Citation Nr: 1316731 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 11-29 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from December 1955 to February 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In February 2013, the Veteran and his wife testified before the undersigned at a videoconference hearing at the RO. A transcript of this hearing is of record. At the hearing the Veteran was granted a 60-day abeyance period for the submission of additional evidence. He submitted additional evidence along with a waiver of initial RO consideration of the additional evidence in March 2013. See 38 C.F.R. § 20.1304(c). In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. Both the Board and originating agency (see September 2012 Supplemental Statement of the Case) have reviewed the VVA file, which includes VA treatment records dated from December 2011 to March 2012. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT For the period of the appeal, the evidence demonstrates the Veteran's PTSD has been manifested by symptoms including occupational and social impairment with no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms of anxiety, depression, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss. Symptoms such 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 ; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships, have not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § §3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the matter at hand, the Veteran was provided content-complying notice by letter in December 2009, prior to the initial adjudication of the claim in February 2010. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records (including VA and private) has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. (In this regard, the Board points out that the Veteran's Social Security Administration records were destroyed. VA notified the Veteran that efforts to obtain such records were unsuccessful by letter in July 2012.) Moreover, the Veteran has been afforded an appropriate and adequate VA examinations in 2010 and 2012. Given that the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be sufficient. The Veteran also presented testimony at a hearing in 2013. Therefore, the Board concludes that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claim. Increased Rating for PTSD Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula for Mental Disorders, 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 warrants a 100 percent rating. 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 warrants a 70 percent rating. 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 warrants a 50 percent rating. 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) warrants a 30 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). Global Assessment of Functioning (GAF) Scale Consider psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Do not include impairment in functioning due to physical (or environmental) limitations. 100 - 91 Superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his/her many positive qualities. No symptoms. 90 - 81 Absent of minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). 80 - 71 If symptoms are present, they are transient and expectable reactions to psycho-social stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). 70 - 61 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 relationships. 60 - 51 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). 50 - 41 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). 40 - 31 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 younger children, is defiant at home, and is failing at school). The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, 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 of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection for PTSD was granted by rating action in July 2008. An initial 30 percent disability evaluation was assigned. The Veteran was notified of the decision in July 2008; however, he did not appeal and it became final in July 2009. VA outpatient treatment records dated in 2009 are negative for any psychiatric treatment. A claim for increased rating was received in December 2009. A January 2010 VA examination report notes the Veteran was taking Zoloft for depression. The Veteran stated that he does not see a therapist or attend group therapy because it is too far away. The Veteran had been married to his wife for 15 years and reported a good relationship with his spouse and family. He occasionally attends functions at the American Legion but avoids crowds overall. He denied seeing friends, but admitted seeing adult children, grandchildren, and great grandchildren. His hobbies included listening to music. The Veteran reported recurrent and intrusive distressing recollections of in-service traumatic events, including images, thoughts, or perceptions. He reported recurrent distressing dreams. He tried to avoid thoughts, feelings, or conversations associated with in-service traumatic events, and avoided activities, places, or people that arouse recollections of the in-service traumatic events. The Veteran reported getting about four hours of sleep due to awakening from nightmares, which occurred about four times a week. He stated that he retired from his job in 1997 because of back problems. On examination, the Veteran's attention was intact. Thought process and thought content were unremarkable. Affect was appropriate. The Veteran understood the outcome of his behavior. No delusions or hallucinations were reported. The Veteran had no inappropriate behavior, panic attacks, or homicidal or suicidal thoughts. Memory was normal. After reviewing the claims file, the examiner stated that there is little change since the Veteran's last examination in July 2008. The diagnosis was PTSD with a GAF score of 65. The Veteran was considered competent to handle his financial affairs. VA outpatient treatment records date from 2010 to 2011 note the Veteran's ongoing treatment for PTSD. All these records show that the Veteran's speech was normal and his thought processes were clear, logical, linear and goal directed. Memory was intact, affect was appropriate and judgment was good. The Veteran never reported any panic attacks. In June 2011, the Veteran reported that his mood and nightmares were improved with medication. In March 2012, the Veteran reported that he continued to have combat-related nightmares and difficulty being around crowds. He found medication helpful in reducing his anxiety and allowing him to sleep. In May 2012 L.J.S., a VA nurse practitioner, noted that he saw the Veteran six times between January 2010 and March 2012, with symptoms including combat-related nightmares, hypervigilance, and irritability leading to social isolation. Medication was helpful in dealing with these problems as well as his sleep problems and anxiety. A September 2012 VA examination report notes the Veteran had been married to his wife for 17 years. The Veteran described his wife as very supportive and understanding. He complained of mood swings (from happy to irritable to angry), anxiety, panic attacks weekly or less, flashbacks, nightmares and hypervigilance. He stated that he spends long periods of time alone in the motor home on his property, especially when he becomes overwhelmed by visiting grandchildren. The Veteran described some mild memory problems, especially forgetting to complete a task if he does not do it right away when his wife asks him to do it. He denied any history of legal problems or substance abuse. The examiner opined that the Veteran had a tendency to over-report his symptoms beyond what is normally expected, as well as endorse symptoms not associated with PTSD. The diagnosis was PTSD and the GAF score was 65. The Veteran was considered competent to handle his financial affairs. The Veteran testified during a February 2013 hearing that he had problems sleeping due to nightmares. He complained of depression, anger and panic attacks. He indicated that five or six times a week he isolates himself in his camper for a few hours because of his anger. The Veteran's wife reported that he often screams out in his sleep and is hard to live with. In a March 2013 statement, L.J.S. stated that he had seen the Veteran 10 times over the past two years for PTSD. Each time, the Veteran was reluctant to relate his PTSD symptoms. L.J.S. had never known the Veteran to over-endorse symptoms, as was the opinion of the 2012 VA examiner. For the period of the appeal, the Veteran's PTSD has been rated 30 percent. The medical evidence for this period shows that the Veteran's service-connected PTSD has been manifested by no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms of depressed mood, anxiety, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss. Symptoms warranting a 50 percent rating - 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 - were not shown. Outpatient treatment records for the period show no symptoms of memory loss or panic attacks. While the Veteran reported some memory impairment and panic attacks on the most recent VA examination in September 2012, the memory impairment was characterized by the examiner as mild, only affected short-term memory and did not interfere with the Veteran's ability to attend to the activities of daily living, and the panic attacks did not occur more than once a week. At no time during the period at issue did the evidence show that the Veteran has exhibited abnormal speech, difficulty in understanding complex commands, impaired judgment, or impaired abstract thinking. The Veteran has maintained good relationships with his wife and family, and reported some social interactions on a small scale at the American Legion. Consequently, the assignment of a 50 percent rating (or higher) is not warranted under 38 C.F.R. § 4.130. GAF scores of 65 were listed on VA examination reports dated during the period at issue. The Veteran's symptoms correspond to GAF scores ranging from 61 to 70, reflecting some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. The GAF scores ranging from 61 to 70, reflecting mild to moderate symptomatology and functional impairment, are generally consistent with the objective findings and a 30 percent rating. For all the foregoing reasons, the Veteran's claim for a schedular rating in excess of 30 percent for PTSD must be denied. See Hart, supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's service-connected PTSD are contemplated by the schedular criteria and the assigned schedular evaluation is adequate, as discussed above. The rating criteria provide for a higher rating for additional or more severe symptoms than currently shown by the evidence. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extra-schedular consideration is not warranted. As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER An increased rating for PTSD, currently evaluated as 30 percent disabling, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs