Citation Nr: 1316255	
Decision Date: 05/17/13    Archive Date: 05/29/13

DOCKET NO.  10-43 794	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) and depressive disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1965 to March 1967.  

This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In that decision, the RO granted service connection for PTSD and assigned an initial 30 percent disability rating, effective August 29, 2008.

By a September 2010 decision, a Decision Review Officer assigned an initial 70 percent rating for PTSD and depressive disorder, effective August 29, 2008.

The Veteran testified before the undersigned at a February 2013 videoconference hearing.  A transcript of this hearing has been associated with his claims file.


FINDING OF FACT

Since August 29, 2008, the Veteran's PTSD and depressive disorder have been manifested by deficiencies in areas of work, school, family relations, judgment, thinking, and mood, without total social and occupational impairment. 


CONCLUSION OF LAW

The criteria for an initial rating higher than 70 percent for PTSD and depressive disorder have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The appeal for a higher initial rating for PTSD and depressive disorder arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection.  Where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).  

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  

The 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 his 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 obtained the Veteran's service treatment records, pertinent service personnel records, and all of the identified relevant post-service VA treatment records.  The Veteran has not reported, and the evidence does not otherwise reflect, that he has received any relevant post-service private medical treatment for a psychiatric disability.  In addition, he was afforded VA examinations to assess the severity of his service-connected disability.

In July 2012, the agency of original jurisdiction (AOJ) contacted the SSA and requested all available records pertaining to any claim for disability benefits submitted by the Veteran.  The SSA responded that no records could be sent and that further efforts to obtain any such records would be futile because there were no SSA disability records due to the fact that the Veteran either did not file for disability benefits or no medical records were obtained in conjunction with any such claim.  Thus, any further efforts to obtain SSA disability records would be futile.  38 C.F.R. § 3.159(c)(1).

Analysis

Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155.

Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).

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.  See 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 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.

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 a rating 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).  VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  See 38 C.F.R. §§ 4.125, 4.130.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's PTSD and depressive disorder has been rated under 38 C.F.R. § 4.130, DC 9411 according to the General Rating Formula for Mental Disorders.  Under the General Rating Formula, a 70 percent disability 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); and inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, DC 9411.

A 100 percent disability 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; and memory loss for names of close relatives, own occupation, or own name.  Id.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, 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.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004);
Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). 

The Board has considered the Global Assessment of Functioning (GAF) scores assigned during the claim period.  The 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32).  GAF 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).  Id.

However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue.  Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).

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).

VA treatment records dated from August to September 2008 and the Veteran's August 2008 claim (VA Form 28-0781a) include reports of nightmares, depression, anxiety, intrusive thoughts, irritability, impaired mood, and restlessness.  The Veteran used medications to treat his psychiatric symptoms which resulted in improved sleep, motivation, and anhedonia and decreased nightmares, intrusive thoughts, restlessness, and irritability.  There was no hyperactive mood, impaired concentration, racing thoughts, excessive energy, risky behaviors, hallucinations, or suicidal/homicidal ideations.  The Veteran exercised on a daily basis (e.g. walked up to 2 miles), was a self-employed carpenter, and lived with his wife.  He was unable to work for a period of time due to cardiac surgery.

Examinations revealed that the Veteran was casually dressed, neatly groomed, alert, cooperative, and in no acute distress.  He made good eye contact with examiners, but was occasionally "a little slow to engage."  His demeanor was depressed and he had fair insight and judgment.  However, his speech was spontaneous, appropriate, and of normal rate and volume, his mood was "better," his affect was brighter, and his sensorium was clear.  Also, he did not have any psychotic symptoms, looseness of associations, or flight of ideas, and his thought process was clear and goal-directed.  Diagnoses of PTSD and depression not otherwise specified (NOS) were provided and GAF scores of 48 were assigned, indicative of serious impairment.

During a March 2009 VA examination the Veteran reported constant anxiety, depression, flashbacks, nightmares (2 to 3 times per week), impaired sleep, persistent and recurrent recollections of in-service trauma, persistent and intense distress at exposure to events similar to the traumatic events that occurred in service, avoidance of stimuli associated with such trauma, a persistent sense of a foreshortened future, a persistent markedly diminished interest or participation in significant activities, a persistent feeling of detachment or estrangement from others, a hyperstartle response, hypervigilance, impaired concentration, irritability, and uncontrolled anger.  Such symptoms resulted in loss of friends, social isolation, and minimal participation in leisure activities.  He used medications to treat his psychiatric symptoms, but they provided only minimal relief.  He had not received any psychotherapy during the previous year and had never been hospitalized for psychiatric reasons.  

The Veteran was employed in carpentry following service, but his relationships with his supervisor and coworkers were strained, he would occasionally get angry while at work, he had lost jobs due to his temper, he had occasionally walked off the job, and he experienced difficulty keeping his work schedule due to his psychiatric disability (e.g. he missed up to a week of work per month).  With respect to social functioning, he was married and described the relationship with his wife as being "good."  However, it was sometimes difficult due to his desire to be alone.  He also had good relationships with his children.  He lost his enjoyment for hunting, camping, and riding horses, he did not like to leave his home, and he did not socialize with others.

Examination revealed that the Veteran was fully oriented, had appropriate appearance, hygiene, and behavior, maintained good eye contact, and exhibited normal communication and speech.  He did not experience any delusions or obsessional rituals, his thought processes were appropriate, his judgment and abstract thinking were intact, and there was no suicidal ideation.  However, his affect and mood ranged from depression to anger, his attention/focus was impaired and he had to be redirected often, he experienced panic attacks (and associated diaphoresis, tremors, and anxiety) less than once per week, he exhibited signs of suspiciousness, he experienced occasional auditory hallucinations (although not at the time of the examination), his memory was mildly impaired (i.e. forgot names, directions, recent events, dates, and how to fix items), and he experienced passive suicidal ideation approximately once a year.  He was diagnosed as having PTSD and depressive disorder NOS and a GAF score of 45 was assigned, indicative of serious impairment.

The examiner who conducted the March 2009 VA examination concluded that the Veteran's psychiatric disability resulted in loss of friendships, social withdrawal, emotional distancing from others, loss of time at work, loss of jobs due to his mood, difficulties while working, and some interference in performing activities of daily living.  Overall, the symptoms of his psychiatric disability approximated the criteria for a 70 percent rating under DC 9411 in that he experienced suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances (including work or a work-like setting), an inability to establish and maintain effective relationships, and thoughts of injuring himself or others.  However, he had no difficulty understanding commands and there was no imminent threat of harm to himself or others.  His symptoms were chronic and his prognosis was guarded.

The Veteran reported on a "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940) dated in October 2010 and in his October 2010 substantive appeal (VA Form 9) that he had last worked full time in 1986, at which time he had become too disabled to work.  He was reportedly unable to secure or follow any substantially gainful occupation due to his PTSD, had left his most recent job/self employment due to the disability, had not tried to obtain employment since he had become too disabled to work, and was unable to work at a level that would allow his income to meet the poverty level due to his PTSD.  However, he also reportedly earned approximately $800 a month/$11,000 a year as a self-employed carpenter during the previous 12 months.  Also, he reported that he was intermittently unable to perform activities of daily living (up to and including minimal personal hygiene) and that he was often disoriented to time and/or place.

A June 2012 VA examination report reveals that the Veteran and his wife reported re-experiencing of in-service trauma, intrusive thoughts, nightmares, avoidance/emotional numbing, increased arousal, depression, anxiety, loss of interest in activities (e.g. fishing and hunting), social isolation, a low appetite, low energy, poor concentration, feelings of worthlessness, excessive worry, chronic sleep impairment, anger, irritability, hypervigilance, a hyperstartle response, and impaired memory and concentration (a cognitive screen suggested problems with concentration).  However, the Veteran did not experience any suicidal or homicidal ideation and there were no symptoms of panic disorder, obsessive compulsive disorder, mania, or psychosis.  His marital relationship was "good," but he occasionally liked to spend time by himself.  He had good relationships with his children, had friends from church, and spent his free time engaging in church activities and gardening.  He continued to work in carpentry and performed "odd jobs here and there."  Diagnoses of PTSD, generalized anxiety disorder, and depressive disorder NOS were provided and a GAF score of 50 was assigned, indicative of serious impairment.

The examiner who conducted the June 2012 VA examination concluded that there was some overlap of the Veteran's symptoms associated with his various psychiatric disabilities.  However, the symptoms of re-experiencing, avoidance/numbing, and increased arousal were related to his PTSD, the depressed mood, loss of interest in activities, changes in appetite, low energy, poor concentration, and feelings of worthlessness were related to his depressive disorder, and the excessive worry, difficulty sleeping, irritability, and impaired concentration were related to his generalized anxiety disorder.  Overall, the symptoms of his psychiatric disability approximated the criteria for a noncompensable disability rating under DC 9411.

In an August 2012 statement (VA Form 21-4138) and during the March 2013 hearing, the Veteran and his wife reported that the Veteran experienced nightmares, difficulty sleeping, social isolation, hypervigilance, depression, loss of appetite, daily panic attacks, and occasional suicidal ideation.  Also, he occasionally neglected his personal hygiene due to depression.  Overall, his symptoms were generally unchanged since the June 2012 VA examination, he did not take any psychiatric medications, and he was not involved in any formal psychiatric counseling (although he did engage in informal counseling with the pastor at his church approximately once a month).

Although the Veteran would occasionally exhibit irritability and anger towards his wife and had struck her in the past, he described his relationship with his wife as being "good."  He also had good relationships with his grandchildren, despite the fact that he often wished to be alone.  He was self-employed as a carpenter, but he was reportedly unable to work 70 percent of the time that he used to work.  As a result, he was only able to work approximately 20 to 25 hours per week or less.  Also, he experienced difficulty concentrating while working and was occasionally unable to finish jobs due to stress and depression.  He submitted tax information from 2011 which reflects that the gross income from his business was $47,342.00.  During the March 2013 hearing, he reported weekly income of approximately $250 to $300 per week (i.e. approximately $13,000 to $15,600 per year). 

The above evidence reflects that the Veteran has been assigned GAF scores which indicate that he experiences serious difficulties in social and occupational functioning due to his psychiatric symptoms and which reflect an inability to work. Although there is evidence of occupational impairment due to his service-connected psychiatric disability and he has reported an inability to secure and follow substantially gainful employment due to the disability, the fact remains that he has worked as a carpenter during the entire claim period and has reportedly earned an annual income which is generally in excess of established poverty thresholds.  He is socially isolated, has reported very limited social activities, and has reported that his psychiatric symptoms have had some negative impacts upon his marriage and his other family relationships.  Nevertheless, he reported during the June 2012 VA examination that he had friends from church and that he spent his free time engaging in church activities.  Also, he has maintained stable relationships with his wife, children, and grandchildren during the entire claim period. 

Although the Veteran has reported an intermittent inability to maintain personal hygiene due to depression and occasional disorientation to time or place, he has not demonstrated gross impairment in thought processes or communication, he has not exhibited grossly inappropriate behavior, he has generally been able to independently perform most activities of daily living, and there was no evidence of any disorientation to time or place during the March 2009 and June 2012 VA examinations.  Also, although occasional auditory hallucinations, suicidal ideation, and memory problems have been reported, there have been no persistent delusions or hallucinations, he has not been in persistent danger of hurting himself or others, and he has not experienced memory loss for names of close relatives, own occupation, or name.  Thus, he has not had most of the symptoms listed in the examples for a 100 percent disability rating during the claim period and total social and occupational impairment has not been demonstrated.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, DC 9411.   

Accordingly, the Board finds that the symptoms of the Veteran's PTSD and depressive disorder have most closely approximated the criteria for a 70 percent rating under DC 9411 since the effective date of award of service connection.  Hence, an initial rating higher than 70 percent for the service-connected psychiatric disability is not warranted at any time during the claim period.  See Id.

Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2012).  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  The Board must specifically address whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242, 244 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, 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 a 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), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

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").

There is no allegation or evidence of exceptional factors in this appeal with regard to the Veteran's service-connected PTSD and depressive disorder.  All of the symptoms experienced by the Veteran described above are contemplated by the appropriate diagnostic criteria as set forth above.  


ORDER

Entitlement to an initial rating higher than 70 percent for PTSD and depressive disorder is denied.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs