Citation Nr: 1316792 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-35 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE What evaluation is warranted for posttraumatic stress disorder (PTSD) from October 6, 2008? (The issues of entitlement to increased ratings for cervical, lumbar, and foot disorders are addressed in a separate Board decision.) REPRESENTATION Appellant represented by: David L. Huffman, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from June to July 1988 and from February 2003 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In that decision, the RO, among other things, granted entitlement to service connection for PTSD and assigned a 50 percent rating, effective October 6, 2008. The Veteran timely appealed the initial evaluation assigned. In the August 2009 decision, the RO also denied entitlement to service connection for multiple other disabilities and the Veteran timely disagreed with these determinations as well. In his September 2010 substantive appeal, however, the Veteran indicated that he was appealing only the issue of the initial evaluation assigned for posttraumatic stress disorder. The remaining issues are therefore not before the Board on this appeal. 38 C.F.R. § 20.202 (2012) (allowing substantive appeal to specifically indicate issues being appealed). In January 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board; a transcript of that hearing is of record. The Veteran also testified at an August 2010 Travel Board hearing before a different Veterans Law Judge, but only with regard to the increased rating claims noted in the parenthetical reference on the title page. Separate Board decisions are being issued pursuant to Board policy that mandates such decisions in these circumstances. See BVA Directive 8430, Decision Preparation and Processing: Policies and Responsibility Assignments (Transmittal Sheet, May 17, 1999), § 14(a)(9)(b) ("If more than one Board member conducts a hearing in a given case, each hearing on different issues, separate decisions will be required"). Although a third Veterans Law Judge observed the January 2013 videoconference hearing, neither a panel decision nor the opportunity for an additional hearing before the third Veterans Law Judge is required, because each decision will be signed by only the single Veterans Law Judge who conducted each hearing concerning the issues to which they alone heard testimony. Cf. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012) (the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal and all Board decisions will be issued by either a single member or a panel consisting of no less than three Veterans Law Judges); Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011) (when a panel decision is issued, a veteran is entitled to have an opportunity for a hearing before all three Board members who will ultimately decide the appeal). FINDING OF FACT Since October 6, 2008, the overall level of impairment caused by the symptoms of the Veteran's PTSD have most nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW Since October 6, 2008, the criteria for an initial evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. In addition, VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board will therefore proceed to the merits of the appeal. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability 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 (1999). Here, however, as shown below, the evidence warrants a uniform 70 percent rating since October 6, 2008. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disabilities, however, are evaluated under the General Rating Formula for Mental Disorders (general rating formula). Pursuant to the general rating formula, a 50 percent rating is warranted 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; difficulty in establishing effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, __ F.3d __, __, No. 2012-7114, slip op. at 10-11 (Fed. Cir. Apr. 8, 2013); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, __ F.3d at __, slip op. at 7, 9. The Global Assessment of Functioning scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). A score in between 41 and 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A score in between 51 and 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers). The lay and medical evidence reflects that the Veteran has had symptoms listed in the criteria for 50, 70, and 100 percent ratings during the appeal period, but the overall level of impairment from these and other symptoms has most nearly approximated the criteria for a 70 percent rating. At a July 2009 VA examination, the medical history section indicated that the severity of the symptoms was moderate to severe. On examination, the examiner found a nonpsychotic thought process except that when the Veteran observed others in a room speaking, he believed they were saying degrading things about him that felt like they were stabbing him with a hot knife. There was impairment of thought processes or communication at two levels: the appellant had limited contact with his boss and followed orders, and the claimant and his wife were "at each other emotionally" but the Veteran attributed most of this conflict to his edginess and hyperarousal. There were impulse control problems revolving around anger and road rage. Mood changes were severe and marked by hyperarousal with anger, poor quality sleep, and "coming within a hair's brea[d]th of violence toward his wife." The global assessment of functioning score was 55, the examiner indicated that there was moderate disability with both social and work life affected. At a March 2012 VA examination the appellant's symptoms included a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired abstract thinking, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The global assessment of functioning score was 55. During the January 2013 Board hearing, the Veteran's wife testified that his posttraumatic stress disorder symptoms were worsening, with the appellant "snapping," losing his temper, and not being able to socialize. The above evidence reflects that the Veteran has had symptoms in the criteria for 50 and 70 percent ratings, as well as others of similar severity, frequency, and duration. There was impairment of memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, but there was also impaired impulse control with the type of unprovoked irritability and near violence described in the criteria for a 70 percent rating. He also had difficulty adapting to stressful circumstances. In addition, his spouse's testimony suggests symptoms indicative of an inability to maintain effective relationships. As the evidence is approximately evenly balanced as to whether the Veteran's symptoms and level of impairment more nearly approximated the criteria for a 70 percent rating, the Board will resolve the doubt in favor of the appellant and grant a 70 percent rating. 38 C.F.R. §§ 4.3, 4.7. A higher, 100 percent rating is not, however, warranted, because the symptoms and impairment did not more nearly approximate the total occupational and social impairment required for such a rating. The July 2009 VA examiner did note that there were "delusions hallucinations, persistent in the form of ideas of reference and paranoia." Even if this were the equivalent of persistent delusions and hallucinations, the Veteran did not have any of the other symptoms listed in the criteria for a 100 percent rating and neither this nor his other symptoms caused or approximated total occupational and social impairment. The above referenced testimony, VA examination reports, and Dr. Wang's January 2009 psychiatric evaluation report indicated that the Veteran had appropriate grooming and hygiene, was oriented to time and place. He did not have a memory loss for names of close relatives, own occupation or own name, he did not have gross impairment in thought processes or communication or grossly inappropriate behavior, and he was not a persistent danger of hurting himself others. In addition, the Veteran did have a relationship, although strained, with his wife, and he got along well with his children. Moreover, the global assessment f functioning scores and VA examiners' description of the degree of disability did not indicate total occupational and social impairment. The evidence thus reflects that neither the Veteran's symptoms nor his overall level of impairment more nearly approximate the total occupational and social impairment required for a 100 percent rating. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's PTSD are fully contemplated by the applicable rating criteria. As shown above, the criteria include both the symptoms listed and the overall level of impairment. Moreover, as noted, the courts have indicated that the general rating formula requires an analysis of whether the symptoms or others of similar severity, frequency, and duration cause the level of impairment required for the appropriate rating. The Board has thus considered all psychiatric symptoms indicated in lay and medical evidence and not only those listed in the general rating formula; as well as the overall level of impairment, in arriving at the 70 percent rating. Hence, consideration whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. Referral for consideration of an extraschedular rating for PTSD is therefore not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the evidence reflects that the symptoms of the Veteran's PTSD most nearly approximates the criteria for a 70 percent rating throughout the appeal period, and the benefit-of-the-doubt doctrine has been applied in reaching this determination. The 70 percent rating is warranted for the Veteran's PTSD from October 6, 2008. See 38 U.S.C.A. § 5107(b). Finally, the Veteran testified that he is gainfully employed. Hence, consideration of the sub claim of entitlement to a total disability evaluation based on individual unemployability is not warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an initial evaluation of 70 percent, but no higher, is warranted for PTSD from October 6, 2008, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs