Citation Nr: 1315434 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-25 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1969 and from April 1976 to February 1984. He was awarded a Purple Heart Medal for being wounded in action. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2013, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. FINDING OF FACT Throughout the appeal period, the Veteran's PTSD is shown to have been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; at no time is it shown to have been manifested by symptoms productive of total occupational and social impairment. CONCLUSION OF LAW Throughout the appeal period, a 70 percent (but no higher) schedular rating is warranted for the Veteran's PTSD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. This appeal is from the initial rating assigned with the grant of service connection. The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). Two letters in May 2009 and the July 2009 statement of the case (SOC) properly provided the Veteran notice on the downstream issue of an increased initial rating, and a September 2012 supplemental SOC (SSOC) readjudicated the matter after the Veteran responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA examinations in December 2008, April 2010, and February 2012; which will be discussed in greater detail below, though the Board finds these examinations to be adequate as each included a review of the Veteran's history and a mental status examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part IV. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time and "staged" ratings may be assigned for distinct periods of time where the severity of the disability varied, based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is rated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, Code 9411. The psychiatric symptoms listed in the rating criteria below are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the general rating formula for mental disorders a 50 percent rating is warranted when there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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 a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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, Code 9411. The Veteran has been assigned Global Assessment of Functioning (GAF) scores for his PTSD. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Lesser scores reflect increasingly severe levels of mental impairment. See 38 C.F.R. § 4.130 [incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes]. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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). The evidence of record reveals psychiatric diagnoses other than PTSD, such as dysthymia and depression. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In reviewing the claim, the Board notes that the evidence covering the period under review consists of VA clinical records, December 2008, April 2010, and February 2012 VA examination reports and the Veteran's allegations of increased disability. On December 2008 VA examination, the examiner noted no previous psychiatric care until presenting for an initial evaluation in November 2008. The Veteran reported getting about 5 bad nights of sleep per week and frequent intrusive memories during the day. He had five or more days of mild to moderate PTSD symptoms per week, lasting from minutes to hours. The Veteran reported that the worst events during his Vietnam service were not his combat wounds to the hand and thighs for which he received the Purple Heart medal. The worst events were, first, seeing his best friend die due to a Claymore mine explosion and, second, his first kill when he shot an enemy soldier at close range (the Veteran's most frequent nightmares are about shooting his enemy and seeing the soldier's facial expression.) He also reported intrusive memories several times per week and having emotional distress when the memories are triggered. The Veteran stated that he makes extreme efforts to avoid memories, thoughts, or feelings and people that remind him of the military (he avoided VA for 40 years and avoids war movies and parades). The examiner noted that the Veteran was emotionally numbed, had mild anhedonia, and only a few friends that do not know him well. He had a sense of foreshortened future, never knowing what tomorrow holds and not being surprised if he is dead the next day. The Veteran's sleep was eratic (ranging for 2 to 8 hours), temper was a problem if provoked (but not resulting in legal infractions), and his concentration/memory was chronically poor (but he did not have psychogenic amnesia). He had a "heavy" startle reaction (which had improved from when he would dive to the ground if a car backfired) and mild hypervigilance. The Veteran denied persistent depression and panic symptoms. He reported suicidal ideation at times (he could not say when or how often and had made no attempts). The Veteran reported being divorced from his first wife, widowed from his second wife, having a "mediocre" relationship with his 7 children, and "not much" in the way of activities and leisure pursuits. The examiner summarized that the Veteran's self care was intact, family role functioning was markedly impaired and social relationships and leisure pursuits were seriously imparied. The Veteran was cooperative and open, had good eye contact, was fully oriented, and his impulse control was intact. There was no evidence of psychotic symptoms or ritualistic behavior and he had no panic attacks. The Veteran's speech was often slow and hesitant with long delays, as he unsuccessfully attempted to remember details of his past, and his affect appeared chronically mildly depressed. The diagnosis was PTSD and a GAF score of 55 was assigned. The examiner opined that the Veteran's PTSD severely impaired his social functioning as evidenced by his long-term poor relationship with his children, absence of significant friendships and hobbies, and his recent release from prison (he was incarcerated for 7 years for rape.) January 2009 VA mental health treatment records show the Veteran reported flash backs and nightly dreams of his traumatic experiences. He was in contact with his mother and siblings and spent his days helping his mother. A March 2009 treatment report notes "some passive SI (suicidal ideation)". Another March 2009 treatment report notes that the Veteran's recent assessments had resulted in a "sharp spike in reexperiencing symptoms." In June 2009, the Veteran's treating psychologist stated that he supported the Veteran's appeal for an increased 70 percent rating for PTSD because his occupational and social impairment is severe enough for him to reside at a homeless shelter for the past 7 months and his complete inability to work during this time. The examiner noted that the Veteran is completely isolated from his family (except his mother) due to the nature of his criminal offense and pre-existing PTSD. The examiner observed that the Veteran was "nearly continuously silent, and apparently anxious about/avoidant of social contact" and has only two friends (one a former homeless client from the shelter and the second whom he has known for 40 years but seen twice since moving to the shelter.) The examiner noted that the Veteran had been struggling with SI (but was not presently) and appeared to be dysthymic or depressed, avoidant, anxious, and very isolative. In a July 2009 PTSD assessment, the Veteran had severe levels of self-reported depression. The examiner summarized that the Veteran meets the criteria for PTSD, chronic, with associated depression NOS (not otherwise specified) and assigned a GAF score of 45. On April 2010 VA PTSD examination, a GAF score of 45 was assigned. The examiner reviewed the June 2009 statement from the Veteran's psychologist in support of his appeal and opined that, "based on his current level of functioning and his GAF, his mental disability may well be greater than 50 percent." On February 2012 VA PTSD examination, the Veteran's computerized medical records were reviewed and the examiner noted that the Veteran's mother had died in the past year and he had not had contact with his 7 childern in years (they blame him for his sex offense, erratice behavior after returning from the military, and for his wife's death due to overdose). He has few social contacts other than his girlfriend. The examiner further noted that the Veteran isn't working (other than casual, occasional light work with a carnival) and has not worked steadily since 2001, when he was jailed. He was oriented to person, place, time and situation. He was clean and neatly groomed and his behavior was appropriate to the occasion. The Veteran's mood was happy, anxious and dysphoric and his affect was normal and appropriate. His speech was spontaneous, fluent and normal concerning rate, rhythm, volume and prosody and his comprehension was intact. His thought process was linear, coherent, logical and goal directed. The Veteran's memory was "not too bad" (he makes notes for himself and remembers to check the notes) and he denied suicidial and homicidal ideations. He also denied excessive worry, panic attacks, obsessive thoughts and compulsive or ritualistic behaviors. He reported periods of anhedonia and occasional trouble getting himself out of bed in the morning. The examiner noted that the Veteran's PTSD is productive of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. A GAF score of 60 was assigned. The examiner opined that the Veteran had occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. During his March 2013 Travel Board hearing, the Veteran testified that his normal day is spent watching television and, once or twice per week, he experiences the nightmare of shooting the enemy soldier and seeing his face (a 13 or 14 year old teenager). The Veteran has stated that his service-connected PTSD should be rated at least 70 percent. His VA treatment records and examination reports show that his isolatation and depression prevent him from functioning independently and render him unable to establish and maintain effective relationships. He has also reported having suicidal thoughts. On longitudinal review of the record the Board finds that the disability picture presented by the Veteran's psychiatric disability throughout approximates one of occupational and social impairment with deficiencies in most areas, and warrants the assignment of a 70 percent rating. This is the conclusion reached by the April 2010 and December 2012 VA examiners and his treating psychologist. This is also the rating the Veteran has stated is warranted. The VA examination reports and mental health treatment records show that the Veteran has had impaired speech, is chronically depressed, is unable to establish and maintain effective relationships (has had no contact with his 7 children and has two friends other than his girlfriend), had difficulty in adapting to stressful circumstances (avoided VA for 40 years and avoids war movies and parades), and has experienced suidical ideations. While the VA mental health treatment records include findings that may suggest there is a lesser level of psychiatric impairment, the overall record appears to suggest otherwise. For example, while the February 2012 examiner noted that the Veteran's behavior was appropriate to the occasion, his mood was happy and his affect was normal and appropriate; it is noteworthy that the Veteran's treating psychologist has observed him to be "nearly continuously silent," dysthymic or depressed, avoidant, anxious, and very isolative. Further, while the April 2010 and February 2012 VA examination reports show no current suicidal or homicidal thoughts, the December 2008 VA examination and his mental health treatment records show the Veteran experiences suicidal thoughts (but does not act on them). Accordingly, and with resolution of remaining reasonable doubt in the Veteran's favor, the Board concludes that a 70 percent rating is warranted. The Board finds no reason to question the credibility of the Veteran's own accounts; they are consistent with reports by the VA examiner and his treating mental health personnel. As the symptoms described meet (or at least approximate) the schedular criteria for a 70 percent rating under Code 9411, the Board finds that such rating is warranted throughout the appeal period. 38 C.F.R. § 4.7. The evidence of record does not show that symptoms that meet (or approximate) the above-listed criteria for a 100 percent rating were manifest at any time during the evaluation period. At no time during the appeal period is it shown that the Veteran had total occupational and social impairment, due to such psychiatric symptoms as: gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting himself 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, or other symptoms of similar gravity; no such symptoms have been shown. Although the June 2009 statement from the Veteran's psychologist notes that he had a "complete inability to work" during the 7 months he resided at the homeless shelter; this statement was clearly intended to support the Veteran's claim for an increased 70 percent rating and the psychologist does not argue that the Veteran's PTSD results in total occupational and social impairment. Consequently, the Board finds that the criteria for a schedular 100 percent rating are not met or approximated at any time during the appeal period. The Board finds that the GAF scores assigned do not provide a separate basis for an award of a rating in excess of 70 percent. The symptoms and level of impairment represented by the GAF scores of 45 (reflecting serious symptoms) and 55 and 60 (reflecting more moderate symptoms) do not reflect total disability, so as to warrant a 100 percent rating. The Board has also considered whether referral for extraschedular consideration is indicated by the record. There is no objective evidence of symptoms of and/or impairment due to his psychiatric disability that are not encompassed by the 70 percent rating now assigned. Therefore, the schedular criteria are not inadequate. Accordingly, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the record does not show and the Veteran has not alleged, that he is rendered unemployable by virtue of his PTSD. Accordingly, the Board finds that the matter of a total rating based on individual unemployability is not raised in the context of this claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A 70 percent (but no higher) rating is granted for the Veteran's PTSD, subject to the regulations governing payment of monetary awards. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs