Citation Nr: 1322590 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-50 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) from April 21, 2008 to September 19, 2009. 2. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder since September 20, 2009. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2001 to January 2005 to include combat service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The issue of entitlement to an initial evaluation in excess of 50 percent for service connected PTSD since September 20, 2009 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT From April 21, 2009 to September 20, 2009, the Veteran's posttraumatic stress disorder was productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, but no higher, for the Veteran's PTSD from April 21, 2008 to September 19, 2009, were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As service connection, an initial rating, and an initial effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. The June 2008 VA examination report and the pertinent outpatient treatment records contain sufficiently specific clinical findings and informed discussions of the pertinent history and clinical features of the disability on appeal and are adequate for purposes of this appeal. The Veteran was provided the opportunity to present pertinent evidence and testimony, although he declined to attend a hearing. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Applicable Laws and Regulations Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (West 2002). When, however, the assignment of initial ratings is under consideration, the level of disability in all periods since the effective date of the grant of service connection must be taken into account. Fenderson v. West, 12 Vet. App. 119 (1998). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. PTSD is rated under Diagnostic Code 9411, which provides a 30 percent rating for occupational and social impairment with occasional decreases 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). 38 C.F.R. § 4.130. A 50 percent rating is warranted for PTSD 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 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 rating 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 work-like setting); and inability to establish and maintain effective relationships. Id. In evaluating psychiatric disorders, the Board is mindful that the term "such symptoms as" in 38 C.F.R. § 4.130 means that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). The Veteran was afforded a VA psychiatric examination in June 2008. He denied a history of suicide attempts, violence or assaultiveness. He reported enjoying golfing and spending time with his wife and son. Mental status examination revealed that he was clean, neat and appropriately dressed. Psychomotor activity and speech were unremarkable. His attitude toward the examiner was cooperative, friendly, relaxed and attentive. His affect was normal. His mood, however, was anxious, hopeless, depressed, fearful, and dysphoric. His attention was intact and he was oriented in all spheres. His thought process was unremarkable, and delusions and hallucinations were absent. The Veteran denied suicidal and homicidal ideation. His judgment was present as he understood the outcome of his behavior, and was of average intelligence, with insight that he had a problem. The Veteran did report problems sleeping which interfered with his daily activities. He also described nightmares, and thoughts about Iraq on awakening. The Veteran did not exhibit inappropriate behavior, and interpreted proverbs appropriately. The Veteran did describe obsessive/ritualistic behavior to include checking and re-checking doors and windows to ensure that they were locked, and made sure that certain objects were picked up and in their proper place. The Veteran indicated that he experienced panic attacks. For instance, he described experiencing severe anxiety when he missed a payment. The Veteran's impulse control was good, and he was able to maintain minimum personal hygiene. His memory was normal. After outlining the diagnostic criteria for posttraumatic stress disorder and quoting from the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV), the examiner diagnosed the appellant with the disorder. The appellant's symptoms were opined to be chronic and unremitting since his deployment to Iraq. The examiner opined that the Veteran was capable of managing his financial affairs. The examiner noted that the appellant was employed, and that he had not lost any time from work over the prior year. The Veteran felt that he possessed a level of maturity not present in his fellow young co-workers. The examiner assigned a global assessment of functioning score of 55, and opined that the Veteran's symptoms affected every aspect of his life including his work and family capacities. The examiner expected that as the Veteran aged and was confronted with changes and losses accompanying advancing age, his PTSD symptoms would persist and possibly worsen. At a general medical examination that same month the Veteran endorsed experiencing anxiety and sleep disturbances. VA treatment notes from September 9, 2009, indicate that a depression screening revealed a score indicative of severe depression. The Veteran also endorsed nightmares, intrusive thoughts, constantly being on guard, feeling numb or detached from others, activities or surroundings, experiencing disturbing memories, thoughts or images of the stressful experience, as well as dreams, and acting or feeling as if the experience were reoccurring. He indicated that he became very upset by things reminding him of the stressful incident, and that he experienced physical reactions to such reminders. He endorsed avoiding thinking or talking about the stressful experience, and activities or situations that reminded him of it. He indicated that he had difficulty remembering important parts of the stressful experience, and that he had a loss of interest in activities once enjoyed, and felt distant and cut off from others. He indicated that he felt emotionally numb or unable to love those close to him, that he sensed a foreshortened future, had difficulty falling or staying asleep, was irritable, had angry outbursts, had difficulty concentrating, and was jumpy and super alert. Other VA treatment notes from September 2009, indicate that the Veteran felt extremely anxious, and significantly depressed. He reported a major change in his appetite, anger problems, irritability, frequent nightmares, awful memories, significant sleep problems, low self-esteem, feeling hopeless and alone, significant concentration problems, and having too little energy. The appellant reported blaming himself for the deaths of Marines who had once been under his direction. The Veteran denied suicidal ideation, homicidal ideation, auditory and visual hallucinations, and mania. He had no intent to hurt himself or others. Mental status examination revealed that the Veteran was cooperative, calm, alert, oriented, and that he had both good insight and judgment. His flow of thought was linear, and without delusions, hallucinations, or suicidal or homicidal ideation. A global assessment of functioning score of 65 was assigned. An October 1, 2009, letter from Steve Wysocki, Ph.D., indicated that he began treating the Veteran on September 19, 2009, for his PTSD symptoms. It was indicated that he had presented with anxiety, panic attacks, depression, irritability, disturbed sleep, and recurring dreams of losing a buddy during a terrorist attack. The Veteran was reportedly explosive in his relationships and felt confused by his strong reactions. He struggled with guilt over the loss of his men who were in a fire fight when he was not there. He also experienced shortness of breath. The Board has considered the Veteran's lay statements that his PTSD disability is worse than currently evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disability according to the appropriate diagnostic codes. Competent evidence concerning the nature and extent of the Veteran's PTSD disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings, as provided in the examination reports and the clinical records, directly address the criteria under which posttraumatic stress disorder is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. Review of the record suggests that the Veteran's relationships are currently limited to his family. The Veteran's psychiatric symptoms include sleep problems, disturbing dreams, flashbacks, depression, anxiety, irritability and hypervigilance. The most recent full examination revealed a global assessment of functioning score of 55 which is indicative of moderate symptoms. See DSM-IV. The Board finds the evidence sufficient to support a 50 percent disability rating and no higher for the Veteran's PTSD. According to the examination report and treatment records, the Veteran has impairment due to such symptoms as hypervigilance, depression, anxiety, and poor sleep. He has not indicated that he has friends or interests outside his immediate family. Finally, he has been assigned a GAF score of 55, indicative of moderate symptoms. In light of 38 C.F.R. §§ 4.3 and 4.7, the Board finds a 50 percent rating is warranted for the Veteran's PTSD. The Board, however, finds that the preponderance of the evidence to be against entitlement to a 70 percent rating. While one examiner noted complaints of severe depression in September 2009, the Veteran has denied homicidal or suicidal thoughts. He has had no legal difficulties. He has denied any obsessive or compulsive rituals which interfere with routine activities, and his speech has not been intermittently illogical, obscure, or irrelevant at any time. Indeed, the evidence shows that the Veteran's speech was consistently normal. He did not report near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. He remains capable of handling finances, and there is no documented evidence of violence during the term addressed. He was alert and fully oriented at all times of record, with no bouts of delusional or psychotic thinking. His personal appearance and hygiene have also been within normal limits. Although he has denied significant social interaction, he is married with a child. Finally, although he has been assigned a global assessment of functioning score of 55, that score is indicative of moderate impairment, and he has generally shown a high level of functionality. Overall, the Board finds evidentiary support for a 50 percent rating from April 21, 2008 to September 19, 2009, but the preponderance of the evidence is against entitlement to a higher rating for the PTSD during this term. Additionally, the Board has also considered, and as necessary, applied appropriate staged ratings. In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. Step one, is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, then no referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating is required. If the schedular criteria do not contemplate the claimant's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the claimant's disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. If the disability picture meets the second step, 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. Regarding the first step of Thun, the Board finds that the rating criteria reasonably describe the Veteran's PTSD symptomatology. In other words, the Veteran has described symptomatology regarding his PTSD that includes anxiety, depression and difficulty sleeping. The Veteran, however, does not experience symptomatology not contemplated by the Rating Schedule. As the rating criteria reasonably describe the disability and symptomatology, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial rating of 50 percent for service connected PTSD from April 21, 2008, to September 19, 2009, but no higher, is granted subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran was afforded a VA psychological examination in December 2012. At that examination the appellant's PTSD was reviewed and he was assessed as having a GAF score of 65 indicative of symptoms consistent with mild difficulty in social and occupational functioning, but generally functioning well with some meaningful interpersonal relationships. The examiner indicated that the Veteran had 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. Significantly, at the examination the Veteran reported that he was treated by a private counselor through work once a month in individual therapy. He also indicated that he was in couples therapy with his spouse. In addition, as discussed above, Dr. Wysocki wrote in October 2009 that he had treated the Veteran starting September 19, 2009. As such, it appears that there are outstanding private treatment records regarding the Veteran's mental health that have been identified by letter and in his most recent examination, but have not otherwise been associated with the claims folder. A remand is therefore necessary to request that the Veteran complete the necessary authorization forms, and attempt to associate all identified outstanding mental health treatment records with the claims folder. Upon receipt of outstanding treatment records, an addendum VA psychiatric opinion regarding the severity of the Veteran's psychiatric disability should be obtained. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. All of the Veteran's private and VA medical records not already included in the claims file from September 2009 through the present should be obtained. This includes treatment records from Dr. Wysocki. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Following the receipt of any outstanding treatment records, the appellant should be scheduled for a VA psychiatric examination to determine the current severity of the Veteran's posttraumatic stress disorder. The examiner must address the nature and extent of any social and industrial impairment resulting from the Veteran's posttraumatic stress disorder, and a global assessment of functioning score with an explanation of the significance of the score assigned. The examiner must be provided access to the Veteran's claims folder, Virtual VA file and a copy of this decision. 3. The Veteran should be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). 4. Following any additional indicated development, the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs