Citation Nr: 1318396 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-34 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a disability rating higher than 50 percent for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, in which the RO awarded an increased rating, of 50 percent, for his service-connected posttraumatic stress disorder (PTSD). A notice of disagreement was filed in September 2008, a statement of the case was issued in October 2009, and a substantive appeal was received in November 2009. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. However, in this case, the Veteran filed a separate claim for entitlement to a TDIU during the pendency of his appeal for an increased rating for his service-connected PTSD. The RO subsequently issued of a rating decision in October 2009 addressing the issue of entitlement to a TDIU, which was denied at that time. The Veteran chose not to perfect an appeal as to that October 2009 denial of his claim for entitlement to a TDIU. Moreover, he indicated in a September 2010 statement that he is unable to work at least partially due to non-service-connected emphysema and has indicated on multiple occasions, including at his December 2010 VA examination, that he is unable to work due primarily not to his PTSD but to respiratory disease. In this regard, the Board recognizes that the Veteran experiences some difficulty working due to his PTSD but notes that this is reflected in the disability ratings that have been assigned for the disorder. The Board thus concludes that the credible evidence does not establish that the Veteran cannot work because of his service-connected PTSD. Accordingly, the Board concludes that a claim for TDIU has not been raised by either the Veteran or the record. FINDING OF FACT For the entirety of the appeal period, the Veteran's PTSD has been manifested by symptoms such as restricted affect, depressed mood, anxiety, social impairment, and chronic nightmares and sleep impairment that approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating higher than 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In September 2007, a VCAA letter was issued to the Veteran with regard to his increased rating claims; this letter predated the November 2007 rating decision. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim, the information and evidence that must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish an effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's VA outpatient treatment records. He underwent VA examinations in September 2007 and December 2010 with regard to his PTSD. The Board finds that such examination reports are thorough and contain sufficient information to decide the increased-rating issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). The Veteran has not otherwise identified any records relevant to the claim on appeal. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis The Veteran contends that his service-connected PTSD is more disabling than is reflected by the 50 percent disability rating currently assigned. Relevant evidence of record consists of VA examinations conducted in September 2007 and December 2010, as well as records of ongoing treatment the Veteran has obtained from VA treatment providers. Records of VA treatment reflect that the Veteran has complained of symptoms of PTSD such as depression, anxiety, nightmares and flashbacks, irritability, problems with sleep, and isolation. At an intake psychiatric visit in May 2007, the Veteran complained of being "jumpy" and withdrawn but reported having a good relationship with his children and his siblings. At that time, he denied any suicidal or homicidal ideation and audiovisual hallucinations. His affect was noted to be restricted. Later VA treatment visits similarly reflect the Veteran's complaints of ongoing sleep interruption, nightmares, anxiety, depression, and survivor's guilt, although he reported at a January 2008 treatment visit to be "doing much better" following the initiation of medication to treat his PTSD. At a January 2009 treatment visit, the Veteran's anxiety and depression were found to be mild to moderate in severity. His PTSD was noted to be "stable" in July 2009 and "much improved" in October 2009; at that time, no anxiety or depressed mood were noted. Later VA treatment visits similarly reflect mild to moderate anxiety and depressed mood as well as complaints of occasional nightmares and flashbacks. The Veteran has also submitted written statements to VA in support of his claim for increase. In that connection, the Veteran contended in a September 2008 statement that he had experienced suicidal thoughts. The Veteran was afforded a VA examination in September 2007. At that time, the Veteran stated that he had last worked in 2000 but also reported that he owned his own construction company and could "do it all" with respect to building houses. He complained of nightmares, survivor's guilt, and an exaggerated startle response but denied suicidal or homicidal ideation. He reported that he had a good relationship with his older son, whom he frequently saw, and with his two siblings. He also reported that he was active in multiple veterans' groups, building Web pages and attending multiple veterans' reunions. He denied experiencing hallucinations, delusions, or psychotic symptoms and stated that he did not experience any panic attacks. He was noted to report mild sleep impairment. The examiner diagnosed him with PTSD and found him to have mild symptoms that caused decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner assigned a GAF score of 60. The Veteran again underwent VA examination in December 2010. Report of that examination reflects that the Veteran experienced difficulty with feeling pleasure or interest in activities, as well as increased irritability, restlessness, and survivor's guilt. The examiner also noted the Veteran's report of restlessness, anxiety, and indecision, but noted that these symptoms were moderate in nature. The Veteran reported that he stayed in touch with many other veterans and enjoyed attending veterans' reunions. He was noted to display an anxious mood and some circumstantial and tangential thought but was found to be oriented in all spheres, with no suicidal or homicidal ideation or audiovisual hallucinations. The examiner did note that the Veteran reported bathing only once per week and observed a smell of body odor. The Veteran complained of decreased concentration and nightmares approximately four times per week that caused impaired sleep, as well as mildly impaired memory. The diagnoses included PTSD and depressive disorder and the examiner assigned a combined GAF score of 60, although he noted that the GAF score attributable solely to the Veteran's PTSD was 55. The examiner found the Veteran to display symptoms at the upper end of the "moderate" scale and noted his limited leisure pursuits and social interactions. However, the examiner specifically found the Veteran not to display total occupational and social impairment due to his PTSD. Similarly, the examiner found that the Veteran's PTSD did not cause occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. Rather, the examiner opined that the Veteran's PTSD symptoms caused occupational and social impairment with reduced reliability and productivity. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in 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. When a question arises as to which of two ratings applies 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 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 reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, and VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In the November 2007 rating decision, the Veteran's PTSD was evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Under the General Rating Formula For Mental Disorders, to include PTSD, 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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; intermittently illogical, obscure, or irrelevant speech; 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where there is 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. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising 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). It is necessary to evaluate a disability from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2 (2012). In light of the above findings, the Board finds that a disability rating higher than 50 percent is not warranted for the Veteran's PTSD. In that connection, the Board notes that the Veteran has been treated on multiple occasions for complaints of anxiety and depressed mood and difficulty with work and social relationships. He has been specifically noted at multiple VA treatment visits, as well as at his December 2010 VA examination, to have "moderate" symptomatology and to display problems with social isolation, depression, and decreased motivation. Hence, the Board finds that the Veteran's PTSD more nearly approximates the assigned 50 percent rating for occupational and social impairment with reduced reliability and productivity, as manifested by the Veteran's restricted affect; disturbances of motivation and mood; and difficulty establishing and maintaining effective relationships. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (holding that symptoms recited in the rating schedule for mental disorders are to serve as examples of the type and degree of the symptoms and not an exhaustive list). In so concluding, the Board finds particularly persuasive the Veteran's ongoing anxiety and depression, as well as multiple findings of problems sleeping, anxiety, social isolation, and disturbances of motivation and mood. The Board notes, as discussed above, that it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. Nonetheless, upon review of the relevant medical evidence discussed above, the Board finds that, for the entirety of the appeal period, the Veteran's PTSD has been manifested by symptoms resulting in occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. See 38 U.S.C.A. § 5017(b); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9411. Therefore, a rating higher than the 50 percent disability rating currently assigned is not warranted. In so finding, the Board notes that there is no evidence that the Veteran has problems tantamount to obsessive or ritualistic behavior that interfered with his routine activities. There is, further, no evidence that the Veteran has at any time displayed stereotyped speech, difficulty in understanding complex commands, impaired judgment, or impaired abstract thinking. To the contrary, the Veteran has regularly denied suicidal and homicidal ideations and psychotic symptoms. He has further reported to his VA treatment providers and examiners that he is not experiencing visual or auditory hallucinations. Further, despite some difficulty with hygiene as noted by the December 2010 VA examiner, the Veteran has consistently been found able to perform activities of daily living. These are the sort of things that strongly suggest that he does not experience deficiencies in most areas as is required for a 70 percent rating. Rather, his difficulties are akin to the problems identified by the criteria for a 50 percent rating, with reduced reliability and productivity as a result. In particular, the Board notes that the Veteran has not been found to have deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. In sum, the Board finds that the Veteran's symptoms of PTSD are not of the degree contemplated by the criteria for a higher rating; they are more like those contemplated by the currently assigned rating. He is not deficient in most areas. His speech is not illogical, obscure, or irrelevant; he does not experience near-continuous panic or depression. He has not been so irritable as to have periods of violence. In reaching this conclusion, the Board acknowledges that there is some evidence of occupational and social impairment. The Veteran was noted to have been unemployed for several years. Nevertheless, he has repeatedly reported that he has strong relationships with his children and siblings, as well as with multiple veterans' organizations and fellow veterans with whom he enjoys socializing. As discussed above, the Veteran has at no time exhibited gross impairment of thought processes. Also, he is able to communicate without speech problems. In addition, the Veteran's December 2010 VA examiner found him to retain some ability to function in occupational and social settings. Indeed, the December 2010 VA examiner specifically found the Veteran to display "occupational and social impairment with reduced reliability and productivity." Although he has been noted to experience anxiety and depressed mood, the kinds of problems he experiences are most like those set forth in the criteria for a 50 percent rating. Consequently, the Board finds that the preponderance of the evidence is against the claim for a higher rating for the Veteran's service-connected PTSD. See 38 C.F.R. § 4.7. The Board has also has considered but does not find that the Veteran's PTSD causes total social and occupational impairment; thus, it does not more nearly approximate a 100 percent disability rating under 38 C.F.R. § 4.130. In that connection, the Board acknowledges that the Veteran has not, at any time during the appellate period, displayed delusions, hallucinations, or grossly inappropriate behavior. Importantly, the Veteran has been shown to be oriented and to be able to perform activities of daily living. He has not been shown to have memory loss for his name, the names of his relatives, or his occupation. Further, although the Veteran reported suicidal thoughts on a September 2008 written statement to VA, he has denied experiencing suicidal or homicidal thoughts to both his VA examiners and VA treatment providers. The Board thus finds that any such suicidal ideation was, at most, brief and transitory and not present to the extent contemplated by the 100 percent disability rating. Thus, the Board finds that a rating of 100 percent is not warranted under Diagnostic Code 9411. In its analysis, the Board has considered the GAF scores assigned to the Veteran during the course of his VA treatment and the VA examinations provided to him in September 2007 and December 2010. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." It does not otherwise include impairment in functioning due to physical (or environmental) limitations. There is no question that the GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). Nevertheless, the GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, are not dispositive of the evaluation issue; rather, they must be considered in light of the actual symptoms of the Veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). In this case, the Board finds that the Veteran's GAF score of 60, assigned by his September 2007 VA examiner, coincides with his stated symptoms and with the rating of 50 percent currently assigned under the General Rating Formula For Mental Disorders. The same is true for the GAF score of 55 assigned by the December 2010 VA examiner. Scores in the range of 51-60 are identified as "moderate symptoms" such as flat affect or moderate difficulty in social, occupation, or school functioning. In this case, the Veteran has stated that he has a good relationship with his family, and has not been found to have more than moderate PTSD symptomatology by either VA treatment providers or VA examiners. To the contrary, his symptoms have been described by multiple VA treatment providers as "mild." In so finding, the Board reiterates that the Veteran's assigned GAF scores are not dispositive of the evaluation and must be considered in light of the actual symptoms of his disorder. In this case, the Board has found that the Veteran's symptomatology, as discussed above, is appropriately compensated by the rating currently assigned. The above determination is based upon consideration of applicable rating provisions. For all the foregoing reasons, the Board finds that the claim for a disability rating higher than 50 percent for the Veteran's service-connected PTSD must be denied. This is so for the entirety of the appeal period. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The above determinations are based on consideration of the applicable provisions of VA's rating schedule. The Board finds that at no time has the disability under consideration been shown to be so exceptional or unusual as to warrant the referral for consideration of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected PTSD, without consideration of other disabilities, has rendered impractical the application of the regular schedular standards. Furthermore, his symptoms are all specifically contemplated by the criteria discussed above. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). It bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable 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). Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claim that is not contemplated by the rating schedule. The very symptoms the Veteran experiences are addressed by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). Post-traumatic stress disorder has not required frequent inpatient care or caused marked industrial impairment. As a result, the Board concludes that a remand for referral of the rating issue to the VA Central Office for consideration of extra-schedular evaluation is not warranted. ORDER Entitlement to a disability rating higher than 50 percent for posttraumatic stress disorder is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs