Citation Nr: 1314897 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 00-22 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating higher than 30 percent before October 8, 2011, and an initial rating higher than 50 percent from October 8, 2011, for posttraumatic stress disorder. 2. Entitlement to service connection for hypertension, secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1966 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in February 2000 (hypertension) and in January 2009 (posttraumatic stress disorder) of a Department of Veterans Affairs (VA) Regional Office (RO) or Agency of Original Jurisdiction (AOJ). On the claim of service connection for hypertension, in June 2003, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. A transcript of the hearing is in the Veteran's file. In a decision in September 2011, the Board denied service connection for hypertension, including secondary service connection. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2012, the Court granted a Joint Motion for Remand filed by the Secretary of VA and the Veteran and vacated that portion of the Board's decision which denied service connection for hypertension, secondary to service-connected disabilities, and remanded the claim to the Board. In May 2012, the Board remanded the claim for additional development. The Veteran was afforded the opportunity to have a new hearing on the claim by a Veterans Law Judge who would decide the claim. In February 2013, in response in writing, the Veteran indicated that he did not want another hearing on the claim of service connection for hypertension. On the claim for increase for posttraumatic stress disorder, in April 2011, the Veteran appeared at hearing before the undersigned. A transcript of the hearing is in the Veteran's file. In September 2011, the Board remanded the claim for increase for further development. No further action to ensure compliance with the Board's remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The claim of service connection for hypertension, secondary to service-connected disabilities, is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT From the date of service, posttraumatic stress disorder has been manifested by reduced reliability and productivity under the criteria of the General Rating Formula for Mental Disorders, and the symptoms associated with the diagnosis of posttraumatic stress disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), which is referred to in 38 C.F.R. § 4.130 (rating mental disorders), but not covered in the General Rating Formula, but occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood are not demonstrated an any time during the appeal. CONCLUSION OF LAW Throughout the period of the appeal, the criteria for an initial rating of 50 percent for posttraumatic stress disorder have been met, but the criteria for a rating higher than 50 percent have not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter dated in August 2008 on the underlying claim of service connection. Where, as here, service connection has been granted and the initial disability ratings have been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision regarding the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable on the initial rating claim, following the initial grant of service connection. Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. On the claim for increase, the service treatment records and VA records have been obtained. The Veteran was afforded VA examinations in December 2008 and in October 2011. As the reports of the VA examinations are based on the Veteran's history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Facts In a rating decision in January 2009, the RO granted service connection for posttraumatic stress disorder and assigned an initial rating of 30 percent, effective June 16, 2008, the date of service connection. While on appeal, in a rating decision in August 2012, an Agency of Original Jurisdiction increased the rating to 50 percent effective October 8, 2011, creating a staged rating, that is, separate ratings for separate periods of time during the pendency of the appeal. VA records prior to 2008 do not list posttraumatic stress disorder as a diagnosed health problem. In June 2008, in his application for VA disability compensation, the Veteran stated that his treatment for posttraumatic stress disorder began in May 2008. VA records in May 2008 show that the Veteran was seen in a biopsychosocial assessment. The Veteran complained of feeling depressed because of poor health and not having much to do after retiring from the food service industry. He stated that he was more irritable around people. It was noted that the Veteran had been divorced for 12 years and he recently broke up with woman he had lived with since his divorce. He had three adult-aged children. There was no history of mental health treatment or of suicide. The Veteran described symptoms of social withdrawal, tending to stay at home for three days at a time, and of sadness. In June 2008, as part of the assessment, psychosocial testing was consistent with the Veteran's history of substance abuse, dysphoria, and social introversion. The Veteran was then accepted for VA' group substance abuse and treatment program (SATP). While in SATP from June 2008 to October 2008, the Veteran did not voice suicidal ideation, intent, or plan. In a treatment note in October 2008, it was noted that the Veteran last worked in December 2002, when he worked in management in food services, but he stopped working because of an injury at work. Although the Veteran obtained other jobs, he could not keep the jobs because of the side effects of his medications and physical health problems. When reported the Global Assessment of Functioning (GAF) scores were 68 and 70. On VA examination in December 2008, it was noted that the Veteran was still in SATP for alcohol. The Veteran's symptoms included nightmares of combat, avoidance of the reminders of Vietnam, detachment from others, anger control problems, sleep disturbance, and hypervigilance. The Veteran stated that he could not work because of his physical problems. The Veteran stated that he had a good relationship with a daughter and a son, but a distant one from an adopted daughter. He lived alone after a recent break up of a relationship. The Veteran indicated he had a few friends. There was no history of psychiatric hospitalization. There was a history of vague suicidal ideation over the Veteran's lifetime. On mental status examination, the VA examiner described the Veteran's thought processes as within normal limits. The Veteran was cooperative and oriented. His eye contact was good. Speech was normal and logical. His appearance was good and he was able to maintain personal hygiene and activities of daily living. Short or long tern memory was grossly intact. The Veteran's mood was dysphoric and his affect was sad and anxious. The Veteran denied having delusions or hallucinations or suicidal or homicidal ideation, intent, or plan. There was no history of obsessive or ritualistic behavior or panic attacks. There was no display of unusual impulse control problems. The diagnosis was posttraumatic stress disorder. The GAF score was 60. The VA examiner stated that the Veteran's current alcohol abuse disorder, anxiety disorder, and personality disorder were strong impediments to gainful employment. The VA examiner stated that it would be difficult to determine what symptoms were attributable to which disorder. The VA examiner described the impact of posttraumatic stress disorder on occupational and social functioning as reducing reliability and productivity. VA records in May 2009 in an individual therapy session show that the Veteran continued to have symptoms of depression, anxiety, nightmares of combat, flashbacks, and hypervigilance. After testing, the Veteran's levels of anxiety and depression were described as moderate. There was no evidence of suicidal ideation. The Veteran was still in SATP and he was also seen in the VA's group Posttraumatic Stress Disorder Clinical Treatment Outpatient Program (PCT). The GAF score was 65. In August 2009, the Veteran was awarded Social Security disability benefits from September 2006 primarily due to musculoskeletal conditions. Affective disorders were listed as a secondary diagnosis. It was noted that the Veteran was in group and individual therapy in 2008 and in 2009. The symptoms included nightmares of combat, social isolation, anger control problems, sleep disturbance, hypervigilance, and suicidal ideation. VA records show that from June 2009 to October 2010 the Veteran participated in the SATP group sessions. The only GAF score reported was 60. From July 2009 to May 2012 the Veteran attended group and individual PCT sessions. The GAF scores were 55, 65, 68, and 70. There was no evidence of suicidal ideation. In April 2011, the Veteran testified that he was still dealing with anger issues and he did not relate well with people, and he had difficulty maintaining social relationships with his family and a girlfriend. He described symptoms of depression, social isolation, nightmares, and hypervigilance as he slept with a light one and a knife under his pillow. On VA examination in October 2011, the VA examiner indicated that all of the Veteran's symptoms were attributable to posttraumatic stress disorder. After a review of the Veteran's file, the VA examiner summarized the Veteran's social, military, and occupational history. The VA examiner described the Veteran's symptoms as depressed mood, anxiety, suspiciousness, panic attacks, sleep impairment, and impaired judgment. The Veteran expressed concern about nightmares and impaired sleep and being argumentative. On mental status examination, the Veteran was oriented. His speech was normal. His affect was anxious. His thought processes were coherent. There was no evidence of suicidal ideation. The VA examiner described the impact of posttraumatic stress disorder on occupational and social functioning as occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and normal conversation. The GAF was 60. Rating Criteria Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. Posttraumatic stress disorder is rated under Diagnostic Code 9411 under the General Rating Formula for Mental Disorders. Under Diagnostic Code 9411, the criteria for a 30 percent rating are 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 mild memory loss (such as forgetting names, directions, recent events). The criteria for the next higher rating, 50 percent, are 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 difficulty in establishing and maintaining effective work and social relationships. The criteria for the next higher rating, 70 percent, are occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The criteria for the next and maximum rating, 100 percent, are total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Global Assessment of Functioning (GAF) scores reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). GAF scores ranging between 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores between 51 to 60 are indicative of 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). The evidence considered in determining the level of impairment from posttraumatic stress disorder is not restricted to the criteria under the General Rating Formula for Mental Disorder. Instead, VA must consider all symptoms that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV), of the American Psychiatric Association, pertaining to the diagnosis of posttraumatic stress disorder. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, both the service-connected and nonservice-connected signs and symptoms are attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). In sum, neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative. Analysis Reconciling the various reports into a consistent disability picture, two elements of the present disability emerge. First, the Veteran has symptomatology that is associated with the rating criteria under the General Rating Formula and symptomatology not covered in the rating criteria, but are associated with the diagnosis of posttraumatic stress disorder under the DSM-IV, which is referred to in 38 C.F.R. Part 4, § 4.130 (rating mental disorders). And two, while there has been some fluctuation in the symptoms of posttraumatic stress disorder, a material change in the overall severity of the disorder has not been demonstrated at any time the appeal. Since the Veteran has filed his claim for service connection, the disability picture has remained essential constant in symptomatology, in the clinical findings, and in the impact on occupational and social function. On VA examination in December 2008, the VA examiner described the impact of posttraumatic stress disorder on occupational and social functioning as reducing reliability and productivity. On VA examination in October 2011, the VA examiner described the impact of posttraumatic stress disorder on occupational and social functioning as occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and normal conversation. The impact of posttraumatic stress disorder on occupational and social functioning, which reduces reliability and productivity as shown on VA examination in December 2008 is supported by the Veteran's complaints, symptomatology, and the clinical findings, and is consistent with the GAF scores, which range from 55 to 70, indicative of at most moderate symptoms, for example, occasional panic attacks or moderate difficulty in social and occupational, such as few friends and conflicts with peers or co-workers) and the meets the criteria for a 50 percent rating before October 2011. As for occupational impairment for a rating higher than 50 percent at any time since the effect date of service connection, including after October 2011, under the criteria covered by the General Rating Formula, the Veteran is retired and he is receiving Social Security benefits, but his retirement and disability benefits were primarily based on the Veteran's physical health problems. Although Social Security considered posttraumatic stress disorder a factor, the 50 percent rating equates to a decrease in reliability and productivity in the work place. As for social impairment, the Veteran is divorced and he stays in contact with a daughter and a son, but he has difficulty in maintaining effective social relationships, as he is socially isolated although he has had a long term relationship with a girlfriend. As for symptoms for the next higher rating, 70 percent, such as deficiencies in judgment, thinking or mood, the Veteran does not have symptoms as obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; or neglect of personal appearance and hygiene. As for suicidal ideation although Social Security records refer to suicidal ideation, VA records, covering the period from 2008 to 2012, including group and individual therapy in VA's substance abuse and treatment program (SATP) and the Posttraumatic Stress Disorder Clinical Treatment Outpatient Program (PCT) show that the Veteran did not voice suicidal ideation, intent, or plan. There was a history of vague suicidal ideation over the Veteran's lifetime, but none during the appeal period. As for impaired impulse control, while the Veteran has anger problems, unprovoked irritability with periods of violence during the appeal period is not shown. As for difficulty in adapting to stressful circumstances in a work-like setting, the Veteran last worked in December 2002, when he worked in management in food services, but he stopped working because of physical health problems and although the Veteran obtained other jobs he could not keep the jobs because of the side effects of his medications and physical health problems, not because of occupational impairment due to posttraumatic stress disorder. As for the inability to establish and maintain effective relationships, in April 2011, the Veteran testified that he had difficulty maintaining social relationships with his family and a girlfriend. Nevertheless, the Veteran does maintain contact with his adult children and has had a long term relationship with a girlfriend. As for symptoms of posttraumatic stress disorder not covered by the General Rating Formula, the Veteran has dysphoria, anxiety and social introversion, nightmares of combat, flashbacks, avoidance of the reminders of Vietnam, anger control problems, sleep disturbance, and hypervigilance. Dysphoria and anxiety were described as moderate after psychological testing. On VA examination in October 2011, the VA examiner indicated that all of the Veteran's symptoms were attributable to posttraumatic stress disorder and described the impact of posttraumatic stress disorder on occupational and social functioning as occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and normal conversation. Considering that all the Veteran's symptoms are attributable to posttraumatic stress disorder, the Veteran's complaints, symptomatology, the clinical findings, and GAF scores in the range from 55 to 70, indicative of at most moderate symptoms, do not more nearly approximate or equate to the criteria for a 70 percent rating at any time during the appeal period. For these reasons, the preponderance of the evidence is against an initial rating higher than 50 percent for posttraumatic stress disorder at any time during the appeal period and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned rating is adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule rating is adequate. In other words, the Board finds that the rating criteria reasonably describe the entire Veteran's psychiatric symptomatology, including the symptoms attributable to posttraumatic stress disorder and any symptoms due to a nonservice-connected psychiatric disorder and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1) Total Disability Rating for Compensation based on Individual Unemployability During the appeal period, in a rating decision in March 2010, the RO denied the claim for a total disability rating for compensation based on individual unemployability. As the Veteran did not appeal the rating decision, the claim is not on appeal. But see Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for a total disability rating based on individual unemployability, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits). ORDER From the effective date of service connection and before October 8, 2011, an initial rating of 50 percent for posttraumatic stress disorder is granted. From the effective date of service connection and after October 8, 2011, an initial rating higher than 50 percent for posttraumatic stress disorder is denied. REMAND In September 2011, the Board remanded the claim of service connection for hypertension to afford the Veteran a VA examination, which was subsequently conducted in June 2012. The VA examination is inadequate to decide the theory of secondary service connection and further development under the duty to assist is needed. Accordingly, the claim is REMANDED for the following action: 1. Arrange to the have the Veteran's file reviewed by a VA physician, who has not previously examined the Veteran, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that hypertension was: i). Caused by or aggravated by service-connected gastroesophageal reflux disease; or, ii). Aggravated by either service-connected diabetes mellitus or posttraumatic stress disorder? In this context the term "aggravation" means a permanent increase in severity, that is, an irreversible worsening of hypertension by the service-connected gastroesophageal reflux disease, diabetes mellitus, or posttraumatic stress disorder beyond the natural clinical course of hypertension as contrasted to a temporary worsening of symptoms. The Veteran's file must be made available to the VA examiner for review. 2. Adjudicate the claim of service connection for hypertension as secondary to service-connected disabilities, namely, gastroesophageal reflux disease, diabetes mellitus, or posttraumatic stress disorder, considering all the additional evidence since the last supplemental statement of the case was issued in January 2011. In the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs