Citation Nr: 1321489 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 10-03 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that, in pertinent part, granted service connection for PTSD and assigned an initial disability rating of 30 percent, effective from the date of service connection on July 23, 2007. The Veteran testified before an RO Decision Review Officer (DRO) at the RO in July 2010; a copy of the transcript is of record. This case was previously before the Board in November 2012 when it was decided in part and remanded in part for further development. The required development having been completed, this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The occupational and social impairment from the Veteran's PTSD more nearly approximates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks than reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts entitlement to a higher initial rating for his service-connected PTSD. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. 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. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects the Veteran was provided VCAA notice by a letter mailed in September 2007, to include notice regarding the disability-rating and effective-date elements of his claim. 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), service personnel records (SPRs), VA medical records, and VA compensation and pension (C&P) examinations have been associated with the claims folder. Neither the Veteran nor his representative has identified any additional outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and not prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria are as follows. A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by continuous medication. A 30 percent rating is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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 effective work and social relationships. A 70 percent rating is warranted for 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 rating 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. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record in a case before VA with respect to benefits under the laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA will give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. Background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected PTSD. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Service connection for PTSD was granted in a June 2008 rating decision. At that time, the Veteran was assigned an initial disability rating of 30 percent, effective from July 23, 2007. The Veteran appealed. The Veteran was afforded a VA examination in March 2008 in which he reported taking general study classes in college after service, retiring from his last job due to medical issues he related to Agent Orange, having a good relationship with his wife of 21 years, being actively involved in church, feeling emotionally close to his immediate family, and partaking in family actives. He also reported PTSD symptoms to include avoidance of crowds, no close friends outside of his family, distrusting others, intrusive trauma memories, sleep disturbances, nightmares, panic attacks, flashbacks two to three times per year, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. Mental status examination showed normal speech, intact orientation and abstract thinking, impaired memory, full affect, and no suicidal or homicidal thoughts. The VA examiner diagnosed PTSD with a GAF score of 58, indicating moderate symptoms. The Veteran was afforded a VA examination in August 2010 in which he reported having an "alright" relationship with his wife, good relationships with his grandchildren, that he socialized with family and attended church weekly. Mental status examination showed unremarkable speech, normal affect, good mood, intact orientation, unremarkable thought process and content, and no delusions. PTSD symptoms included sleep disturbances, recurrent and intrusive distressing recollections of events, avoidance, feelings of detachment, hypervigilance, and exaggerated startle response. The VA examiner diagnosed PTSD and assigned a GAF score of 60, stating that the Veteran had moderate symptoms and functional impairment. The claims files also contain VA treatment records showing symptoms to include depressed mood, anxiety, blunting or numbing of emotions, sleep disturbances, recurrent nightmares, avoidance, and isolation. As noted above, the Veteran testified before a DRO in July 2010 as to his PTSD symptoms to include auditory and visual hallucinations, sleep disturbances, memory loss, avoidance of crowds, and panic attacks. The Veteran was afforded a VA examination in March 2013 in which he reported having a "pretty good" relationship with his wife of 26 years, being close to his extended family, attending church three times a week, and generally had friends at church. He reported symptoms to include decreased libido, isolation, sleep disturbances, avoidance of crowds, recurrent distressing dreams, avoidance, markedly diminished interest or participation in activities, feelings of detachment, irritability, difficulty concentrating, exaggerated startle response, depressed mood, anxiety, and chronic sleep impairment. Mental status examination showed speech was normal, attention and concentration was intact and normal thought content. The Veteran denied homicidal or suicidal ideation. The Veteran also denied having any hallucinations. The VA examiner diagnosed PTSD and assigned a GAF score of 65 and stated that the level of occupational and social impairment was best summarized by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board notes at this point that the VA examination in March 2013 is in compliance with the Board remand. Analysis After carefully reviewing the evidence of record, the Board concludes at no point has the occupational and social impairment from the Veteran's PTSD more nearly approximated the impairment required for a 50 percent rating. Under Diagnostic Code (DC) 9411, a 50 percent rating is warranted for 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 effective work and social relationships. The Board notes that the Court has held that the symptoms enumerated under the schedule for rating mental disorders 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence of record shows that VA examiners have repeatedly found that the Veteran's PTSD causes moderate symptoms and impairment, and the most recent VA examiner in March 2013 specifically used the language meant for a 30 percent rating when describing the Veteran's impairment. That is, the examiner stated that the Veteran's PTSD caused occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Moreover, the Veteran's PTSD caused symptoms and impairment to include some panic attacks, impairment of memory, and disturbances of motivation and mood. However, the other criteria outlined above were not met. In this regard, the Veteran reported having good relationships with his wife, family, and attending church where he also made friends. His speech, affect, judgment, and thinking were also normal. Accordingly, for the reasons above the Board finds the criteria for a rating in excess of 30 percent for PTSD are not met. The Board has considered the GAF scores assigned for the Veteran. GAF scores are based on 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 the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32. GAF scores ranging from 51 to 60 reflect 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). The GAF scores do not correlate to any specific rating. The Board has found the examination findings and the actual assessments of the Veteran's occupational and social functioning to be more probative than the GAF scores although the GAF scores do support the assigned 30 percent rating. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above, the Board has carefully considered the correspondence to VA from the Veteran and his representative. However, in this case, the Veteran has only asserted that his PTSD warrants an increased rating. Therefore, nothing therein shows entitlement to a higher rating. Consideration has also been given to assigning additional staged ratings; however, at no time has the service-connected PTSD warranted more than the assigned ratings. Fenderson, 12 Vet. App. 119. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b) (1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for the service-connected PTSD and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Finally, under certain circumstances, the claim for an increased rating for a service-connected disability includes a claim of entitlement to a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). However, such circumstances are not present here. The record reflects that the Veteran is only service-connected for PTSD, and he has stated that he is unemployed due to medical issues related to Agent Orange. See March 2008 VA examination report. Consequently, the Board finds there is no implicit claim for a TDIU. Rice v. Shinseki, 22 Vet. App. at 453. Therefore, for the reasons and bases expressed above, the Board concludes that the evidence in this case preponderates against the claim for an initial rating in excess of 30 percent and the benefit of the doubt rule is not for application. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to an initial rating in excess of 30 percent for PTSD is denied. ____________________________________________ MICHAEL PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs