Citation Nr: 1319018 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 11-28 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1999 to January 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Jurisdiction over the Veteran's claims file was subsequently transferred to the Houston, Texas RO. When this case most recently was before the Board in December 2012, it was remanded for additional evidentiary development. The case since has been returned to the Board for further appellate action. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file was completed to ensure comprehensive review of the evidence. FINDINGS OF FACT 1. The Veteran failed to attend the examination requested by the Board without good cause shown. 2. The Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met during the pendency of this appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.655(b), 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's service-connected PTSD has been evaluated as 50 percent disabling under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, DC 9411. Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires 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. A 70 percent disability rating requires 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 100 percent disability rating requires 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. The Court has held that the symptoms associated with each rating in 38 C.F.R. § 4.130 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. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his occupational and social impairment, including, if applicable those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See Mauerhan, 16 Vet. App. at 443. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Id. In this regard, VA 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. 38 C.F.R. § 4.126 (2012). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In evaluating psychiatric disorders, VA also considers a claimant's Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the DSM-IV reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. Historically, the Veteran was granted entitlement to service connection for PTSD in a February 2001 rating decision with an evaluation of 30 percent from the date of service connection on January 20, 2001. In a February 2005 rating decision, the RO increased the disability rating for PTSD from 30 to 50 percent, effective March 15, 2004. In May 2009, the Veteran requested an increased rating. The Veteran was afforded a VA examination in January 2010 in which he was noted to be dressed appropriately, cooperative on examination, anxious, apprehensive, with an angry affect, speech appropriate, and was not very communicative at first but at the end was more relaxed. He reported symptoms to include irritability, restlessness, anxiety, insomnia, headaches, nausea, fatigue, nightmares, paranoia, and hallucinations. The Veteran was diagnosed with PTSD. Unfortunately, the Veteran failed to report for a VA examination scheduled for March 2013, despite being advised of the examination. As a result, the evidence of record is not sufficient to establish that he the level of impairment required for the next higher rating, 70 percent. To this point, failure to report for examination or submit evidence may be considered as abandonment of a claim. Morris v. Derwinski, 1 Vet. App. 260 (1991). Also, when a claimant fails without good cause to report for an examination scheduled in conjunction a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Good cause includes, but is not limited to, illness or hospitalization of the claimant, death of an immediate family member, etc.... Id. The Court has further clarified that when a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See Turk v. Peake, 21 Vet. App. 565, 570 (2008). As to the first point, when remanding this claim in December 2012, the Board had determined that a medical examination was needed to fairly decide the Veteran's claim. According to the medical evidence in the claims file, no VA examination was provided to the Veteran three years ago in 2010. Therefore, the Veteran's failure to report to a VA examination is fatal to his claim for an increased evaluation because the evidence currently of record simply is not adequate to adjudicate his PTSD disability. As to the second point, neither the Veteran nor his representative has provided any good cause or adequate explanation for his failure to report for a VA compensation examination to obtain this necessary medical evidence. As the Veteran has not provided good cause for his failure to report for the 2013 examination and such examination was necessary to establish the severity of his PTSD disability, in accordance with VA regulation, his claim for a higher evaluation must be summarily denied. See 38 C.F.R. § 3.655(b) (using "shall" to denote automatic, nondiscretionary, summary denial of the claim). In any event, even if the Board did not deny on this basis, the best evidence in the case clearly indicates that the 50% is the most appropriate evaluation at this time. Treatment records fail to indicate occupational and social impairment with deficiencies in most areas. The Veteran is generally referred to as "pleasant and well oriented" (see November 2000 examination) with difficulties in his family life (see treatment report of October 2004) and a history of alcohol abuse. In this regard, it is important for the Veteran to understand that a Veteran with a 50 percent evaluation will have significant problems. A 50% evaluation indicates generally a 50% reduction in the ability to function, which requires occupational and social impairment with reduced reliability and productivity, as the Veteran has indicated he has. Without considering the Veteran's problems, the current evaluation could not be justified. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. Here, the May 2010 letter provided all notice required for increased rating claims as discussed in the preceding paragraph, and also provided notice of the specific rating criteria applicable to mental health disorders, although such notice is not mandatory. Accordingly, the Board finds that the duty to notify has been satisfied with regard to the Veteran's increased rating claim for PTSD. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that service treatment records (STRs) and pertinent post-service medical records have been associated with the claims folder. The Board notes that the Veteran failed to report for a VA examination scheduled in March 2013 in compliance with the December 2012 Board remand, despite being advised of the examination. The Court has held that VA's duty to assist a veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim. In written argument submitted in May 2013, the Veteran's representative provided no reason why the Veteran did not attend the examination. The Board also is unaware of any such outstanding evidence. Therefore, the Board is satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. ORDER Entitlement to a rating in excess of 50 percent for PTSD is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs