Citation Nr: 1321357 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-21 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to May 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2008 of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran's claim for service connection for PTSD and assigned a 10 percent rating. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009) The holding of Rice is inapplicable here. Though the Veteran is not working, the evidence indicates that he retired after 31 years with the same company. Though the Veteran has stated that his PTSD made it more difficult to work, he has not contended that his PTSD renders him unable to find gainful employment. A claim for a TDIU has not been raised by the record and will not be considered. FINDING OF FACT The Veteran's PTSD symptomatology has resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a 30 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125 Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed . Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records and private treatment records have been obtained; he did not identify any VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in November 2007 and February 2009; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Instead, these examinations contain sufficient information to rate the Veteran under the applicable Diagnostic Code. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); II. Increased Initial Rating for PTSD Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the 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 life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Since the issue in this case is entitlement to an increased rating, the present level of his disability is the Board's primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As the Veteran's rating has already been staged here, the Board must review the propriety of both the dates of the stage and the ratings assigned. The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 10 percent rating is warranted when there is 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 when symptoms are controlled by continuous medication. Id. A 30 percent rating 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). Id. A 50 percent rating is warranted when 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. Id. A 70 percent disability 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); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 symptoms listed in Diagnostic Code 9411 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In evaluating psychiatric disorders, the VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale 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), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). GAF scores ranging between 71-80 denote no more than slight impairment in social functioning, with transient and expectable reactions to psychological stressors. GAF scores ranging between 61 and 70 are indicative of 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. When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a 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 evidence consists of letters from the Veteran and the results of two VA examinations; the Veteran has stated that he has not received VA or private treatment for his PTSD. In his August 2007 claim, the Veteran stated that he does not like to be around crowds, and that he suffers from sleeplessness. He stated that he suffers from flashbacks, that he does not trust others, and that he has problems with people. He stated that he treats his condition himself. The Veteran underwent a VA examination in November 2007. He stated that his symptoms had gotten worse, describing sleep disturbances, avoidance of crowds, visual hallucinations, anxiety, depression, and flashbacks. He stated that he does not attend therapy sessions. He is married and has one daughter, and he described his relationship with his wife as good. He stated that he is unemployed after retiring, but that he occasionally works on his own as a landscaper. Upon examination, the Veteran was described as alert and oriented to person, place, and time. His speech was clear and coherent and of normal rate and volume. He had no problems with thought processes, and no suicidal or homicidal intent. He reported visual hallucinations with regard to movement. His judgment and cognitive functions were reported as intact. His immediate and delayed memory were within normal limits. His mood was fair and his affect appropriate. The Veteran reported suffering from sleep disturbances, a decreased appetite, feelings of guilt, fatigue, recurrent memories and dreams, flashbacks, diminished interest in activities, decreased concentration, and hypervigilence. The examiner reported that the Veteran's mood assessment scale suggested a significant level of depression that is related to his PTSD activities. The examiner found that the Veteran would have mild impairment of both social and vocational areas. He diagnosed the Veteran as suffering from PTSD, and assigned a GAF score of 67. In his June 2008 notice of disagreement, the Veteran stated that he suffered from problems with his PTSD while he was employed, and that he took vacation to alleviate the problem. He stated that his sleep pattern had become worse, but that he had not sought treatment for his condition. In a July 2008 letter, the Veteran again stated that his condition had deteriorated. He stated that he suffered from panic attacks. He described his short term memory as poor, stating that he forgets names and directions. He stated that he retired early from his job. The Veteran underwent a second VA examination in February 2009. The Veteran stated that he has been married for 37 years, and he described his wife as a good friend. He stated that he is close to his daughter and visits her often, and that he enjoys seeing his grandchildren. He stated that he socializes with a few friends, and that he will meet these friends for breakfast on Sundays. Upon examination, the Veteran was described as neatly groomed and casually dressed. His psychomotor activity was unremarkable, and his speech spontaneous. He was cooperative, friendly, relaxed, and attentive toward the examiner. His mood was good and his affect appropriate. His attention was intact, and he was oriented to person, place, and time. The Veteran's thought processes and content were unremarkable. He had no delusions, and he understood the outcome of his behavior. He reported suffering from sleep impairment, but denied suffering from hallucinations, delusions, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, and suicidal and homicidal ideation. He is able to maintain his personal hygiene, and he had no problems with his activities of daily living. He also had good impulse control with no episodes of violence. Symptoms specific to PTSD were described as recurrent dreams, intense distress at certain cues, an exaggerated startle response, and a difficulty falling or staying asleep. The examiner diagnosed the Veteran as suffering from PTSD, and he assigned a GAF score of 75. He noted that the Veteran will avoid social or leisure activities at times, but described the Veteran as doing well. He noted that the Veteran is not having significant impairment in his functioning, and that he has not sought treatment for his condition. The examiner also noted that the Veteran retired after 31 years of working for the same company, and that the Veteran's symptoms are not severe enough to interfere with occupational and social functioning. In his June 2009 substantive appeal, the Veteran stated that his condition has not improved. He stated that he suffers from sleep disturbances, nightmares, and flashbacks. He described himself as a loner, but noted that he does spend time with his family. The Veteran's symptoms more closely approximate those described by the 30 percent rating. The VA examinations and the Veteran's lay statements show that he suffers from depression, anxiety, panic attacks, chronic sleep impairment, and mild memory loss. Each of these symptoms is included in the 30 percent rating. The Veteran has also described how his PTSD has impaired his occupational and social outlook, noting that he had difficulties dealing with stress and coworkers when he was employed, and that he keeps to himself. As the Veteran's PTSD symptoms and the effect they have on his occupational and social outlook most closely approximate those described by the 30 percent rating, an increased rating is warranted. Further, as the evidence shows that these symptoms have been present over the entire appeals period, this increased rating must be applied effective the date of his claim. The Veteran's symptoms do not rise to or approximate the level described by the 50 percent rating. Though he suffers from disturbances of motivation and mood and a difficulty in establishing and maintaining effective work and social relationships, he displays no other symptoms contained in the 50 percent rating. Nor is there any evidence of any other manifestations not included the rating schedule that might warrant a rating higher than 30 percent. The Veteran's symptoms are not productive of the occupational and social impairment with reduced reliability and productivity required for the 50 percent rating. Though the Veteran described problems while working, he nevertheless was employed by the same company for 31 years and retired when eligible. He also remains married and describes his relationship with his wife as good, and he enjoys visiting his daughter and grandchildren. The Veteran's GAF scores of 67 and 75 are also far above those typically found with a 50 percent rating. The Veteran's disability is not so severe as to warrant an extraschedular rating. An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations, neither of which are demonstrated by the evidence. 38 C.F.R. § 3.321 (2012). The Veteran's reported and observed manifestations are those provided for in the rating criteria; the first threshold of the Thun framework is not met, ending the Board's inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to an initial 30 percent rating for residuals PTSD, effective from the date of claim, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs