Citation Nr: 1318656 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-21 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to May 17, 2010. REPRESENTATION Appellant represented by: Robert V. Chisolm, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD, and assigned a 30 percent evaluation for it, effective January 18, 2008. The Veteran disagreed with the assigned rating. Based on the receipt of additional evidence, the RO, by rating action dated June 2010, assigned a 50 percent evaluation for PTSD, effective June 5, 2008. When this case was previously before it in August 2012, the Board assigned a 50 percent rating for PTSD, effective January 18, 2008, and a 70 percent evaluation effective May 17, 2010. The Veteran appealed the Board's August 2012 determination to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated January 2013, granted a Joint Motion for Partial Remand (JMR). It was specifically noted the Veteran did not appeal the 70 percent rating for PTSD, effective May 17, 2010. In its August 2012 determination, the Board found that the issue of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) had been raised by the record. Accordingly, this matter was remanded for adjudication by the RO. There is no indication the RO has taken any action on this claim. Accordingly, the claim for TDIU is not properly before the Board at this time. FINDING OF FACT Prior to May 17, 2010, the Veteran's PTSD was manifested by sleep impairment, nightmares, and infrequent suicidal ideation, and resulted in reduced reliability. Deficiencies in most areas were not demonstrated. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for PTSD, prior to May 17, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS 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). The appeal of the rating for PTSD arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for this disability. 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include a statement from the Veteran's spouse, VA medical records, and VA examination reports. VA clinical examinations have been obtained. 38 C.F.R. § 3.159(c)(4). The Board finds that the VA clinical examinations obtained in this case are more than adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. As appropriate, clinical findings pertinent to the schedular criteria for rating the disability at issue were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App 505 (2007). A 100 percent evaluation is warranted for PTSD with 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. A 70 percent rating 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); inability to establish and maintain effective relationships. A 50 percent evaluation is warranted if 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. One factor which may be considered is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. A score of 51 to 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). A GAF score of 41 to 50 indicates serious symptoms and serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job), while a GAF score of 31 to 40 indicates major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). See DSM-IV. The Board is cognizant that a GAF score is not determinative by itself. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court noted that the list of symptoms in the VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. It was indicated the regulation requires an evaluation of the effects of the symptoms, and not a search for a set of particular symptoms. VA outpatient treatment records disclose the Veteran was seen in January 2008 and reported his mood had been more depressed the past few months. He described poor sleep, and indicated he was lacking motivation, energy and interest. He related his PTSD symptoms had been more pronounced with intrusive recollections, preoccupations and nightmares. He denied suicidal ideation. On mental status evaluation, the Veteran was depressed and withdrawn. The dosage of his medication was increased and Ambien was added for sleep. The assessments were depression, moderate, PTSD and episodic alcohol abuse. The following month, he was first seen by a licensed practical nurse. On mental status evaluation, his grooming and hygiene were satisfactory, and his affect was brighter. He was noted to be pleasant and cooperative. He was alert and oriented. When seen by a psychiatrist later that day, his mood was better and he had a more relaxed presentation in general. The assessments were depression, improved and PTSD. It was indicated his PTSD symptoms were less pronounced. The Veteran was afforded a VA psychiatric examination in April 2008. He asserted he had been fired from a job with a railroad for "wrecking a train" due to being intoxicated. He also had worked for several heating and cooling companies, but said he did not get along with authorities, frequently missed work and was frequently intoxicated on the job. He had run his own heating and cooling company for 20 years. He had one assistant, with whom he got along well. He stated that for many of the previous 20 years, he had frequent periods of low productivity because of being depressed and drinking alcohol. The Veteran described his current marriage of two years, his fourth, as good. He maintained he had limited social relationships outside his family, but said they were satisfactory. He had infrequent contact with one son, and said the relationship was distant. He kept in contact with three or four veterans, and socialized infrequently with a couple of neighbors and family friends. He had occasions during which he became depressed and did not wish to socialize, and would isolate. He had lost interest in some activities because he felt uncomfortable in crowds, loud places and open spaces. He reportedly had quit all alcohol and marijuana about two years earlier. The Veteran reported he felt chronically depressed, had a history of suicidal ideation, though not currently, trouble sleeping and nightmares two to five times a month. He also stated he experienced intrusive thoughts, had panic symptoms, flashbacks and paranoia. He said at times he had fleeting homicidal thoughts, but never a plan or intention to carry out the thoughts. The Veteran claimed that many of his psychiatric symptoms had decreased since he began treatment at the VA. He said his depression was 4-5/10. He denied losing time from work due to psychiatric symptoms and denied experiencing loss of productivity in the previous year to any significant degree. He was managing his work sufficiently. On mental status evaluation, the Veteran was dressed casually and maintained good eye contact. His grooming was fair, and his hygiene good, with an overall fair appearance. He appeared to have adequate energy, and was cooperative and interested. His speech was of normal rate and rhythm. He reported his mood has been "better," which was congruent with his affect. His thought process was goal directed. No abnormal thought content was present. The Veteran denied current suicidal or homicidal ideation. No delusions were present. He was oriented to person, place and time. His memory appeared intact. The Veteran denied engaging in ritualistic behaviors. His insight and judgment were good. Psychological testing supported the conclusion the Veteran experienced moderate to severe levels of symptoms related to PTSD and had mild to moderate impairment in his social and occupational functioning. It was reported the Veteran was easily startled and hypervigilant. He experienced problems with anger, concentration and sleep. He avoided other people and crowded places. He had a foreshortened sense of the future and felt detached from others and numb to his own emotions. He reported experiencing nightmares and flashbacks, and frequently had traumatic memories. The diagnosed were PTSD, chronic, moderate, with associated depression, and alcohol dependence, in sustained full remission. The Global Assessment of Functioning score was 55, indicating a moderate level of symptoms and mild impairment in social and occupational functioning. In October 2008, the Veteran's spouse wrote that she had been with the Veteran for 15 years. She noted he was a good-hearted person, but had been trying to deal with the effects of Vietnam on his own, and in all the wrong ways. Additional VA outpatient treatment records have been associated with the claims folder. In June 2008, the Veteran asserted his mood had been fairly good the last couple of months. He felt his medications were working OK. He reported episodic nightmares and intrusive thoughts. He said his sleep was variable, from poor to fairly good. On mental status evaluation, he was cooperative and organized. He had minimal elaboration, about per usual. His thought form was fairly linear. His mood was "fairly good" and his affect was constricted. The assessments were depression and PTSD. In September 2008, the Veteran was noted to be pleasant and cooperative. He was alert and oriented. He thought there was a slight improvement in his mood, but saw no difference in concentration, memory, focus or energy. His grooming and hygiene were neat and clean. His sleep was fair. The Veteran related he had experienced several losses and had been dealing with it as best he could. He rated his depression at 5-6/10 and his anxiety at 3/10. The diagnoses were depression, moderate, and PTSD. When seen in January 2009, the Veteran stated his mood had been pretty depressed, essentially since his previous visit. It was noted his mood was not good then. He said he had been feeling unmotivated and uninterested. He denied hopelessness and suicidal ideation. He claimed his nightmares had been more active and distressing, and his sleep had been poor. The Veteran was noted to be depressed, but not suicidal. His PTSD symptoms were said to be worsened. The assessments were PTSD and depression. The Veteran was again afforded a VA psychiatric examination on May 17, 2010. He reported increasing difficulty relating to anyone other than his spouse. He described a rising ineffectiveness in his interpersonal dealings in general, characterized by irritable reactions, resulting in yelling, cursing and threatening. The Veteran stated the net effect of his was further social withdrawal. He noted the dissolution of two close friendships since the previous VA psychiatric examination. He maintained that he had been working part-time, but that for the previous six months, he had not worked at all. He attributed this to interpersonal difficulties, more than the economy. He claimed he simply found it increasingly difficult in the last two years to interact with customers and provide quality service. Thus, he had experienced a decrease in business. The Veteran asserted his symptoms had worsened. He alleged it took longer to recover from the impact of nightmares and intrusive memories. He reported greater sensitivity to negative reactions from others, and dwelling on the circumstances of them for longer periods. His leisure functioning was significantly compromised, relating he derived no pleasure from previous interests, and he had not cultivated new ones. He added he was more depressed and hopeless. The Veteran maintained that in the previous month, he had experienced repeated and disturbing recall and dreams of stressful military experiences, detachment from others, emotional numbness, a foreshortened sense of the future, sleep disturbance, irritability, difficulty concentrating, hypervigilance and an exaggerated startle response. He insisted these symptoms had caused clinically significant distress in social, leisure and vocational functioning. The examiner summarized the Veteran's VA clinic visits. In April 2009, the Veteran was noted to be preoccupied with the "relative brevity and fragility of life," as well as continuing nightmares and intrusive thoughts of his combat experiences. It was noted that the Veteran's dosage was again increased in June 2009, in response to reported depression. Additional medication was added in November 2009 and in March 2010, it was stated there appeared to have been a positive effect on the Veteran's mood, motivation, intrusive thoughts and nightmares/sleep. In addition to suicidal ideation, the Veteran reported other symptoms of depression in the last two weeks, including sadness, pessimism, concerns over past failures, feelings of guilt, tearfulness, agitation, loss of interest, feelings of worthlessness, loss of energy, decreased sleep, irritability, difficulty concentrating and fatigue. The examiner noted the Veteran had appropriate hygiene and grooming. It was apparent from the mental status evaluation and the quality of his responses to the examiner's questions that the Veteran was alert and completely oriented, and capable of accurate reality testing. While he acknowledged suicidal ideation, he had not plan or intent to harm himself. He denied homicidal ideation, and no symptoms of a psychosis were apparent or reported. The diagnoses were PTSD, chronic and major depressive disorder, recurrent, severe, without psychotic features. The Global Assessment of Functioning score was 50. The examiner commented the Veteran experienced an array of symptoms on a regular basis. He had frequent suicidal ideation, although without a plan or intent to harm himself. Despite increases in psychotropic medications, the Veteran had exhibited difficulty sustaining functioning in social, leisure and vocational areas of life, with particularly significant decompensation in the social and vocational arena. The Veteran described a rising ineffectiveness in his interpersonal dealings and cited the dissolution of two friendships. The Veteran asserts a rating in excess of 50 percent is warranted prior to May 17, 2010. While it is true, as his representative argues, that the Veteran had problems at several jobs and was unable to grow the company he owned and operated, the fact remains that the April 2008 VA psychiatric examination demonstrated the Veteran was then working full time and got along well with his only employee. His work-related problems were in the distant past. He did have limited social contacts other than with his family, but acknowledged he maintained contact with about four other veterans and did some socializing with friends. Although he reported transient homicidal ideation, the Veteran specifically denied any current suicidal or homicidal ideation. The Board concedes the Veteran stated he had intrusive thoughts, nightmares, panic symptoms and flashbacks. It is significant to point out, however, that the examination demonstrated his personal hygiene was not neglected. He was fully oriented and exhibited no abnormal thought content or delusions. Indeed, the Veteran indicated his mood was better since he began treatment. It is not disputed that the Veteran had problems with anger, concentration and speech. The Board observes the examiner noted the Veteran's PTSD symptoms were moderate to severe, but concluded he had only mild to moderate impairment in his social and occupational functioning. The VA outpatient treatment records dated from 2008 to 2010 reflect his symptoms were no more than moderate. While the Veteran stated he was depressed in January 2009, he denied suicidal ideation. The examiner indicated his symptoms had worsened. Adjustments were made to his medication regimen, and it was concluded in March 2010 there had been a positive effect on his mood, motivation, intrusive thoughts and nightmares/sleep. The fact remains that the findings recorded on the May 17, 2010 VA psychiatric examination provided the basis for the 70 percent evaluation that was assigned. The Veteran's representative argues that this examination merely reflected a more accurate portrayal of the severity of the Veteran's disability picture. As noted above, the examiner summarized some of the VA clinic records. The Board concedes that the Veteran's medications were increased on several occasions in 2008 and 2009, the most recent visit prior to the May 2010 examination demonstrated there had been a positive effect on the Veteran's symptoms, including his mood, motivation, intrusive thoughts and sleep. The Veteran did report increasing problems in his marriage and that he had not worked for six months. In reviewing the present appeal, the Board has given consideration to all demonstrated symptoms, not merely the examples set forth in the rating criteria. However, the effects of the demonstrated symptoms do not result in deficiencies in most areas to warrant assignment of a rating in excess of 50 percent for the time period under consideration. The Board finds the preponderance of the evidence is against the claim for an evaluation in excess of 50 percent prior to that date. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected PTSD. The Veteran's PTSD is manifested by nightmares and flashbacks, symptoms contemplated by the rating schedule. There is a higher rating available under the diagnostic code addressed in this decision, but the Veteran's PTSD is not productive of the manifestations that would warrant the higher rating. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, except as noted above, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial evaluation in excess of 50 percent for PTSD, prior to May 17, 2010, is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs