Citation Nr: 1318774	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  12-04 549	)	DATE
	)
	)

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire


THE ISSUE

Entitlement to an initial disability rating greater than 10 percent for post-traumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel


INTRODUCTION

The Veteran served on active duty from April 1968 to April 1970.  He was awarded the Vietnam Campaign Medal with device and the Vietnam Service Medal with two stars.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 RO decision which granted service connection for PTSD and assigned a 10 percent disability rating.  The Veteran has perfected an appeal as to the disability rating assigned.  He presented sworn testimony in support of his appeal during a RO hearing in January 2012 and again during a videoconference hearing before the undersigned Veterans Law Judge in February 2013.  


FINDING OF FACT

Throughout the appeal period, the Veteran's PTSD has caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he is generally functioning satisfactorily, with routine behavior, and self-care, etc.  


CONCLUSION OF LAW

A 30 percent disability rating for PTSD is warranted.  38 U.S.C.A. §§ 1155, 5107 West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that his PTSD causes greater impairment than is reflected by the 10 percent disability rating currently-assigned.  He asserts that his treating VA psychologist had told him that he believed the Veteran's PTSD should be rated as 30 percent disabling.  During another VA mental health visit, he reported feeling great frustration with the 10 percent disability rating because he felt that PTSD had dramatically interfered with his functioning throughout his life, and thus deserved a higher disability rating.

Duties to notify and assist

When an application for benefits is received, VA has certain notice and assistance requirements under the law.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must:  (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  He was informed of these elements with regard to his claim for service connection in a July 2010 letter, prior to the initial adjudication of the matter on appeal.  The Federal Circuit held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the disability rating assigned by a RO following an award of service connection.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  In this regard, once a decision has been made awarding service connection, a disability rating, and an effective date, § 5103(a) notice has served its purpose, as the claim has already been substantiated.  Sutton v. Nicholson, 20 Vet. App. 419 (2006).  

With regard to the VA examination reports which are of record, 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 examination obtained in this case is adequate with regard to the issue decided herein.  The examination report relied upon herein was predicated on a review of the claims folder and the relevant medical records contained therein; contains a description of the history of the disability at issue; and documents and considers the Veteran's complaints and symptoms.  The examiner considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

Service treatment records, VA medical records, and a VA examination report have been obtained and reviewed in support of the Veteran's claim.  The Veteran's two hearing transcripts pertaining to this issue have been reviewed as well.  All relevant records and contentions have been carefully reviewed.  The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein.

Standard of review

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation.  See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Analysis

Disability evaluations are assigned to reflect levels of current disability.  The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  In evaluating claims for increased ratings, the Board must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question.  38 C.F.R. § 4.10.  
   
In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Because he has perfected an appeal as to the assignment of the initial rating for PTSD following the initial award of service connection, the VA is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection until the present.  Fenderson v. West, 12 Vet. App. 119 (1999).  

Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period.  In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.  O'Connell v. Nicholson, 21 Vet. App. 89 (2007).  In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Under the governing regulatory rating criteria, PTSD is rated under a "General Rating Formula for Mental Disorders".  38 C.F.R. § 4.130, Diagnostic Code 9411.  The pertinent provisions of the General Formula are as follows:

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  [10 percent]

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).  [30 percent]

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.  [50 percent]

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.  [70 percent]

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. [100 percent]  38 C.F.R. § 4.130.

The psychiatric symptoms discussed above are not exclusive; they are examples of typical symptoms for the listed percentage ratings.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Put another way, the severity represented by those examples may not be ignored.  Entitlement to a particular disability rating requires sufficient symptoms of the kind listed in the requirements for each disability level, 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, 2012-7114 (Fed. Cir. Apr. 8, 2013).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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.  38 C.F.R. § 4.126(a).  However, when evaluating the level of disability 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).  All diagnoses of mental disorders must conform to the psychiatric standards set forth in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, The American Psychiatric Association (1994), (DSM-IV).  38 C.F.R. § 4.125.

The Veteran's older VA medical records, dated prior to his claim for service connection for PTSD, reflect a long and difficult struggle with substance and alcohol abuse.  It appears that he has fortunately conquered these demons, however, as his recent records reflect sobriety.  

During the time period at issue here, from June 2010, until the present, the Veteran sought mental health treatment from a VA psychologist for about sixteen months.  According to his hearing testimony, he had a good relationship with the psychologist, and was disappointed when the psychologist retired from the VA.  These records reflect serious mental health work and personal discovery, to include processing memories of Vietnam, and working on personal relationships.  At no point did the Veteran take psychotropic medication; rather his psychological treatment was therapy-based.  The Veteran's treating psychologist assigned Global Assessment of Functioning scores of 55 in September 2010, November 2010, and again in February 2011.  

VA treatment records reflect that the Veteran saw two different social workers for therapy after the psychologist retired, but he did not develop a relationship with either one.  During his last mental health visit in October 2011, he indicated he thought he could handle his PTSD on his own, but that he would check back, if needed.  (He continues to receive VA medical care for physical problems.)  During both hearings on appeal, he testified that he did not like being too introspective and that he prefers to focus his energies on working on his family relationships with his children and grandchildren.  He also testified that other than focusing on family relationships, he is isolated.  Even with family relationships, he testified that he sees his daughter and granddaughter, who live nearby, no more than twice a month.  

The Veteran underwent a VA psychiatric examination in March 2011.  During the examination, the Veteran indicated that he avoids thinking about Vietnam, because when he does, it seems so real that he feels as though he is back in Vietnam.  He reported not having nightmares anymore, but that he does have symptoms of hypervigilence, and that Vietnam memories are triggered by things he watches on the news.  The examiner noted that the Veteran is emotionally distant.  After rendering a diagnosis of PTSD, the examiner assigned a Global Assessment of Functioning score of 71, and explained that this represents slight impairment overall, because the veteran is "generally doing relatively well."  The examiner also opined that the Veteran's PTSD symptoms are ongoing, but that his PTSD symptoms only slightly interfere with employment functioning and mildly to moderately interfere with social functioning.  

Review of other evidence in the file reveals that the Veteran is retired, and survives upon his VA nonservice-connected pension benefits in conjunction with Social Security payments.  He does not drive and appears to live modestly.  He consistently reports that he has no hobbies or interests, other than playing computer games.  

Written statements submitted by the Veteran's daughter and his former wife attest to the difficulties he had with drugs and alcohol and to his new sober life to include attempting to rebuild relationships with his daughter and granddaughter.  His daughter described him as having been a "wondering soul since his return from Vietnam."

The assignment of a Global Assessment of Functioning score of 55 represents the assessments of mental health professionals that the veteran has "moderate symptoms or moderate difficulty in social, occupational, or school functioning."  By contrast, a Global Assessment of Functioning score of 71 represents "no more than slight impairment in social, occupational, or school functioning," manifested by transient and expectable reactions to psychosocial stressors.  DSM-IV.  

Overall, we find that the evidence of record supports a disability rating of 30 percent, and no higher than 30 percent.  In reaching this conclusion, the Board places greater emphasis upon the Global Assessment of Functioning scores assigned by his treating psychologist.  In this case, it would appear that the Veteran was able to open up to this particular psychologist in a way that he was unable to do with the VA examiner and two subsequent mental health experts at the VA.  Furthermore, the Veteran's testimony and written assertions are consistent with the medical evidence of record, and overall reflect PTSD symptomatology and impairment more nearly analogous to that represented by the criteria for the assignment of a 30 percent disability rating under the General Rating Formula for Mental Disorders.  His social impairment as manifested by his isolation in particular is more significant than reflected by the criteria for a 10 percent disability rating; his industrial functioning would appear to be somewhat reduced as well, although his status as a retired person renders his industrial impairment less significant.  

However, the Veteran's symptomatology, including his descriptions of his daily life and functioning, does not rise to the level of the symptoms provided as examples of occupational and social impairment with reduced reliability and productivity in the General Rating Formula.  Mauerhan; Vazquez-Claudio.  In particular, we note that the Veteran is functioning without medication or mental health treatment at the moment, and that he appears to be stable in this regard.  

The Veteran's hearing testimony is deemed helpful to the Board and credible insofar as it comports with the medical evidence of record.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).

In response to the Veteran's assertion that a higher rating is warranted because PTSD had dramatically interfered with his functioning throughout his life, the Board observes that our purview in this matter is limited to reviewing the disability rating in effect during the appeal period only.  In other words, while we sympathize with the effects this disability has had, and with his frustration over it, we can only review the appropriateness of the disability rating assigned from June 2010 through the present.

In summary, the evidence supports a grant of a 30 percent disability rating but no higher, for PTSD, effective from June 2011.  


ORDER

An initial disability rating of 30 percent for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
Mark W. Greenstreet
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs