Citation Nr: 1320544 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-43 808 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to an initial rating in excess of 70 percent for a psychiatric disorder, characterized as PTSD, dysthymic disorder, and panic disorder with agoraphobia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to February 1972. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the RO. FINDING OF FACT Since service connection became effective July 31, 2007, the Veteran's service-connected psychiatric disorder has not been shown to result in total social and industrial impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent have not been met for the Veteran's service-connected psychiatric disorder, characterized as PTSD, dysthymic disorder, and panic disorder with agoraphobia. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Codes 9411 and 9412 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. On July 31, 2007, the RO received, the Veteran's substantially complete application for entitlement to service connection for a psychiatric disorder, claimed as PTSD. In August 2007, the RO notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by the Veteran, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. In its August 2008 rating action, the RO granted the Veteran's claim of entitlement to service connection for a psychiatric disorder, characterized as PTSD, dysthymic disorder, and panic disorder with agoraphobia and assigned a 70 percent disability evaluation, effective July 31, 2007. The Veteran disagreed with that rating percentage, and this appeal ensued. Inasmuch as it is derived from the initial service connection claim, the issue of entitlement to an increased rating is considered a "downstream" issue. Grantham v. Brown, 114 F.3d 1156 (1997). Although VA has not specifically notified the Veteran of the information and evidence necessary to substantiate the increased rating claim, such notice is not required in this case. In December 2003, VA General Counsel issued a precedential opinion stating that, if VA received a notice of disagreement (NOD) in response to a decision on a claim for which VA had already sent the Veteran a duty to assist letter, and the NOD raised a new issue, the duty to assist the Veteran did not require VA to provide notice of the information and evidence necessary to substantiate the newly raised "downstream" issue. See VAOGCPREC 8-03 (2004). The Board is bound by that opinion. 38 U.S.C.A. § 7104(c) (West 2002). Hence, VA has essentially complied with its duty to notify VA also fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the following records: the Veteran's service treatment and personnel record; records reflecting his VA treatment from September 1997 through October 2009; statements from his wife, daughter, and L. M., a fellow employee; and reports reflecting his treatment at the Mountain Comprehensive Care Center from September 2007 to April 2009. In July 2008, VA examined the Veteran to determine the nature, extent, and etiology of any psychiatric disorder found to be present. The VA examination reports show that the examiner reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examination is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board notes that the Veteran's last psychiatric examination is nearly five (5) years old. The mere passage of time since these examinations is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the disabilities since the last respective examinations. The Veteran has not argued the contrary. Finally, on VA Form 9, dated in November 2009, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, he has declined to accept that offer. The Merits of the Appeal In its August 2008 rating action, the RO granted the Veteran's claim of entitlement to service connection for a psychiatric disorder, characterized as PTSD, dysthymic disorder, and panic disorder with agoraphobia and assigned a 70 percent disability evaluation, effective July 31, 2007. The Veteran disagreed with that rating percentage, and this appeal ensued. The Veteran contends that his service-connected psychiatric disorder is manifested, primarily depressed feelings, sleep impairment, irritability and a quick temper, and episodes of rage and panic attacks several times a week. He states that such manifestations have caused virtually total social and industrial impairment to the point that an initial 100 percent schedular rating is warranted. He avers that the only reason that he maintains employment is that he has little interaction with the public, co-workers, or supervisors. He is nevertheless fearful that his outburst may result in his termination from his current job. He says he lives in constant fear of losing his job. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule For Rating Disabilities. 38 C.F.R. § Part 4 (2012). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Psychiatric disorders, such as PTSD, panic disorder and/or agoraphobia, and dysthymic disorder, are rated in accordance with the provisions of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Codes 9201 - 9440. A 70 percent 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted for the Veteran's psychiatric disorder, when there are 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; and memory loss for names of close relatives, own occupation, or own name. Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided guidance in rating psychiatric disability. See Vazquez-Claudio v. Shinseki, ___F.3d___, No. 2012-7114, 2013 WL 1395804 (Fed. Cir. April 8, 2013). In that case, the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Id. at 2. It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 4. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 2. Relevant to the level of impairment caused by a service-connected psychiatric disorder is the score on the Veteran's Global Assessment of Functioning (GAF) Scale. That scale is found in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV) and reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996). The nomenclature in DSM IV has been specifically adopted by VA in the evaluation of mental disorders. 38 C.F.R. § 4.125, 4.130 (2012). A GAF of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. See Carpenter v. Brown, 240, 242 (1995). A GAF of 41 to 50 signifies serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See Richard v. Brown, 9 Vet. App. 266, 267 (1996)). While important in assessing the level of impairment caused by psychiatric illness, the GAF is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran 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). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (When service connection is granted and an initial rating award is at issue (as in this case) separate ratings can be assigned for separate periods from the time service connection became effective.). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's VA treatment records, reports from Mountain Care Medical Center, lay statements, and VA examination report, show that the Veteran's psychiatric disorder is manifested primarily by depressed feelings, sleep impairment, diminished concentration, hypervigilance, startle response, irritability and a quick temper, and episodes of rage and panic attacks several times a week. During those attacks, he experiences heart palpitations, sweating, trembling, dizziness, and shortness of breath. Collectively, such findings have been found to result in serious social impairment with the Veteran reportedly withdrawing to the point of social isolation. Indeed, he reportedly avoids leisure and recreational activities, even with his family, and the seriousness of his symptoms is reflected in his GAF which ranges from 45 to 55. Despite the foregoing manifestations, however, the preponderance of the evidence shows that the Veteran is alert and well-oriented, clean and well-groomed, and cooperative with logical, goal-oriented thought processes. Although he has reported suicidal ideation to the Mountain Comprehensive Care Center, he has denied any plan or intent; and he has consistently denied suicidal or homicidal ideation to VA. Moreover, he does not demonstrate persistent delusions or hallucinations; grossly inappropriate behavior; an intermittent inability to perform activities of daily living, such as the maintenance of minimal personal hygiene); or a memory loss for names of close relatives, his own occupation, or his own name. he has not demonstrated any of the delineated symptoms or others of similar severity, frequency, and duration The fact that the Veteran is married and has maintained that marriage for over 35 years also tends to refute the finding of total social impairment. Consideration is given to his statement that he and his wife are distant from each other and spend a bulk of their time in different parts of their home. However, he also says that they occasionally watch television together; and, that, while he does not actively participate in family activities, he feels "fairly close" to his children and step-children. He also reports going out for lunch with a group of veterans once a month. In other words, while the symptoms of his psychiatric disorder are serious, total social impairment is not shown. In addition to serious social impairment, the Veteran states that it significantly impairs his ability to do his job. He states that due to his anger and inability to get along with others, he is constantly fearful of losing his job as a maintenance man at a local park. He also states that his psychiatric problems impair his judgment and cause him to experience periods of time for which he cannot account. He maintains that such episodes pose a safety threat to himself and others, when operating large pieces of machinery. While the Veteran reports that his psychiatric disorder significantly impairs his ability to perform his job and causes him to be a safety hazard for others, the overall record suggests otherwise. During his July 2008 VA examination, he reported a 40 year history of employment as a factory worker, coal miner, fast food worker, or construction worker. He also reported that since 2005, he had been employed as a county park custodian, and the VA examiner found that the Veteran's service-connected psychiatric disorder resulted in no more than mild impairment with respect to his employment. Such an employment history is not consistent with the total occupational and social impairment necessary for a 100 percent schedular evaluation. As noted above, the percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Indeed, the 70 percent rating currently in effect is itself recognition of the serious impairment attributable to the Veteran's psychiatric disorder. In deciding this claim, the Board acknowledges that the Veteran is competent to report symptoms of his psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected psychiatric disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In light of the foregoing discussion, the Board finds that the preponderance of the competent evidence of record is against a finding that the manifestations of the Veteran's service-connected psychiatric disorder meet or more nearly reflect the criteria for a schedular rating in excess of 70 percent. That rating is confirmed and continued, and the appeal is denied. In arriving at the foregoing decision, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for approval of an extraschedular rating for the Veteran's service-connected PTSD. 38 C.F.R. § 3.321(b)(1) (2012). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue 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). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare 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. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the initially assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The criteria in the General Rating Formula for Mental Disorders and the DSM-IV factors associated with the assignment of GAF's contemplate the Veteran's primary symptoms of depressed feelings, sleep impairment, diminished concentration, hypervigilance, startle response, irritability and a quick temper, and episodes of rage and panic attacks several times a week. Moreover, they contemplate the effect of his psychiatric disability on his daily and activities and employment. In short, the Veteran does not have symptoms associated with his service-connected psychiatric disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115. Therefore, the preponderance of the evidence is against a finding that the Veteran's psychiatric disorder presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Further action is not warranted under 38 C.F.R. § 3.321 (b)(1) . ORDER Entitlement to an initial rating in excess of 70 percent for a psychiatric disorder, characterized as PTSD, dysthymic disorder, and panic disorder with agoraphobia, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs