Citation Nr: 1316723
Decision Date: 05/22/13	Archive Date: 06/28/13

DOCKET NO.  10-13 242	)        DATE MAY 22 2013

On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia

THE ISSUES

1. Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange and as secondary to service-connected diabetes mellitus.

2. Entitlement to a rating higher than 10 percent prior to November 15, 2010, and a rating higher than 30 percent from November 14, 2010. for posttraumatic stress disorder.

3. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability.

WITNESS AT HEARING ON APPEAL 

The Veteran

ATTORNEY FOR THE BOARD 

Debbie A. Breitbeil, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from September 1967 to September 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied service connection for hypertension and denied a rating higher than 10 percent for posttraumatic stress disorder.

This matter is also before the Board on appeal of a February 2012 RO decision that denied a total disability rating for compensation based on individual unemployability.

In a May 2011 rating decision, the RO granted a 30 percent rating for posttraumatic stress disorder, effective November 15, 2010; the Veteran continued his appeal for a higher rating.

FINDINGS OF FACT

1. Hypertension was not present during active duty; hypertension was not manifested to a compensable degree within one year from the date of separation from service in September 1969; and hypertension, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is unrelated to an injury, disease, or event of service origin, including exposure to Agent Orange and to service-connected diabetes mellitus.

2. For the period prior to November 15, 2010, the Veteran's posttraumatic stress disorder is shown to be productive of a disability picture that equates to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication,.

3. For the period beginning November 15, 2010, the Veteran's posttraumatic stress disorder is shown to be productive of a disability picture that equates to 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).

CONCLUSIONS OF LAW

1. Hypertension was not due to disease or injury that was incurred in or aggravated by service; hypertension as a chronic disease may not be presumed to have been

stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. 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 requirement is generic notice, that is, the type of

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- and post-adjudication VCAA notice by letters, dated in March 2009, December 2010, and October 2011. The Veteran was notified of the type of evidence to substantiate the claim for service connection for hypertension, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was also notified of the type of evidence to substantiate the claim of a higher rating for posttraumatic stress disorder, namely, evidence to show that the disability was worse and its effect on employment.

Additionally, the Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the elements of a service connection claim, including the effective date of a claim and the degree of disability assignable.

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim).

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.  The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2013. 

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In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in March 2013, the Veterans Law Judge indicated that the hearing would focus on the issues of service connection for hypertension and a higher rating for posttraumatic stress disorder, and discussed the elements of the claims that were lacking to substantiate the claims. The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the Veterans Law Judge asked questions to ascertain the etiology of the hypertension and the severity of the posttraumatic stress disorder. There was no pertinent evidence identified by the Veteran or his representative that might have been overlooked and that might substantiate the claims. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection and for a higher rating. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The RO has also obtained VA records of the Veteran. He has not identified any additionally available evidence for consideration in his appeal.

Further, VA has conducted necessary medical inquiry in an effort to substantiate the claims. 38 U.S.C.A. § 5103A(d). The Veteran was afforded VA examinations in March 2009 and January 2011, to determine the severity of post-traumatic stress disorder, and in March 2009, November 2011, and December 2012, to address etiological questions regarding his hypertension. As the VA examiners considered the Veteran's history and provided a rationale for the conclusions reached, the Board finds the examinations and opinions adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that medical opinion must be

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based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one).

It is noted that the reports of VA examinations to address etiology of the hypertension did not provide an opinion concerning whether the Veteran's Agent Orange exposure, or other event in service, led to the development of hypertension many years after service. Rather, the VA examinations and opinions focused on whether there was a link between the Veteran's hypertension and his service-connected diabetes. Nevertheless, an additional medical examination or medical opinion is not necessary to decide the claim. While there is evidence of current hypertension and evidence showing that the Veteran suffered an event in service (i.e., Agent Orange exposure), there is no indication that the hypertension may be associated with the established Agent Orange exposure in service. The Secretary of VA, who is required under 38 U.S.C.A. § 1116(b) and 38 C.F.R. § 1.17 to issue a presumption of service connection when sound medical and scientific evidence shows a positive association between a disease and exposure to Agent Orange, has not done so with regard to hypertension. Therefore, another medical examination or medical opinion is not required under the duty to assist. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.

II. Service Connection for Hypertension

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including hypertension, if manifest to a compensable

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degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b).

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

A veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including a herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). If a veteran was exposed to certain herbicide agents during active service, a presumption of service connection exists if a veteran is diagnosed with certain enumerated diseases associated with such exposure, even if there is no

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record of such disease during service. 38 U.S.C.A. § 1116(a)(1), (2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

Notwithstanding the regulations governing presumptive service connection based on herbicide exposure, a Veteran may also establish service connection with proof of actual direct causation. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Facts and Analysis

The Veteran claims that he has hypertension that is attributable to his period of service or to his service-connected diabetes mellitus. He testified in March 2013 that hypertension was diagnosed in the 1980s or early 1990s and that he had symptoms of diabetes mellitus probably 15 to 20 years before his diagnosis in 2003.

The Veteran served on active duty from September 1967 to September 1969, which included a tour of duty in Vietnam in 1968 (service connection for posttraumatic stress disorder has been established based on stressors experienced in Vietnam). Service treatment records do not show any complaint, finding, history, diagnosis, or treatment for hypertension. At the time of his separation physical examination in August 1969, his blood pressure reading was 134/80.

After service, records from a private chiropractor in May 1996 show a blood pressure reading of 148/88. In a private treatment record dated in August 2003, Dr. Page diagnosed hypertension and noted that the Veteran should continue treatment through VA. VA records, which are dated from 2001 in the file, show that the Veteran was seen for a follow up on hypertension in August 2003 and that he was taking his blood pressure medication as scheduled. In December 2003, the Veteran was seen in the VA primary care clinic, where he was noted to have uncontrolled hypertension and hyperglycemia. At first the Veteran was advised to a dietary approach to managing the hyperglycemia. A consult to the diabetic education class was placed. In the consult in March 2004 it was noted that the Veteran was diagnosed with diabetes mellitus, type II, in December 2003. He was not put on

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any medications. Thereafter, VA records indicate that the diabetes mellitus continued to be well controlled, first without medication and later with metformin.

At the time of a February 2004 VA examination for diabetes mellitus, it was noted that the disability was first diagnosed in December 2003. It was also noted that the Veteran was on medication for hypertension, which was reportedly diagnosed in 2002. The diagnosis was diabetes mellitus, type II, currently diet controlled.

Various medical opinions in the file address the onset and etiology of the Veteran's hypertension and whether or not there was an association between hypertension and diabetes mellitus. At the time of a VA examination in July 2006 for diabetes mellitus, the examiner noted that the Veteran's hypertension was not a complication of diabetes because there was no diabetic renal disease to cause hypertension. Further, the examiner indicated that his hypertension was not "worsened or increased" by diabetes. These same conclusions were made at the time of a VA examination in March 2009, when it was also reported that hypertension was first diagnosed in the 1980s [there is no contemporaneous record to substantiate this]. At the time of a November 2011 VA general medical examination, the examiner concluded without any explanation or rationale that the Veteran's diabetes mellitus at least as likely as not permanently aggravated hypertension. In describing the history of hypertension, the Veteran related that he was diagnosed with hypertension on a general medical checkup when he was found to have elevated blood pressure, but he was not put on medication. Then, in 2001 when he did not feel well he took his blood pressure, which was 183/117, and he went to the VA emergency room where he was started on medication and enrolled in the health system.

In view of the conflicting medical opinions concerning the onset of hypertension, the claims file was returned to the examiner who conducted the November 2011 VA examination, for the purpose of reconciling the disparate conclusions and providing rationale for the conclusions reached. In December 2012, the examiner opined that it was less likely than not that the Veteran's hypertension was proximately due to or the result of his diabetes mellitus. He explained that by the Veteran's own report, his hypertension pre-existed diabetes mellitus by approximately 20 years. The

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examiner stated that to have caused the hypertension, the Veteran's diabetes mellitus, type II, must have pre-existed hypertension by an average of 20 years, with nephropathy, according to cited medical literature. The examiner found that the Veteran has not had any lab findings of renal insufficiency or diabetic nephropathy, which would have been necessary in order to conclude that diabetes caused hypertension.

Additionally, the VA examiner opined that it was less likely than not that the Veteran's hypertension was aggravated beyond its natural progression by his diabetes mellitus. The examiner explained that the hypertension has progressed only with respect to the fact that the Veteran required additional medications to control his blood pressure. He stated that a "significant roadblock to blood pressure control" was the Veteran's morbid obesity, and that having had hypertension for many years the condition would have led to damage to the vascular system, requiring additional medication. The examiner also noted that the Veteran has had diabetes for less than 10 years and had no renal insufficiency or nephropathy, which was "necessary to implicate diabetes as specific cause for hypertension or progression of hypertension." He also noted that the Veteran had no end organ damage that would be associated with progression of hypertension beyond the usual natural course of the disease.

This case presents many potential theories of service connection: affirmatively showing inception in service under 38 C.F.R. § 3.303(a); chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b); first diagnosed after service under 38 C.F.R. § 3.303(d); presumptive service connection for hypertension under 38 C.F.R. § 3.307 and 3.309; and secondary service connection under 38 C.F.R. § 3.310. The Board will address each of the theories in turn in the discussion that follows.

Affirmatively Showing Inception in Service (38 C.F.R. § 3.303(a))

On the basis of the service treatment records alone, hypertension was not affirmatively shown to have been present in service. As previously described, there was no documentation of elevated blood pressure readings during service, to

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include at the time of the separation physical examination in August 1969, just before the Veteran's September 1969 discharge from service. Thus, service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established.

As the preponderance of the evidence is against the claim on this theory of service connection, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).

Chronicity and Continuity of Symptomatology (38 C.F.R. § 3.303(b)) and First Diagnosed After Service (38 C.F.R. § 3.303(d))

The Veteran has asserted in statements to VA examiners and in hearing testimony that he has had hypertension ever since the 1980s. In other words, by his own report his hypertension did not manifest for more than 10 years after service. Medical evidence in the file, however, does not document hypertension until after 2000. Either way, given the lack of competent evidence of symptomatology shown in the years after service, establishing service connection for hypertension based on chronicity and continuity of symptomatology after service under 38 C.F.R. § 3.303(b) is clearly not warranted.

Considering that hypertension was first diagnosed more than a decade after the Veteran was discharged from service in 1969, based on the Veteran's report, or first definitively diagnosed more than 30 years after service in 1969, based on objective medical evidence in the record, the provision of 38 C.F.R. § 3.303(d) applies.

A review of the record discloses no competent evidence that the Veteran's hypertension, first documented years after service is otherwise related to an injury, disease, or event of service origin. 38 C.F.R. § 3.304(d). One of the Veteran's contentions is that his hypertension is attributable to exposure to herbicides during a tour of duty in Vietnam. Based on his service in the Republic of Vietnam, the Veteran is presumed to have been exposed to herbicides therein. 38 U.S.C.A. § 1116(f). However, hypertension is not on the list of diseases recognized by VA as having a presumed association with such exposure. 38 U.S.C.A. § 1116(a)(1);

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38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran may still establish service connection by evidence that such exposure caused the disability. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Other than the Veteran's own statements attributing hypertension to exposure to Agent Orange in service, there is no nexus evidence in the file to include medical opinions to show that hypertension is related to his presumed herbicide exposure. The Veteran has not furnished any evidence to suggest that his Agent Orange exposure led to the development of hypertension many years after service, and as previously discussed VA has no duty to assist the Veteran in obtaining a medical opinion on that matter given that there is no evidence to suggest that hypertension may be associated with Agent Orange exposure in service.

As for the Veteran's statements attributing his hypertension to herbicide exposure during service, although he is competent to describe symptoms of hypertension, the claimed disability is not a condition under case law where lay observation has been found to be competent. Therefore, the determination as to the diagnosis and causation of the Veteran's disability is medical in nature, that is, not capable of lay observation. Where, as here, the questions involve a medical diagnosis which is not capable of lay observation, and medical causation, competent medical evidence is required to substantiate the claim because the Veteran as a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In other words, the Veteran is not competent to establish a diagnosis or to express an opinion on the origin or cause of hypertension. For these reasons, the Board rejects the Veteran's statements as competent evidence to substantiate that his current hypertension is related to his period of service.

As there is no competent medical evidence favorable to claim, the preponderance of the evidence is against the claim based on a disability first diagnosed after service under 38 C.F.R. § 3.303(d), and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).

Presumptive Service Connection (38 C.F.R. §§ 3.307, 3.309)

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As for presumptive service connection for hypertension as a chronic disease under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a), hypertension was first documented after 2000, which is well beyond the one-year presumptive period after discharge from service in 1969, for presumptive service connection as a chronic disease.

Moreover, as noted earlier, although the Veteran is presumed exposed to certain herbicide agents during active service in Vietnam, hypertension is not one of the enumerated diseases associated with such exposure. Therefore, a presumption of service connection under 38 C.F.R. §§ 3.307(a)(6), 3.309(e) is not warranted.

Thus, the preponderance of the evidence is against the claim on this theory of service connection, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).

Secondary Service Connection (38 C.F.R. §3.310)

On the question of whether hypertension was caused by or aggravated by the service-connected diabetes mellitus, as alleged, to the extent the Veteran asserts that there is an association between hypertension and diabetes, the Veteran's opinion as a lay person is limited to inferences that are rationally based on his perception and does not require specialized education, training, or experience. The Veteran, as a lay person, is not competent to diagnose hypertension based on personal observation, so any inference based on what is not personally observable cannot be competent lay evidence. Further, it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the question of secondary service connection.

However, the medical opinions provided by VA examiners in July 2006, March 2009, and December 2012 (which amended the initially favorable opinion rendered in November 2011) are based on a review of the onset, clinical course, and status of the Veteran's hypertension. The examiners are qualified by education and training to offer a medical opinion on the etiology of the diagnosed hypertension, and they concluded that it was less likely than not that the hypertension was caused by or aggravated (beyond natural progression) by diabetes. In the rationale given by the

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examiners, it was stated that diabetes was not shown to pre-exist hypertension; that evidence of renal insufficiency or diabetic nephropathy was required to show the existence of a causal relationship or one based on aggravation beyond natural progression; and that without end organ damage the Veteran did not show evidence of a progression of hypertension beyond the typical course of the disease. Even if diabetes pre-existed hypertension, which is what the Veteran appeared to intimate at his hearing when he asserted that he had had symptoms of diabetes probably 15 or 20 years before he actually received a diagnosis of diabetes (in other words in the 1980s), the VA examiner in December 2012 explained that the Veteran's diabetes would still have needed to pre-exist hypertension by about 20 years, with nephropathy, in order for there to be a causal relationship. He cited to medical literature to support this reasoning.

Thus, the competent medical evidence opposes rather than supports the claim that the service-connected diabetes mellitus caused or aggravated the hypertension.

In sum, the preponderance of the evidence weighs against the claim under the theory of secondary service connection under 38 C.F.R. § 3.310, and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).

For the above reasons, service connection for hypertension, considering the applicable theories of service connection, is not established.

III. Higher Rating for Posttraumatic Stress Disorder

Principles of Evaluating Disabilities

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

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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).

Facts and Analysis

When evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§4.126, 4.130.

Posttraumatic stress disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. 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). Accordingly, the evidence considered in determining the level of impairment from posttraumatic stress disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411.

VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).

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The Veteran's posttraumatic stress disorder has been rated as 10 percent disabling prior to November 15, 2010, and 30 percent disabling from November 15, 2010, under 38 C.F.R. § 4.130, Diagnostic Code 9411.

A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

A 30 percent rating is assigned for 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, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is assigned for 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 Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV at 32. GAF scores ranging from 61 to 70, for example, 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, has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic

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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). See Carpenter v. Brown, 8 Vet. App. 240, 242(1995).

The Board observes that the Veteran's GAF scores appear to show that the Veteran's symptoms of posttraumatic stress disorder have worsened slightly over time during the pendency of the appeal. Nevertheless, the Board emphasizes that a disability rating depends on evaluation of all the evidence, and a VA examiner's classification of the level of a psychiatric impairment by words or by a GAF score is to be considered, but is not determinative of the percentage disability rating to be assigned. 38 C.F.R. § 4.126.

In evaluating all the evidence, the Board finds that the Veteran's posttraumatic stress disorder symptoms are not so severe as to affect his everyday life and his ability to function to a degree that more nearly approximates the schedular criteria for a 30 percent rating prior to November 15, 2010 or for a 50 percent rating beginning November 15, 2010, as will be explained.

It is noted that in a May 2011 rating decision, the RO assigned an effective date of November 15, 2010 for the increased rating for the disorder, because the RO indicated that the November 2010 date was the date of receipt of the claim for an increased rating for posttraumatic stress disorder. However, at the time of the effective date of the assignment of a 30 percent rating, the Veteran's claim for a higher rating was in appellate status. In other words, the Veteran's statement received in November 2010 was not a new claim, as the RO appears to have construed it. Nonetheless, in his statement of November 2010, the Veteran asserted that he now took additional medications for his disorder, as well as "classes" for his posttraumatic stress disorder, which tends to indicate on its face that his disorder increased in severity on or about that date. Regardless of the determination reached by the RO, the Board will conduct a de novo review of the evidence, that is, evaluate the evidence anew, for the periods before and after November 15, 2010, to

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ascertain whether the posttraumatic stress disorder meets the criteria for a higher rating.

A Rating before November 15, 2010

For the period prior to November 15, 2010, the Board finds that the evidence does not support a rating higher than 10 percent. The posttraumatic stress disorder during this period is described in terms that reflect a condition less severe than his condition after this period. That is, the Veteran's symptomatology was of such extent, severity, depth, and persistence as to have been productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

VA records show the following about the Veteran on mental health evaluations, through both individual and group therapy, in relation to his posttraumatic stress disorder. He continued to do well with only sporadic symptoms (occasional nightmares and infrequent intrusive recollections). His chief complaint was ongoing nightmares. His mood was generally found to be euthymic. On mental status examination, he was alert and fully oriented and had neat grooming and hygiene, adequate eye contact, nonpressured speech, normal psychomotor status, calm and euthymic affect of normal range, linear and nondelusional thinking, and unimpaired judgment and impulse control. There was no internal preoccupation, acute cognitive changes, suicidal/homicidal ideation, or anger/hostility/impulsivity. There was never a need for hospitalization for treatment of the disorder. In August 2008, the GAF score was 70, justified by mild impairment in social functioning. In September 2008, during a sleep clinic consult, it was noted that the Veteran had decrements in short-term memory and lack of concentration, but his mood was stable and there were reports of depression for which medication was helpful. In January 2009, the Veteran reported that he recently attempted to decrease his medication in an attempt to stop medication use, but he resumed it due to a noticeable increase in symptoms. In July 2009, the Veteran had combat-related nightmares every 10-14 days but other than that he denied significant symptoms of posttraumatic stress disorder. It was noted that his most recent GAF score was 65,

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which was assigned in May 2009. In December 2009, it was noted that the Veteran's most recent GAF score was 60, which was assigned in September 2009. A GAF of 60 reflects moderate symptoms or moderate difficulty in social and occupational functioning, but it is in the high end of the range for such symptom severity and there are no clinical findings to show that symptoms actually worsened during this period. In sum, VA outpatient records show that the Veteran was minimally symptomatic and doing well on medication.

At the time of a VA examination in March 2009, the examiner remarked that recent psychological testing suggested significant improvement in the Veteran's posttraumatic stress disorder symptoms, as the most recent Beck Depression Inventory Score was only 12 in August 2008, which was "well into the mild range" and his PCL test score that measured posttraumatic stress disorder symptoms was only 46, which was below the cutoff score. Notably, the Veteran was still taking medications, which he said were helpful, and records indicated improvement of his condition. The history showed that while the Veteran appeared to have no full remissions of his condition, his treatment notes suggested that he had made significant progress in having only minimal to mild levels of symptomatology within the last year. Occupationally, the Veteran had been out of work since 1985 due to back problems. Socially, he was divorced but had a longtime girlfriend with whom he got along with quite well. He had a good relationship with his son but a strained one with his daughter. He had one good friend and a number of other friends, and enjoyed a number of leisure pursuits. He also spent his time volunteering at the VA medical center, attending church regularly, and getting out to various stores, despite his dislike for very crowded situations.

On mental status examination, the Veteran's affect was broad, his mood was euthymic, and he was in no significant emotional distress. There was no impairment of thought processing or communication. There were no delusions or hallucinations. He denied suicidal or homicidal thinking. He had adequate personal hygiene and could perform basic activities of living. He was oriented and indicated no significant memory impairment or obsessive compulsive behavior. There were no panic attacks. He was not usually anxious, and regarding depressed mood, he had an adequate mood for half the time and that the other half he was slightly low.

Beck Depression Inventory Scores suggested that the depression that was present was very mild. There was adequate impulse control. The Veteran continued to report sleep problems, but related that a new CPAP machine helped to increase his sleep quality but not quantity. The assessment was posttraumatic stress disorder, mild, and the GAF score was 70. The examiner found that the Veteran was capable of managing his benefit payments in his own best interest, and concluded that psychotherapy and medication seemed to help his symptoms significantly and that he seemed to function well in his personal relationships. He was active in the community and pursued interests. Although he had periodic nightmares and memories that made him mildly sad, overall he seemed to function fairly well.

On the basis of the findings on VA examination reports and VA records, the severity of the Veteran's posttraumatic stress disorder for this period approximates the criteria for a 10 percent schedular rating, and that the record overall reflects few, if any, symptoms of a psychiatric disorder that typify the criteria for a 30 percent schedular rating. For instance, there is little or no objective evidence of suspiciousness, panic attacks (weekly or less often), and mild memory loss (such as forgetting names, directions, recent events). There was chronic sleep impairment, but sleep quality was improved with a CPAP machine, thus implicating a physical ailment as the cause of some of his sleep difficulties (the Veteran was diagnosed with severe positional obstructive sleep apnea in October 2008). As for depressed mood and anxiety, such was described in terms of minimal severity. He was not usually anxious and for part of the time he was only slightly low. The Veteran's disability picture is shown to be relatively stable during this period prior to November 2010. The VA examiner in 2009 has assessed the Veteran's psychiatric disorder as productive of mild social and occupational impairment.

In consideration of the foregoing, it is the Board's judgment that the Veteran's disability picture is more consistent with the criteria for a 10 percent rating under Diagnostic Code 9411. In the judgment of the Board, and in consideration of the type and severity of symptomatology of the psychiatric disorder as discussed above, the characterization of the Veteran's posttraumatic stress disorder is consistent with the assignment of a 10 percent disability rating. In evaluating all the evidence for this period, the Board finds that the VA examination report and treatment records

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reflect that the Veteran's symptoms of posttraumatic stress disorder are not so severe as to affect his everyday life and his ability to function to a degree that more nearly approximates the schedular criteria for a 30 percent rating.

The symptomatology associated with the rating criteria under the General Rating Formula and symptomatology associated with the diagnoses of posttraumatic stress disorder under the DSM-IV do not more nearly approximate or equate to occupational and social impairment, resulting in reduced reliability and productivity for the next higher rating.

For these reasons, the preponderance of the evidence is against a disability rating higher than 10 percent for posttraumatic stress disorder for this period, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).

A Rating From November 15, 2010

A review of the records for the period beginning November 15, 2010 shows that the Veteran's psychiatric symptomatology was of such extent, severity, depth, and persistence as to have been productive of 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).

The clinical evidence from VA treatment records was similar to the clinical findings on VA records prior to November 2010, particularly with regard to mental status findings. Additionally, in May 2011, it was noted that his most recent GAF score was 55, which was assigned in February 2011. In July 2011, it was noted that his most recent GAF score was 56, which was assigned in May 2011. In July 2011, the Veteran reported he was doing better and his mood was better, which he attributed to an increased dosage in medication. He still had occasional combat-related dreams and some hypervigilance and avoidance symptoms. In August 2011 it was noted that psychological testing in March and August 2011 resulted in scores that were interpreted as showing mild to moderate depressive symptoms on the Beck Depression Inventory. In August and September 2011, it was noted that his most

recent GAF score was 60, which was assigned in July 2011. In January 2012, it was noted that his most recent GAF score was 62, which was assigned in October 2011. Also in January 2012, the record indicates the Veteran's mood was depressed and his affect was flat, apparently due in part to ongoing problems with his relationships with his children. In February 2012, in an assessment for therapy services, the Veteran's GAF score was 52. Records in February, March, and April 2012 indicate that the Veteran's mood was depressed, and a record in May 2012 shows the Veteran's mood was euthymic and he desired to discontinue therapy. The GAF scores of 52, 55, 56, and 60 are in the mid to high-range on the continuum to reflect moderate symptoms or moderate difficulty in social and occupational functioning, while the GAF score of 62 reflects mild symptoms.

At the time of a VA examination in January 2011, the examiner reviewed the VA records and noted that the Veteran recently had his medication increased and requested to resume therapy. He reported that his depression fluctuated and that he had been dealing with mild depression lately. He continued to perform volunteer work and continued to be out of work from back problems. Socially, the Veteran's relationships were much the same as they were in March 2009 except he currently did not have contact with either of his children, and he tended to avoid shopping. On mental status examination, the findings were very similar to those reported in March 2009, in that his affect was broad, his mood was pleasant, and he was in no significant emotional distress. Further, there was no impairment of thought processing or communication, and there were no delusions or hallucinations. He denied suicidal or homicidal thinking. He was fully oriented and indicated no significant memory impairment or obsessive compulsive behavior. There were no panic attacks. He did report that he dealt with depression "very frequently." He denied any significant impaired impulse control. He indicated that his mood was typically "okay" but that he could lose his temper if someone provoked him. He felt that his CPAP helped his sleep significantly and his current sleep was good.

The VA assessment was posttraumatic stress disorder, mild, and the GAF score was 70. The examiner found that the Veteran was capable of managing his benefit payments in his own best interest, and noted that the Veteran had recently had his medications increased and was pursuing re-initiating psychotherapy to help with

continued anxiety and posttraumatic stress disorder related concerns. He was active in the community and pursued interests. Although he had periodic nightmares, memories, and intrusive thoughts, which affected his mood, overall he functioned fairly well in life, consistent with prior evaluation and reports.

On the basis of the findings in VA records, the severity of the Veteran's posttraumatic stress disorder for this period more nearly approximates the criteria for a 30 percent schedular rating than the criteria for a 50 percent rating. For instance, the objective evidence does not show circumstantial, circumlocutory, or stereotyped speech; panic attacks; 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; and impaired abstract thinking. As for difficulty in establishing and maintaining effective work and social relationships, he has not worked since 1985, reportedly due to a back disability. Socially, the Veteran's impairment may be described as minimal, given the good relationships he maintained with a girlfriend and other friends. His GAF scores ranged from 55 to 70, which indicate the severity of the social and industrial impairment to be primarily in the range of mild to moderate, which is a significant finding.

The record does not show most of the criteria or symptoms for a 50 percent rating. The Veteran was alert and oriented and he took care of his personal appearance. The Veteran's most frequent complaints appeared to be flashbacks, sleep problems, and depression, but the symptoms did not affect his ability to function independently. A VA examiner characterized the Veteran's impairment as mild, consistent with prior evaluations and reports. The characterizations of the Veteran's psychiatric disorder are more consistent with the type and severity of the criteria for a 30 percent rating under Diagnostic Code 9411.

As for symptoms associated with the diagnosis of posttraumatic stress disorder, but not listed in Diagnostic Codes 9411, the symptomatology does not more nearly approximate or equate to the level of occupation and social impairment with reduced reliability and productivity required for a 50 percent rating. For example, the Veteran's sleep difficulties and depression are not shown to prevent him from

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performing his activities of daily living or to negatively impact his memory, which was intact, and his thought processes, which were generally normal.

In the judgment of the Board, and in consideration of the type and severity of symptomatology of the psychiatric disorder as discussed above, the characterization of the Veteran's posttraumatic stress disorder is consistent with the assignment of a 30 percent disability rating. In evaluating all the evidence for this period, the Board finds that the VA examination report and treatment records reflect that the Veteran's symptoms of posttraumatic stress disorder are not so severe as to affect his everyday life and his ability to function to a degree that more nearly approximates the schedular criteria for a 50 percent rating.

The symptomatology associated with the rating criteria under the General Rating Formula and symptomatology associated with the diagnoses of posttraumatic stress disorder under the DSM-IV do not more nearly approximate or equate to occupational and social impairment, resulting in reduced reliability and productivity for the next higher rating for the period beginning November 15, 2010.

For these reasons, the preponderance of the evidence is against a disability rating higher than 30 percent for posttraumatic stress disorder for this 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 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 that 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.

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If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, 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).

For each of the periods considered in this case, in comparing the Veteran's posttraumatic stress disorder level and symptomatology to the Rating Schedule, it is observed that the level of disability is encompassed by the Rating Schedule. Higher ratings are provided for a more severe psychiatric disorder. Furthermore, the Veteran has not been hospitalized for his disorder. VA examination reports indicate that the Veteran retired from his work with the railroad in the 1980s due to a back disability, and a VA examiner in November 2011 opined that the Veteran's posttraumatic stress disorder did not render him unable to secure and maintain substantially gainful employment, based on recent impressions. In short, the evidence has not shown that there is marked interference with employment. In light of the foregoing, the assigned schedule rating is adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1).

ORDER

Service connection for hypertension, claimed as due to exposure to Agent Orange or as secondary to service-connected diabetes mellitus, is denied.

Ratings higher than 10 percent prior to November 15, 2010, and 30 percent from November 14, 2010, for posttraumatic stress disorder are denied.

REMAND

In February 2013, the Veteran expressed his disagreement with the RO's denial of a total disability rating for compensation based on individual unemployability. The Veteran stated that his disagreement was in regard to a March 1, 2012 VA decision;

however, there is no RO determination dated at that time. In any case, an RO award letter, dated February 29, 2012, does indicate that "individual unemployability is denied," so unless notified by the Veteran otherwise the Board will construe the February 2012 RO determination as the decision to which the Veteran disagrees.

When there has been an adjudication by the RO and a timely notice of disagreement has been filed, a statement of the case addressing the issue must be furnished to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Furnish the Veteran and his representative a statement of the case on the claim for a total disability rating for compensation based on individual unemployability due to service-connected disability. In order to perfect an appeal of the claim to the Board, the Veteran must still timely file a substantive appeal after issuance of the statement of the case.

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).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).

MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

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