Citation Nr: 1317239 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-15 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to October 1945. The record reflects that the Veteran received the Purple Heart and was shot down over enemy territory. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted entitlement to service connection for PTSD and assigned a 10 percent evaluation. During the pendency of the appeal, a March 2010 rating decision assigned an increased initial evaluation of 30 percent for the Veteran's PTSD. The Board notes, with respect to increased ratings, that the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. See AB v. Brown, 6 Vet. App. 35, 38 (1993). When this case was previously before the Board in July 2012 and February 2013, it was remanded for additional development. The case is now before the Board for final appellate consideration. 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 The competent medical, and competent and credible lay, evidence of record demonstrates that the Veteran's PTSD results in flattened affect, impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships; it does not result in 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for a 50 percent initial evaluation, but not higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA did advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. A March 2010 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant law, including that concerning extraschedular evaluations. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an increased evaluation for the service-connected disability at issue. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private medical records, and VA examination reports. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. In this regard, the Social Security Administration (SSA) informed VA that it had not medical records for the Veteran. The Board also observes that all development requested by the Board's prior remands has been conducted. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA examinations were conducted in September 2007 and August 2012, and a September 2012 addendum was obtained. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations conducted in this case are more than adequate, as the reports and the September 2012 addendum reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record, and provide rationales for the opinions offered. The examiners consider the Veteran's medical history, including his lay reports of his symptomatology; describe the Veteran's disability in sufficient detail; and fully describe the functional effects caused by the Veteran's disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, 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. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's PTSD is evaluated under Diagnostic Code 9411. The Rating Schedule provides that a 50 percent evaluation for PTSD is warranted by 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. Diagnostic Code 9411. A 70 percent evaluation for PTSD is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities: speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Diagnostic Code 9411. The Federal Circuit recently addressed how to apply the criteria in 38 C.F.R. § 4.130. In affirming a 70 percent evaluation for PTSD, the Federal Circuit stated that "[e]ntitlement to a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013). The Veteran contends that his PTSD warrants an evaluation in excess of 30 percent. In April 2010 correspondence, he stated that he had received non-medicated Global Assessment of Functioning (GAF) scores from the Quincy VA Community Based Outpatient Clinic (CBOC) that were worse than the medicated score he received during a September 2007 VA examination. The Veteran's VA treatment records reflect psychiatric treatment during the appeal period. VA treatment records reflect that an Axis V GAF score was deferred in January 2007. On two occasions in early April 2008, the Veteran had a GAF score of 45. A July 2008 treatment record relates that the Veteran reported increasing suspicious thoughts and paranoia. Past providers had attributed this to psychotic features of a mood disorder rather than dementia. The Veteran had seen a VA psychiatrist and MSW. Subsequent treatment records reflect GAF scores of 45 in August 2008, and 55 in October 2008. The report of the September 2007 VA examination provides that the Veteran was currently treated with an antidepressant and individual psychotherapy. The Veteran married his third and current wife in 1990, and each reported a good relationship. He reported a good relationship with his adult daughters and his wife's children. The Veteran had many friends from church, played cards after church, and enjoyed family activities. He was clean, neatly groomed and appropriately dressed. Psychomotor activity was unremarkable, speech was spontaneous and he was cooperative, friendly, relaxed and attentive to the examiner. His affect was appropriate and his mood was good and happy. He was oriented to person, time and place. Thought processes and content were unremarkable, and he had no delusions. He had partial insight, and no hallucinations, inappropriate behavior, obsessive/ritualistic behavior, suicidal or homicidal thoughts, or episodes of violence. He was able to maintain personal hygiene. The Veteran had chronic symptoms that were frequent and moderate. He was retired due to eligibility by age or duration of work. The Axis I diagnosis was PTSD traits/symptoms; rule out depressive disorder. The Axis V GAF current score was 60. The report noted that in early 2007, the Veteran had a GAF of 45 with depressive and PTSD symptoms. Since then, he had been on medication and his GAF was listed as 70. Based on the current examination, the Veteran met the PTSD symptom criteria. The Veteran did endorse avoidance, reexperiencing and hyper arousal symptoms. His presentation during the examination might have been the result of the effectiveness of the antidepressant medication in addressing the symptoms as described. The examiner stated that there was no reduced reliability and productivity due to PTSD symptoms. The report of the August 2012 VA examination provides that the Veteran's Axis I diagnosis was PTSD. The current GAF score was 58. The Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The report noted that the Veteran had a GAF score of 55 in October 2008, and a score of 45 in April 2008. He had recurrent and distressing recollections and recurring distressing dreams of the stressors. He made efforts to avoid thoughts, feelings or conversations associated with the trauma. He made efforts to avoid activities, places or people that aroused recollection of the trauma, and he had markedly diminished interest or participation in significant activities. He also had exaggerated startle response. The Veteran's PTSD symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functioning. The Veteran's symptoms consisted of depressed mood, mild memory loss (such as forgetting names, direction or recent events) and dysthymia. The Veteran had significant social withdrawal. In a September 2012 addendum, the examiner stated that upon review of the Veteran's claims file, there was no change in clinical conclusions and/or rendered medical opinion. The Board finds that the foregoing records show that the Veteran's PTSD most closely approximates the criteria for a 50 percent initial evaluation. 38 C.F.R. § 4.7. In so finding, the Board is aware that the August 2012 VA examination report describes the Veteran's disability in language that tracks the criteria for a 30 percent evaluation under Diagnostic Code 9411. Nevertheless, the Board finds that the Veteran's PTSD symptoms (which include avoidance, markedly diminished interest or participation in significant activities, exaggerated startle response, depressed mood, mild memory loss and dysthymia) result in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Diagnostic Code 9411. The Veteran's GAF scores also show that his PTSD symptoms warrant a 50 percent initial evaluation. By definition, the GAF scale considers psychological, social and occupational functioning on a hypothetical continuum of mental health-illness, and does not include impairment in functioning due to physical (or environmental) limitations. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) [hereinafter DSM- IV]; 38 C.F.R. § 4.125 (2012). According to the GAF Scale, a score of between 61 and 70 represents 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. A score between 51 and 60 represents 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) (emphasis in original). A score between 41 and 50 represents 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). (emphasis in original). DSM-IV at 32; 38 C.F.R. § 4.125. Thus, when taken together the Veteran's GAF scores (45, 45, 45, 55, 70, 60, and 58, chronologically) show that his PTSD has resulted primarily in moderate symptoms. The Board finds it significant that the Veteran's GAF has been above 60 only once. The Board also finds that the preponderance of the evidence is against entitlement to an initial schedular evaluation in excess of 50 percent for PTSD. The foregoing records show that the Veteran does not have 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. In this regard, the Board observes that the Veteran is married, has close relationships with his children and his wife's children, goes to church, and plays cards. His GAF scores of 45 are balanced by subsequent scores of 55 to 70. Taken together, these scores show that the Veteran's PTSD has not resulted primarily in severe symptoms. The Board is aware of the Veteran's reported complaints during examinations. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the medical records) directly address the criteria under which PTSD is evaluated. The observable symptoms that the Veteran describes simply do not satisfy the criteria for an initial evaluation in excess of 50 percent. As noted above, the clinical findings do not support a higher evaluation. With respect to an extraschedular evaluation, 38 C.F.R. § 3.321(b)(1) provides that ratings are to be based as far as practicable upon the average impairment of earning capacity. However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. Initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for a given 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 extraschedular consideration is required. See VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996). However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). If so, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for the completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008). In the present case, there is no indication in the objective record that the schedular rating criteria are inadequate to rate the Veteran's PTSD. There has been no demonstration of an exceptional or unusual disability picture, to include marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. There is no suggestion that the rating criteria do not reasonably describe the Veteran's disability level and symptomatology. The Veteran describes such symptoms as avoidance, exaggerated startle response and dysthymia. The rating criteria address these symptoms. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. The Board finds that the record does not raise a claim of entitlement to a total rating for compensation based on individual unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's PTSD is his only service-connected disability. The September 2007 VA examination report provides that the Veteran retired due to eligibility by age or duration of work. The Veteran has not asserted, and the evidence does not show, that his PTSD renders him unable to secure and follow a substantially gainful occupation. In sum, the medical evidence demonstrates that the Veteran is entitled to an initial evaluation of 50 percent, but not higher, for PTSD. As the preponderance of the evidence is against an initial evaluation in excess of 50 percent, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER A 50 percent initial evaluation, but not higher, is granted for PTSD, subject to the rules and regulations governing the award of monetary benefits. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs