Citation Nr: 1321086 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 11-04 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to increase in the ratings for posttraumatic stress disorder (PTSD) (currently assigned "staged" ratings of 10 percent prior to May 30, 2012 and 30 percent from May 30, 2012). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1966 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Prior to May 30, 2012, the Veteran's PTSD is not shown to have been manifested by symptoms productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From May 30, 2012, the Veteran's PTSD is not shown to have been manifested by symptoms productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Ratings for PTSD in excess of 10 percent prior to May 30, 2012 and in excess of 30 percent from May 30, 2012 are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). October 2009 and January 2010 letters provided notice on the "downstream" issues of disability ratings and effective dates, prior to the June 2010 rating decision. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's service treatment records (STRs) and VA treatment records has been completed. In connection with this claim, VA PTSD examinations were performed in April 2010 and May 2012. Taken together, these examinations are adequate. The April 2010 examiner specifically noted that the claims folder had been reviewed and she obtained a reported history from the Veteran and conducted a thorough examination, which included providing Global Assessment of Functioning (GAF) score. While the May 2012 examiner noted that the claims folder was not available for his review, he did state that he conducted a review of available records and conducted a thorough examination and interview of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board is satisfied that evidentiary development is complete; VA's duties to notify and assist are met. The Veteran is not prejudiced by the process in this matter. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet App 119, 125-26 (1999), the U.S. Court of Appeals for Veterans Claims (Court) distinguished appeals involving a Veteran's disagreement with the initial rating assigned at the time a disability is service-connected. Accordingly, where the question for consideration is the propriety of the initial rating assigned, as here, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged ratings" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, in determining the appropriate disability rating, the Board must consider whether the case should be referred for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). When there is an approximate balance of positive and negative 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). PTSD is rated under the General Rating Formula for Mental Disorders. A 10 percent evaluation is warranted when the Veteran experiences 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. A 30 percent evaluation is warranted when there is 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). A 50 percent evaluation is warranted where 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9411. 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; 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. Id. A 100 percent evaluation is warranted for 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 Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 denotes 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, has some meaningful interpersonal relationships. A GAF score of 51-60 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 peers or co-workers). A GAF score of 41-50 indicates 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). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Rating Prior to May 30, 2012 A 10 percent rating is currently assigned for the period prior to May 30, 2012. Prior to May 30, 2012 (and from the effective date of the grant of service connection in 2009), the Veteran's PTSD symptomatology is not shown to more nearly approximate the criteria for a rating in excess of 10 percent. The evidence during this period consists of lay statements submitted by two of the Veteran's former employers stating that the Veteran was fired due to his inability to report to work on time and excessive absences, which he attributed to lack of sleep. VA treatment records include a November 2008 record noting the Veteran was alert, pleasant, cooperative, and was euthymic with full and appropriate affect. Additionally, he was oriented in three out of three spheres, his recall, remote and recent memory was intact, and his thoughts were coherent and goal-directed. A January 2010 mental health consultation record noted that the Veteran was neatly dressed and groomed, pleasant and cooperative, and had no agitation or retardation. The Veteran's mood was anxious, but not depressed, and his affect was normal in range and reactivity. The physician noted that his thinking was linear, he was not psychotic, suicidal or homicidal, and his insight and judgment were intact. On April 2010 VA PTSD examination, the Veteran reported problems with sleep disturbance and recurring nightmares. He denied homicidal and suicidal ideation, but did admit to a history of passive suicidal thoughts. The Veteran negated compulsive, obsessive or ritualistic behavior, or impaired impulse control. The examiner noted the Veteran's hygiene and grooming were good, he displayed good eye contact, and there were no abnormalities in his psychomotor activity. The examiner stated that the Veteran's manner of interaction was cooperative and pleasant, with no inappropriate behavior observed. His rate and flow of speech was constant, clear, logical, and coherent with no indications of irrelevant, illogical, or obscure speech patterns. His thought processes were clear, logical, linear, coherent, and goal-directed. The examiner noted no flight of ideas or loosening of associations. The Veteran did not exhibit paranoia, delusions, or hallucinations. His thought content was relevant and appropriate, with no anomalies noted. The examiner also noted that the Veteran's mood was mildly anxious with sad affect; however, there was no history of panic attacks and he was alert and fully oriented to person, place, and time. The examiner stated that he exhibited no significant deficits in concentration or memory. Chronic, mild PTSD was diagnosed; the GAF score was 70. This score reflects mild symptomatology, but that the individual generally is functioning pretty well and has some meaningful interpersonal relationships (and notably is the highest score in that range of GAF scores). The examiner opined that the Veteran's occupational functioning appears to have been mildly to moderately affected by PTSD symptoms. The examiner noted that he considered the Veteran's past work history, including at least 4 or 5 firings due to low energy and lack of sleep contributing to absenteeism; however, the examiner concluded that such PTSD symptoms are mild and transient and only decrease work efficiency and ability to perform occupational tasks during periods of significant stress. The evidence delineated above is consistent with the scheduler (10 percent) rating assigned, and does not provide a separate basis for the assignment of an increased rating. Although the Veteran reported sleep impairment, which affects his work efficiency, the examiner noted that such symptom only mildly to moderately affected occupational functioning. Additionally, symptoms decreasing work efficiency during times of significant stress is contemplated by the 10 percent rating criteria and sleep impairment alone is not enough to more nearly approximate a higher rating (30 percent). Instead, the preponderance of the evidence is against a higher schedular rating for this period as the findings with respect to the severity of the Veteran's PTSD do not warrant a 30 percent (or higher) rating when all the manifestations shown are considered. See Mauerhan, 16 Vet. App. at 436. Referral of this claim for an extraschedular rating has been considered. Whether referral is warranted requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. There is no objective evidence or allegation in the record of symptoms and/or impairment due to PTSD not encompassed by the criteria for the 10 percent rating assigned. Therefore, the schedular criteria are not inadequate. Accordingly, referral for extraschedular consideration is not warranted. Rating From May 30, 2012 As is noted above, the rating assigned for this period of time is 30 percent. The focus is on whether manifestations of the PTSD meet or approximate the criteria for a 50 percent (or higher) rating. On May 30, 2012 VA examination, the Veteran reported experiencing nightmares 1-3 times per week, poor sleep maintenance secondary to hypervigilance, avoidance of thinking about prior trauma, and reactivity to triggers that remind him of those experiences. He stated that lack of sleep was the main reason he has had difficulty with steady employment. The examiner noted that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. PTSD symptoms include chronic sleep impairment, mild memory loss (which the examiner attributed to an attention problem rather than frank memory deficit), and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran does not take any psychiatric medications and is not in psychotherapy of any kind. While it was noted that the Veteran's symptoms had increased from mild to moderate (providing the basis for the increase in the rating to 30 percent), the examiner specifically found that there was no reduced reliability and productivity due to PTSD symptoms. As far as the listed symptoms in the rating schedule for the 50 percent rating, the Veteran did not exhibit flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, or disturbances of motivation and mood. As for mild memory loss noted, the examiner specifically indicated that although the Veteran reported difficulty recalling conversations or names, he had adequate recognition suggesting this is an attention problem rather than a memory deficit. And although the examiner noted the Veteran experienced difficulty in establishing and maintaining effective work and social relationships, the Board notes that the Veteran did report having friends in the community who he may see twice per week, and stated that he continues to work 15-20 hours per week as a handyman. Given the 2012 examiner described the Veteran's PTSD as moderate and did not endorse criteria for the next higher, 50 percent, rating, and given that over this period, the Veteran was not noted to be taking any psychiatric medication or participating in psychotherapy, viewing the evidence of record in its entirety, the Board finds that the preponderance of the evidence is against a finding that the criteria for a 50 percent rating are met (or approximated). Regarding whether the disability pictures for this period of time warrants referral for consideration of an extraschedular rating, the Board finds that the first element of Thun is not met. Manifestations of PTSD during this period, sleep disturbance and difficulty in establishing and maintaining effective work and social relationships, are contemplated by the schedular criteria; therefore, those criteria are not inadequate. Consequently, referral of this matter for extraschedular consideration is not in order. The Board has considered whether the matter of a total rating based on individual unemployability is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A total rating for compensation purposes based on unemployability will be granted when the evidence shows that the Veteran, by reason of his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341. Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2012). Factors to be considered include the Veteran's education and employment history. Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The evidence reveals that the Veteran has a general equivalency degree and that he has worked in the past constructing custom homes and commercial buildings. He reported in January 2010 that he had struggled financially in the last two years "due to a downturn in the economy" and he was currently unemployed. During his April 2010 VA examination, he reported that he primarily worked in construction but had worked a number of odd jobs as a handyman since he was diagnosed with cancer in 2001. The Board notes that the Veteran is nonservice-connected for bladder and prostate cancer. The Veteran reported a history of 4 or 5 firings in his lifetime due to low energy and a lack of sleep contributing to absenteeism. He reported that he missed a month's worth of work in the last year due to mental health issues. He also reported that he had been denied promotions because he could not respond the emergencies involving fire in the workplace. A statement received in October 2010 from M.O., stated that he hired the Veteran to oversee maintenance issues in the 2006-2007 timeframe "but was forced to let him go after a few weeks due to his inability to report to work on time and excessive absence." Mr. M.O. noted that the reason was "loss of sleep." During his 2012 VA examination report, the Veteran reported that his "work performance has always been good" but that he is late for work 4 to 5 days a month. He reported that he has worked as a handyman for the last 10 years which enables him to show up late without repercussions. He reported that his position is going well but with the poor economy he can only work 15-20 hours per week. The Veteran does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) as he has one service-connected disability, PTSD, rated a maximum of 30 percent during this appeal. Based on a review of the record, the Board finds that referral for an extraschedular TDIU rating is not warranted in this case. In this regard, the Board notes that the preponderance of the evidence does not suggest that the Veteran's sole service-connected disability prevents him from obtaining and maintaining gainful employment. While he is late for work approximately once a week and has reported missing a month of work during the course of a recent year, the Board finds these effects on his employability are considered in his current ratings. Referral is not warranted as the preponderance of the evidence does not show that his single service-connected disability results in unemployability. While the Board is aware of M.O.'s statement that the Veteran could not maintain employment with his company due to tardiness, it is clear that the primary reasons for the Veteran's current part-time employment and his periods of unemployability in recent years are an economic downturn and the fact that he was diagnosed with, and underwent significant treatment for, nonservice-connected disabilities, namely bladder and prostate cancer. The Board finds more probative the Veteran's statements, made in connection with medical treatment, that his nonservice-connected disabilities and the economic downturn impact his employability, than the statements of individuals made in connection with a claim for disability benefits. For these reasons, the Board finds that referral for an extraschedular TDIU rating is not warranted. ORDER Ratings for PTSD in excess of 10 percent prior to May 30, 2012 and in excess of 30 percent from May 30, 2012 are denied. _____________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs