Citation Nr: 1315153 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 12-23 950A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: T. Petro, Agent ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by which the RO, in pertinent part, granted service connection for PTSD to which it assigned a 50 percent disability evaluation. The Veteran is contesting the initial rating assigned. FINDING OF FACT For the entire initial rating period, the Veteran's PTSD has been manifested by no more than mild impairment and symptoms such as occasional nightmares, occasional flashbacks, some sleep problems, a dislike of large groups, anxiety, and depression. CONCLUSION OF LAW For the entire initial rating period, the criteria for an initial disability evaluation in excess of 50 percent for the service-connected PTSD have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In a January 2010 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The claim for an initial higher rating for PTSD arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. the Veteran provided a private psychological evaluation report. Additionally, the Veteran was provided a VA mental health examination in March 2010. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA findings obtained in this case are adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. The VA examiner considered all of the pertinent evidence of record, to include service treatment records, VA treatment records, a comprehensive examination, and the statements of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issue of a higher initial disability rating for PTSD has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2012) (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Disability Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 ; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130, Diagnostic Code 9411. A 50 percent rating is warranted if it is productive 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 compete 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 rating, may be assigned for 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 a work-like setting); and inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 2001). A 100 percent schedular evaluation contemplates 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. 4.130, Diagnostic Code 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 41-50 indicates "Serious 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 51-60 indicates "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)." Id. GAF scores that are between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Id. The list of symptoms under the rating criteria are meant to be 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. If the evidence shows that 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 v. Principi, 16 Vet. App. 436, 442-3 (2002). The United States Court of Appeals for the Federal Circuit 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). Although the veteran's symptomatology is the primary consideration, the veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013). Factual Background The Veteran is in receipt of a 50 percent rating for service-connected PTSD effective November 9, 2009, the effective date of service connection, under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. VA treatment records dated in November 2009 reflect that the Veteran was retired from a supervisory job with a large automobile manufacturer. During routine screening, the Veteran denied drinking alcohol, and a depression screening was negative for depression. As to feeling down, depressed, hopeless, the Veteran responded "Not at all." A PTSD screening was negative for PTSD. He denied nightmares, being constantly on guard, watchfulness, being easily startled, and feelings of detachment in the past month. He stated that he lived with a supportive family. On another occasion that month, the Veteran reported moderate to severe depression, moderate to severe anxiety, and anger management problems. The Veteran indicated that he was seeing a private counselor but that he was not taking any psychotropic medication. The Veteran submitted a December 2009 psychological evaluation report arranged for by his representative. The report indicates explicitly that the Veteran was referred by his representative. In any event, the December 2009 report reflects that the Veteran had been married to his present spouse, his second wife, since 1987. He had worked for a large automobile manufacturer from 1967 until his retirement in November 1998. He retired so as not to lose health benefits. After leaving that place of employment, the Veteran worked for another corporation for five years until retiring in 2003. He was able to get along fairly well with fellow employees. He did not like arguing and did his best to reason with people. On examination, the Veteran was well groomed, fully oriented, and displayed an appropriate affect. He cried when discussing traumatic events in service. He expressly denied suicidal ideation and hallucinations. He indicated that his depressive symptoms were a seven on a scale of one to 10 and that anxiety symptoms were a five on the same scale. The Veteran indicated that he was able to keep symptoms of anxiety and depression to a minimum by staying busy. The Veteran denied difficulty sleeping but slept only a few hours. Upon awakening, he would walk around the house "doing surveillance." There were occasional nightmares and flashbacks, and the Veteran had difficulty trusting others. The Veteran was on good terms with co-workers while employed but he did not have many close friendships. He and his wife socialized with a few other couples. The Veteran endorsed angry outbursts and indicated that his anxiety caused those outbursts. The Veteran stated that his anxiety was higher during his working years and that he would run several miles after work to "clear [his] head." The Veteran stated that he startled easily and preferred small gatherings to large ones. He indicated that he had difficulty concentrating as well as memory problems and that he kept a list of appointments as a result. The Veteran recounted that he left love letters to his wife whenever he went away on hunting trips. The examiner indicated that the Veteran "is a man whose life has been profoundly affected and forever changed by what he went through during his military service." The examiner suggested that the Veteran seek counseling and consult a physician regarding psychotropic medication. The examiner diagnosed chronic severe PTSD and assigned a GAF score of 45 and indicated that the highest GAF score during the previous 12 months was 47. The Veteran was scheduled for a VA psychiatric consult in January 2010 but cancelled the appointment. He did not wish to reschedule. In March 2010, the Veteran was afforded a VA mental health examination. The Veteran reported symptoms such as depression and anger and sleeping only five hours a night. He denied suicidal ideation. He denied outpatient treatment for a mental disorder and denied psychiatric hospitalizations. The Veteran, however, was taking anti depressant medication. The Veteran's self-esteem was good, and his mood was "OK." The Veteran stated that he had problems trusting others. He did not like being around many people. He was irritable and upset about the economy. The Veteran denied alcohol use as well as a legal history. The Veteran described the relationship with his wife as good. They enjoyed fishing, daily walks, and movies. The Veteran enjoyed hunting as well as reading the newspaper and hunting magazines. The Veteran stated that he went hunting with his friend who lived nearby and with whom he had worked for decades. The Veteran's socializing consisted of his wife and her family as well as hunting buddies. On objective examination, the Veteran was fully oriented, well groomed, and cooperative although somewhat suspicious. His mood was good, but his affect was constricted. Attention was good, and speech was normal. There was no abnormal psychomotor activity. Thought processes were unremarkable although speech was slightly circumstantial toward the end of the evaluation. There were no delusions. Judgment was good. The Veteran did not display any inappropriate behavior. There was some mild impairment of memory. As to PTSD, the Veteran had difficulty sleeping and re-experienced distressing events. He had distressing dreams and flashbacks once or twice a month. The Veteran avoided experiences such as fireworks that reminded him of Vietnam. The Veteran indicated that he was working as a security guard on a part-time basis. He reported that he was retired from a position from a large automobile manufacturer, spent five years at another corporation until it closed, and was presently employed on a part-time basis. The examiner diagnosed PTSD and indicated that although the Veteran had clinically significant distress, he had no occupational impairment and only mild psychosocial impairment in the form of less emotional awareness with his wife and others and a tendency to prefer smaller groups. The examiner assigned a GAF score of 61. Discussion The question herein is whether a rating of 70 percent, or higher, is warranted at any time during the appeal period. See Fenderson, supra. The Veteran has been fairly consistent in reporting his symptomatology although he appears to have completely denied symptoms on one occasion in November 2009 during VA treatment. The record contains two examination reports conducted within three months of each other. The examiner's both diagnosed PTSD. There is a discrepancy, however, in the GAF scores assigned. The December 2009 private report indicates a GAF score of 45 and a maximum score of 47 during the previous year. Such a GAF score indicates "serious 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)." See Richard, supra. The Board does not find this assessment of the severity of the Veteran's PTSD credible because the facts detailed in the December 2009 report do not tend to show a disability picture of such magnitude. Indeed, the Veteran denied suicidal ideation, and the December 2009 examiner did not indicate symptoms on par with severe obsessional rituals or frequent shoplifting. Furthermore, the December 2009 report did not indicate serious impairment in social, occupational, or school functioning. Indeed, the report reflects a long and stable marriage, a long and successful occupational history, and strong coping mechanism on the part of the Veteran such as exercising to alleviate symptoms. Furthermore, the December 2009 examiner engaged in hyperbole. While the Board recognizes that we are the product of our experiences, saying that the Veteran "is a man whose life has been profoundly affected and forever changed by what he went through during his military service" fails to take into account the Veteran's post-service personal and professional success in the form of a long and stable second marriage and decades with the same employer in a supervisory capacity. Because the December 2009 examiner's conclusions do not fit the facts in the report and because that examiner engaged in hyperbole, the Board does not find credible the December 2009 private psychological examination report. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the Board is charged with the duty to assess the credibility and weight given to evidence); see also Caluza v. Brown, 7 Vet. App. 498 (1005) (holding that in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The record contains only one other comprehensive report of the state of the Veteran's PTSD, namely the March 2010 VA examination report. That examination report indicates that symptoms such as suicidal ideation, hallucinations, detachment from reality, and abnormal thought processes are absent. The report indicates such manifestations as some depression, some anxiety, mild memory impairment, occasional nightmares, occasional flashbacks, some avoidance, lack of trust, and dislike of large groups. Symptoms such as these coupled with a GAF score of 61, which is reflective of 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, and has some meaningful interpersonal relationships, do not rise to or more nearly approximate the types of impairment or symptoms contemplated in the criteria for a 70 percent evaluation for PTSD. 38 C.F.R. § 4.130; see also Vazquez-Claudio, supra (holding that general areas of impairment must be considered along with actual psychiatric symptomatology). The Board observes that such symptoms as suicidal ideation, obsessional rituals interfering with routine activities, abnormal speech, an inability to function independently due to near continuous panic or depression, impaired impulse control, spatial disorientation, and neglect of personal appearance or hygiene are not shown. Moreover, deficiencies in work, family relations, judgment, and thinking are absent. Indeed, the VA examiner indicated that the Veteran had no occupational impairment and only mild psychosocial impairment. That assessment along with the GAF score of 61 militates against a finding that the Veteran's PTSD symptomatology and deficiencies more closely approximate those necessary for a 70 percent evaluation. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411; see also Vazquez-Claudio, supra. For these reasons, the Board finds that a 70 percent evaluation for the service-connected PTSD is not warranted at any time during the appeal period. Id.; 38 C.F.R. § 4.3; Fenderson, supra. The Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating due to individual unemployability (TDIU) as a result of that disability is warranted is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that a claim for a TDIU is not raised by the record. Specifically, the evidence of record fails to show that the Veteran is unemployable. Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. Id. at 182. Here, the Board has considered Mittleider and has attributed all potentially service-connected symptoms to one service-connected condition or another, before considering if the Veteran is entitled to an extraschedular rating herein. Turning to the first step of the extraschedular analysis articulated in Thun, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, expressed in Diagnostic Code 9411, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has manifested sleep impairment, mild memory impairment, intrusive thoughts, avoidance of distressing stimuli, and occasional nightmares and flashbacks along with mild psychosocial impairment. These symptoms and areas of impairment are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. Vazquez-Claudio, supra. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "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." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with an acquired psychiatric disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER An initial evaluation in excess of 50 percent for service-connected PTSD is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs