 VA examination reports. However, all of the Veteran's symptoms have been taken into account when determining the most appropriate evaluation. It is clear from the competent evidence of record that the Veteran's PTSD manifestations throughout the appeal period have consistently included panic attacks, an exaggerated startle response, avoidance of activities and discussion related to service, distressing thoughts related to service, and impairment in social and occupational impairment. This level of social and occupational impairment, however, is consistent with his existing 50 percent rating. Also of record are the Veteran's GAF scores. GAF 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). The Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. The Board notes that while GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record and they will not be relied upon as the sole basis for an increased rating. The Veteran was assigned a GAF score of 10 at his May 2010 VA mental health evaluation. A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. Although reviewing the GAF score by itself would appear to entitle the Veteran to a higher evaluation, the GAF score assigned took into account the Veteran's diagnosis of PTSD and his non-service-connected dementia. The examiner did note that the two diagnoses were not related and that the symptoms of both disorders could be separated out. Even assuming that the low GAF score represented service-connected PTSD alone, it will not be relied upon as the sole basis for an increased disability rating. Instead, the Board must consider the entire claims file, including the private treatment records, VA examinations, and VA treatment when determining the proper rating. Taking into account all of the Veteran's PTSD symptoms discussed above, the Board finds that a 50 percent rating for PTSD is appropriate as of December 4, 2009. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that warrants the assignment of a 50 percent rating as of December 4, 2009. See 38 C.F.R. § 4.7. In addition to the medical evidence, the Board has considered the statements of the Veteran and his family in support of his claim. The Veteran and his family, as laymen, are competent to report on that as to which they have personal knowledge, such as anxiety, social impairment, and irritability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Since the allegations of these particular symptoms appear to be uncontradicted, even by medical findings of record, the Board also finds them to be credible and, thus, probative. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Rucker v. Brown, 10 Vet. App. 67 (1997) (indicating his competency to make these proclamations must be distinguished from the weight and credibility of his lay testimony, which are factual determinations going to the ultimate probative value of this evidence). However, as laymen, without the appropriate medical training and expertise, the Veteran and his family are not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his PTSD in relation to the applicable rating criteria. An examiner, including the VA compensation examiners, takes into consideration the Veteran's subjective complaints, his social and occupational history, and the results of the objective mental status evaluation in determining the overall severity of his depressive disorder. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Resolving reasonable doubt in favor of the Veteran, the Board concludes that the evidence discussed above supports no more than a 50 percent rating for the Veteran's PTSD as of December 4, 2009. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, the preponderance of the evidence is against a higher evaluation. Id. Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Board finds no such evidence in this particular instance, however. The Veteran's complaints related to his PTSD are considered under the appropriate diagnostic code. His primary symptoms are anxiety, recurring traumatic thoughts, and social impairment. All of his symptoms are accounted for in the regular schedular rating criteria. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule 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. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluation for the service-connected PTSD is adequate, referral for an extra-schedular rating is unnecessary. Thun, supra. Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule. Extra-schedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to an evaluation of 50 percent, but no higher, for PTSD as of December 4, 2009 is granted, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs