Citation Nr: 1318030 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 08-30 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 30 percent for a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran had active service from May 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was remanded by the Board in January 2012 and November 2012 for additional development. The Board is satisfied there was substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that the Veteran raised a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected PTSD during the pendency of the appeal. A TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, during the pendency of the appeal, the RO denied a claim for TDIU in February 2008. As the Veteran has not expressed disagreement with that decision, and has not subsequently raised another claim for TDIU during the pendency of the appeal, the Board finds that no claim regarding TDIU is in appellate status at this time. FINDINGS OF FACT The Veteran's service-connected psychiatric disability causes no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD with chronic depression have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's increased rating claim arises from his disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Then, 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). Therefore, no further notice is needed. As to VA's duty to assist, the RO associated the Veteran's VA treatment records with the claims file. The Board has reviewed both the Veteran's Social Security Administration (SSA) records and the Veteran's Virtual VA electronic claims file. The Veteran was also provided VA examinations in November 2006, October 2007 and January 2012. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to rate his disability under the applicable rating criteria. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's PTSD since the January 2012 VA examination. The Board finds that the examinations and opinions obtained are adequate to adjudicate the Veteran's increased rating claim. The Board concludes that all the available records and medical evidence have been obtained to make an adequate determination as to this claim. Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran seeks an increased rating for his service-connected psychiatric disability. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, the reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran is appealing the initial disability rating assigned for his PTSD with chronic depression. Therefore, the claim requires consideration of the entire time since service connection was established, and the Board must considered entitlement to staged ratings if warranted. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following matter is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran is assigned a 30 percent rating for his service-connected psychiatric disability. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). A 30 percent rating is warranted when there is 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). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). A 50 percent rating is warranted when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The symptoms listed in Diagnostic Code 9411 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When the symptoms or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). A GAF of 61 to 70 is defined as 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. A January 2007 rating decision granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating, effective July 18, 2006. In an August 2006 examination associated with an application for Social Security Administration (SSA) benefits, the Veteran reported enjoying spending time with his family. He indicated that he went to church two to three times and week. He stated that he had male friends that visited in the morning and several girlfriends that visited him during the week. It was noted that the Veteran was neat and clean. His affect was mildly blunted and mood was euthymic. The examiner noted that the Veteran was coherent and relevant and had no disorganization in his thought process. He denied auditory or visual hallucinations. Speech was of normal rate and volume. The Veteran indicated that he cried all of the time. He stated that he enjoyed participating in activities and was not socially withdrawn. He was diagnosed with vascular dementia. A GAF score of 55 was provided. At a November 2006 VA examination, it was noted that the Veteran's overall affect was blunted. He had increased anxiety and was near tears when discussing traumatic events in Vietnam. No speech or thought disorder was noted. The Veteran reported no suicidal or homicidal ideation and was fully oriented. The VA examiner noted that the Veteran had self-treated his PTSD symptoms with alcohol until around 1994. It was noted that he had difficulty maintaining a relationship with his wife because of trouble with closeness and she had left him in 1994. The Veteran reported that he had drank heavily over the years and stopped in approximately 1994 when he became active in his church. He reported that he still had intrusive thoughts and increased anxiety and depression if he was not constantly busy and one of his major ways of staying busy was to take long walks. He reported difficulty concentrating. It was noted that the Veteran experienced sleep disturbances and was on medication. The examiner diagnosed chronic PTSD and assigned a GAF score of 65. It was noted that the Veteran had mild to moderate dementia secondary to past alcohol abuse and a CVA. At an October 2007 VA examination, the examiner noted that the Veteran was dressed in clean, casual attire and his grooming and hygiene appeared good. It was noted that the content of his speech was rational and goal-directed, though brief at times. There was no evidence of tangentiality, loose associations, or flight of idea. No delusional material was elicited and his thoughts appeared well formed and presented. It was noted that no hallucinations were reported, though he continued to experience sensory anomalies as part of his PTSD symptoms. The examiner noted no homicidal or suicidal ideation. The Veteran reported experiencing vivid nightmares and experiencing intense feelings of anxiety if he was exposed to images of fighting and death in war time. It was noted that he preferred to stay by himself, if possible, and avoided large crowds of people. It was noted that he was vigilant about his home and surroundings and liked to make sure they were secure. The Veteran reported attending church on Wednesday night for Bible study and every Sunday for services and for Sunday school class. He reported that his sister and daughter took him shopping and assisted him with items he needed around the house. It was noted that the Veteran's sister managed his money. The October 2007 VA examiner indicated that the Veteran continued to report symptoms clearly consistent with PTSD. The examiner indicated that he believed the Veteran's symptoms had worsened a bit since the last VA examination and at this time he believed the Veteran was moderately impaired in terms of social and industrial capacity secondary to PTSD. A GAF score of 55-60 was assigned. An August 2008 VA treatment record shows no hallucinations, delusions or suicidal or homicidal ideation. An August 2009 VA treatment record shows that the Veteran was oriented, had limited insight and judgment, and had poor memory. A GAF score of 50 was assigned. At a January 2012 VA examination, it was noted that the Veteran had good relationships with his daughter and other family members. The Veteran reported that he watched his two year old granddaughter sometimes and attended church regularly. It was noted that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner stated that the Veteran had problems with sleep initiation but not sleep maintenance. It was noted that nightmares with combat content occurred about twice a week and that the Veteran struggled with depression. The examiner indicated that the Veteran struggled with low energy and motivation, and had a restricted affect, impaired concentration, and a feeling of being detached from others. It was noted that the Veteran was capable of managing his own financial affairs. The January 2012 VA examiner indicated that the Veteran was alert and oriented, and denied suicidal and homicidal ideation. The Veteran reported occasional auditory hallucinations. There was no overt evidence of psychoses. The Veteran's speech was appropriate. His thought processes were linear and logical. The examiner indicated that the Veteran's psychiatric condition alone did not impair his ability to engage in physical and sedentary forms of employment. A GAF score of 57 was assigned. The examiner stated that the Veteran exhibited occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during period of significant stress, or that the symptoms controlled by medication. The Board finds, after a careful review of all pertinent evidence in light of the rating criteria, that the Veteran's PTSD symptomatology continues to meet or more nearly approximate the severity of occupational and social impairment contemplated for the 30 percent rating assigned under the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9411 for the entire period on appeal. 38 C.F.R. § 4.7 (2012). At no point during this appeal, did the Veteran's PTSD symptomatology meet the criteria for a rating in excess of 30 percent. A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to certain symptoms. However, the Board finds that those delineated symptoms are not characteristics of the Veteran's PTSD disability. Evidence of record does not indicate that the Veteran has exhibited 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 caused by PTSD; impaired judgment; or impaired abstract thinking. While the Veteran has documented symptoms of depressed mood, and is not currently employed, the January 2012 VA examiner indicated that the Veteran's PTSD did not alone impair his ability to engage in physical and sedentary forms of employment. The Board finds that the totality of the evidence shows that the Veteran's PTSD signs and symptoms more nearly approximate occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In fact, during the appeal period, evidence of record shows that the Veteran maintained relationships with his children, friends and church congregation. Mental status findings showed clear speech, normal thought processes, and intact judgment and insight. Further, the overwhelming majority of assigned GAF scores ranging from 55 to 65 during this period are indicative of mild to moderate symptomatology and moderate, but not severe, impairment in social and occupational functioning due to service-connected PTSD. The Board is cognizant that an isolated GAF score of 50 in August 2009 appears to show greater impairment than contemplated by the assigned 30 percent rating. However, considering the actual psychiatric symptoms shown in the narrative during that time period, the Board finds that level of overall psychiatric impairment shown is more consistent with the assigned 30 percent rating, notwithstanding the isolated GAF score of 50 assigned in an August 2009 treatment visit. Consequently, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for PTSD during the appeal period. The Veteran also submitted written statements discussing the severity of his service-connected PTSD. In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact. Credibility and weight are 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his increased PTSD symptoms because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the clinical evidence of record does not indicate that the assignment of any increased rating is warranted. As the Veteran's statements are inconsistent with the evidence of record, the Board finds his assertions of increased PTSD symptoms to be less credible than the medical evidence of record from examinations and treatment. Jones v. Derwinski, 1 Vet. App. 210 (1991). Thus, evidence of increased PTSD symptomatology to a degree that warrants a higher rating has not been established, either through medical or lay evidence, during the appeal period. The Board finds that the Veteran's claim for a rating in excess of 30 percent for PTSD must be denied. The Board has considered staged ratings, but concludes that they are not warranted because the evidence does not show any period of time when the symptomatology has been sufficiently more severe to warrant a higher rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). Because the preponderance of the evidence is against this claim, the claim for increase must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether referral for consideration of an extraschedular rating is warranted. 38 C.F.R. § 3.321(b) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular consideration when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of the assignment of an extraschedular rating is not warranted. 38 C.F.R. § 3.321 (2012). ORDER Entitlement to a rating in excess of 30 percent for PTSD is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs