Citation Nr: 1322549 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 10-48 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) from July 1, 2009 to April 9, 2013. 2. Entitlement to an evaluation in excess of 50 percent for PTSD since April 9, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served from April 1970 to July 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Board decided the issues of entitlement to higher ratings for PTSD prior to July 1, 2009, and remanded the matter of entitlement to a disability rating in excess of 30 percent since July 1, 2009 to the agency of original jurisdiction (AOJ) for additional development, which has been completed. In a May 2013 rating decision, the AOJ awarded a disability evaluation of 50 percent for PTSD, effective April 9, 2013. As the award does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In December 2012, the Veteran's representative raised a claim of clear and unmistakable error in a July 2010 Board decision denying entitlement to service connection for a heart murmur; alternatively, claimed that new and material evidence has been submitted that is sufficient to reopen the claim of entitlement to service connection for a heart murmur, secondary to service-connected PTSD; and claimed entitlement to service connection for hypertension secondary to PTSD. Although the claims were referred to the agency of original jurisdiction (AOJ) in the February 2013 remand, they have not been adjudicated. Thus, they are again referred to the AOJ for disposition. While receiving VA treatment in February 2013, the Veteran stated that service connection for PTSD should have been awarded from the date of his discharge from active service. The statement constitutes an informal claim for an earlier effective date for the award of service connection for PTSD. This claim is also referred to the AOJ. FINDINGS OF FACT 1. From July 1, 2009, to April 9, 2013, PTSD was manifested by a level of impairment most closely approximating 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, panic attacks weekly or less often, chronic sleep impairment, and mild memory loss. 2. Since April 9, 2013, PTSD is manifested by a level of impairment most closely approximating occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for PTSD from July 1, 2009, to April 9, 2013, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.19, 4.126, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an evaluation in excess of 50 percent for PTSD since April 9, 2013, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.19, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The appeal arises from the Veteran's disagreement with the initial evaluations assigned 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). All available service treatment records, Social Security Administration records, private treatment records and VA treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not identified any outstanding private or VA treatment records that are pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA examinations were conducted in July 2009, June 2011, and April 2013. In each case, the evidence of record was reviewed and a history was elicited from the Veteran. The reports stated the current level of severity of the Veteran's mental health symptoms, and are adequate for purposes of rating his disability. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There was substantial compliance with the February 2013 remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). There is no indication in the record that any additional evidence, relevant to the issues 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, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Legal Criteria Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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 determining the present level of a disability for any increased evaluation claim, staged ratings must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When evaluating a mental disorder, the rating is to be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment must be considered, but a rating may not be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126. Age may not be considered as a factor in evaluating a service-connected disability. 38 C.F.R. § 4.19. A 30 percent disability rating is assigned for PTSD 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). 38 C.F.R. § 4.130, DC 9411. A 50 percent evaluation is warranted if the evidence establishes 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted if the evidence establishes 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 if the evidence establishes there is 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 oneself 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 psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 1994). A GAF score of 51 to 60 is illustrative of 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 of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). From July 1, 2009, to April 9, 2013 On July 1, 2009, the Veteran underwent a VA mental disorders examination. His history of claustrophobia, anxiety and panic attacks after becoming stuck in an aircraft air intake during his period of active service was noted and discussed. He denied psychiatric hospitalization or psychiatric medication, suicidal ideation and homicidal ideation. There was no history of substance abuse or legal difficulties. He was not receiving regular mental health treatment. His wife of almost 33 years was present during the examination. The Veteran reported a "good" relationship with their adult daughter. He no longer worked because of back pain; however, he was able to fulfill his responsibilities while he was working. The Veteran's primary symptoms included claustrophobia and panic. He was anxious during the interview, and requested that the door to the examination room remain open. His speech, insight and judgment were intact and unremarkable. The Veteran reported "only occasional forgetfulness." His mood and affect were initially guarded, but the Veteran became more comfortable during the interview. Cognitive function testing was normal. He denied hallucinations, paranoia, obsessive behavior, and other similar symptoms. His mood was overall "not bad" but he did become anxious when thinking about his trauma. His activities of daily living were largely unaffected; however, when riding in a car, the Veteran had to drive or ride as a passenger in the front seat. He could not use an elevator, fly in a plane, or ride in the back seat of a car. In order to get to the interview, he had used the stairs to get to the 8th floor. He had no chronic depressive symptoms except some insomnia and fatigue. The Veteran stated that he "made the best of things." He had "occasional" panic attacks. Exposure to certain stimuli caused flashbacks. These episodes occurred on an "occasional" basis; however, the Veteran reported symptoms of flashback and panic during the interview. He had distressing thoughts every day, and nightmares 1 to 2 times a month. He avoided activities and conversations that would cause him to recall his trauma. He had feelings of detachment from others, avoided crowds, and displayed other symptoms of hyperarousal, such as hypervigilance and hyperstartle. The examiner diagnosed PTSD and assigned a GAF score of 50, indicative of serious symptoms. A private mental health evaluation dated in November 2010 documents a long history of anxiety, claustrophobia and recurrent flashbacks. The Veteran avoided all triggers, such as elevators and tunnels. He also stated that he had "poor concentration, irritability, poor sleep" which caused "significant distress and [impairment], inability to function ..." The Veteran denied suicidal ideation, psychosis and mania. Recurrent flashbacks, intrusive thoughts, nightmares, and anxiety continued. Although "frequent irritability and motivation" had improved, the Veteran often felt "overwhelmed." Apart from recurrent flashbacks and anxiety, the Veteran's mental status examination was essentially normal. His attention span and concentration were described as "fair." Judgment and insight were intact. The examiner diagnosed PTSD and assigned a GAF score of "55-56." The physician recommended medication and group treatment at a VA facility, which the Veteran declined, stating that he wanted to try counseling first. The Veteran began receiving VA mental health treatment in December 2010. Current symptoms included avoidance of triggers, such as elevators and fast-food drive-through windows, nightmares, anxiety, and subjective loss of concentration and memory. His mental status examination was otherwise normal. A GAF score of 51 was assigned. In January 2011, the Veteran stated to his VA treatment provider that he tried to avoid situations that would trigger his anxiety as much as possible. Despite this, he had insomnia, nightmares, and fairly constant anxiety. He experienced "high anxiety" when confronted with a reminder of his military trauma. He had a good relationship with his family. He was unemployed as a result of a nonservice-connected back disorder. He had no legal difficulties. A GAF score of 52 was assigned. In February 2011, the Veteran indicated that he was angry about the rating assigned to his service-connected PTSD, and felt that service connection should have been awarded many years prior. His treatment provider stated that the Veteran had trouble with anger and anxiety, although the Veteran declined group therapy. In March 2011, the Veteran was "mildly hostile at times." He felt that counseling had not helped him. He continued to decline group therapy, medication, or a residential PTSD program. He wanted to be taught coping skills. He had intrusive thoughts and nightmares about his military trauma. These occurred on a regular basis. The Veteran stated that he was having a bad day, and left the session early. Similar symptoms were noted in clinical notes dated in May 2011 and June 2011. In July 2011, the Veteran stated that he had increased anxiety during his sessions, because the hall was gray which reminded him of being stuck in the jet intake during service. He requested that the door be kept open as a result of his claustrophobia. The Veteran underwent another VA examination in June 2011. He was receiving VA mental health treatment, but refused psychiatric medication. He reported an episode of "road rage" on his way to the examination. His relationship with his wife was stable. His current psychosocial functional status was "about the same level as the [July 2009 VA examination]." Although the Veteran maintained that his affect was "blunted," the examiner described it as variable. There was no change in mental status from the previous examination. The Veteran did report a "poor quality of sleep with only 4 hours total at a time." He had at least one panic attack per week, triggered by such activities as going through a fast-food drive through, or having to be the passenger in a car instead of the driver. In December 2010, a panic attack was triggered by a need to obtain a head CT scan. The Veteran related that while he was employed as a substance abuse counselor, he could not get onto elevators with clients. This was both distressing and disruptive to his work. He reported some short-term memory problems, such as recently forgetting to pick up his wife and difficulty remembering names. Flashbacks occurred almost every day, including during the interview. The examiner found that the Veteran's level of functioning was essentially unchanged from his 2009 VA examination, and assigned a GAF score of 50. VA treatment records dated throughout 2011 and 2012 show that his baseline symptoms were essentially unchanged. The Veteran continued to report chronic anxiety and claustrophobia, as well as irritability with a neighbor and anger about the length of time necessary to adjudicate the present appeal. He continued to request that the door remain open during his therapy sessions. He had instructed his wife to cremate his body upon his death and scatter his ashes in the open, as he did could not bear to think of his body in a coffin. He did not think his symptoms would ever go away. In December 2012, the Veteran's representative stated that the Veteran "cannot be in an office with a closed door," that he "obsessively counts steps and plans exits ... fled an MRI for his back" and is "prone to panic attacks as the MRI incident shows." The Veteran's symptoms, including flashbacks, nightmares, and other symptoms consistent with a fairly continuous state of anxiety, such as claustrophobia, are certainly limiting. However, there is no indication that these symptoms were analogous to occupational and social impairment with reduced reliability and productivity from July 1, 2009, to April 9, 2013. The Veteran had a good relationship with his wife of 33 years, as well as his daughter and grandchild. He was unemployed as a result of a nonservice-connected disorder; there is no indication that his mental health symptoms played a role in his decision to leave the workforce. The objective evidence does not reflect any actual occupational impairment. The Veteran also reported feeling very uncomfortable in crowds, traffic jams, and other enclosed spaces such as elevators. In fact, he had gone to great lengths to avoid riding in an elevator. However, there is no indication that these symptoms impacted the Veteran's social functioning. He apparently continued to drive and interact with other members of the community, and his inability to ride in elevators or go into enclosed spaces does not appear to have otherwise limited his ability to engage with others. The nature of the Veteran's symptoms is reflected in the assigned GAF scores. Although the July 2009 VA examiner assigned a GAF of 50, indicative of serious symptomatology, the other GAF scores recorded during this period of time range between 51 and 56, which indicate moderate symptoms. Although the Veteran's representative reported that the Veteran engaged in obsessive rituals and was entirely unable to remain in a room with a closed door, these symptoms are not reflected in the clinical notes of record, nor were they reported on subsequent VA examination in April 2013. Thus, these statements are not illustrative of the Veteran's overall clinical picture. From July 1, 2009, to April 9, 2013, the evidence reflects symptoms most closely approximating 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, panic attacks weekly or less often, chronic sleep impairment, and mild memory loss. There is no indication that the Veteran's symptomatology approximated reduced reliability and productivity due to anxiety, claustrophobia, or any other mental health pathology. Thus, a disability evaluation in excess of 30 percent for PTSD from July 1, 2009, to April 9, 2013, is not warranted. Since April 9, 2013 On April 9, 2013, the Veteran underwent a VA mental disorders examination. The examiner diagnosed PTSD, dysthymic disorder, generalized anxiety disorder, obsessive-compulsive disorder, and panic disorder, and stated that it was not possible to differentiate which symptoms were attributable to each diagnosis. In such a case, all psychiatric symptomatology shall be considered in determining the appropriate rating for the service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). During the diagnostic interview, the Veteran stated that he still had a good relationship with his wife. He was able to share his feelings about his military trauma with her and she was very supportive of him. He also had a good relationship with his daughter, father and siblings. However, he did not have any friends, and preferred to be alone. There were certain limitations on his activities, particularly those related to travel. The Veteran always had to have an "escape route," no matter where he was. He continued to receive VA mental health treatment, but refused medications. There was no history of substance abuse or legal difficulties. His symptoms included depressed mood; anxiety; paranoia; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impairment of short- and long-term memory; memory loss for names of close relatives, own occupation, or own name; difficulty understanding complex commands; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. During the interview, the Veteran required that the door remain open. Intrusive thoughts about his military trauma occurred every day, and nightmares occurred almost every night. He did not venture far from home on his own, and felt it necessary to be accompanied by his wife. He did have some financial strain. The Veteran displayed claustrophobia secondary to his PTSD. He felt that he had been "deteriorating," and he did not know how to stop this process. The examiner found that the Veteran's symptoms were productive of reduced reliability and productivity. It was impossible to determine current occupational functioning since the Veteran did not have a job. However, were the Veteran to attempt to return to the workforce, he would "experience a severe level of occupational impairment due to severe symptoms of PTSD." There was "mild" impairment in family relationships and "severe" impairment in social relationships, with no friends. There was "severe impairment in thinking with severe memory loss." There was "moderate" impairment in mood. The Veteran had difficulty completing tasks at home as a result of his depression. A GAF score of 45, indicative of serious symptoms, was assigned. Since April 9, 2013, the Veteran's PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. The criteria for a disability rating in excess of 70 percent are not met, as there are no symptoms analogous to severe occupational and social impairment with deficiencies in most areas. Although the Veteran reported having no friends, he has good relationships with almost all of his immediate family members, and stays in close contact with them. His wife is supportive of him. Although his symptoms are limiting, he is able to engage in activities of daily living, with certain accommodations for his symptoms. Although the examiner described "severe impairment in thinking with severe memory loss," this particular finding is not supported by adequate rationale, nor is it reasonably based on the evidence of record. There is no indication in the examination report that she evaluated the Veteran's cognitive abilities; nor did the Veteran state that he had a history of severe memory loss. There is similarly no justification for the notation that the Veteran's symptoms are productive of such profound memory loss that he forgets his own name, occupation, or the names of close family members. The contemporaneous VA clinical notes do not reflect any sort of cognitive disorder or memory loss that can be characterized as profound or severe. The examiner also found that the Veteran's PTSD results in "severe occupational impairment," but did not provide any rationale for this conclusion. Supporting evidence for such a conclusion is particularly important in light of the fact that the examiner also concluded that it was impossible to determine the current level of occupational impairment. Thus, the finding as to the level of severity of the Veteran's occupational impairment appears to be based entirely upon speculation. Since April 9, 2013 the evidence reflects symptoms most closely approximating occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. A disability evaluation in excess of 50 percent for PTSD since April 9, 2013, is not warranted. Additional Considerations The above determinations are based upon consideration of applicable rating provisions. There is no showing that the Veteran's PTSD has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1).The Veteran was has not been hospitalized for his symptoms, nor is there evidence of marked interference with employability. The Veteran is retired as a result of a nonservice-connected back disorder. The symptoms of the Veteran's PTSD are accurately reflected by the schedular criteria. There is no evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, and referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16. The preponderance of the evidence is against a rating in excess of 30 percent for PTSD from July 1, 2009 to April 9, 2013, and against a rating in excess of 50 percent for PTSD from April 9, 2013. There is no doubt to be resolved and increased ratings are not warranted. ORDER Entitlement to an evaluation of 30 percent for PTSD from July 1, 2009, to April 9, 2013, is denied. Entitlement to an evaluation in excess of 50 percent for PTSD since April 9, 2013 is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs