Citation Nr: 1322760	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  10-26 315	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to a higher initial rating (evaluation) greater than 30 percent for Posttraumatic Stress Disorder (PTSD).


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, had active service from July 1984 until December 1984, and from October 2004 until April 2006.   
      
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied service connection for PTSD.  The Veteran appealed the denial of service connection and in a rating decision of February 2009 service connection was granted and an initial 30 percent rating was assigned.  The Veteran appealed the initial rating assigned in this decision, and the matter is now before the Board. 
 
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. 


FINDING OF FACT

Throughout the entire initial rating period, PTSD has been productive of homicidal ideation, sleep disturbance, anxiety, suspiciousness, difficulty concentrating, and panic attacks more than once a week resulting in occupational and social impairment, reduced reliability, and productivity.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 50 percent for PTSD have been met throughout the rating period on appeal.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).

This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the RO provided a VCAA notice letter to the Veteran in April 2007, prior to the initial adjudication of the initial rating claim.  The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO.  The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 

The Veteran's appeal arises from an appeal of 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.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims).  Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA.

Next, VA has a duty to assist a veteran in the development of the claim.  To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). 

In this case, service records have been obtained, as have records of VA treatment.  These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board.  The Veteran was afforded a VA examination in January 2009, during which the examiner was provided the Veteran's claims file for review, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations and opinions has been met.  38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion).

The Board notes that on his June 2010 VA Form 9, the Veteran stated that his PTSD symptoms had become worse since having been initially diagnosed.  The Veteran was initially diagnosed with PTSD in 2006; however, the last VA examination was in 2009.  The Veteran has not indicated that his symptoms became worse since his most recent VA examination.  Furthermore, a review of the Veteran's most recent PTSD treatment records from January 2010 shows that his symptoms have not significantly changed since his January 2009 VA examination.  The Board also notes that the Global Assessment of Functioning (GAF) scores, an indication of overall mental health, have improved since the 2009 VA examination.  Accordingly, an additional VA examination is not needed at this time in order to properly adjudicate the initial rating on appeal.

The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record.  The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified.  Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  If two 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 (2012).

At the outset, the Board notes that the Veteran's appeal for a higher rating for PTSD is an appeal from the initial assignment of a disability rating in February 2009.  When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  Here, as the evidence discussed below shows, the disability has not significantly changed over the course of the period on appeal and a uniform evaluation is warranted.

In a February 2009 rating decision, the Veteran was awarded service connection for PTSD and granted an initial evaluation of 30 percent effective December 13, 2006.  PTSD is evaluated under the General Rating Formula for Mental Disorders.  See 38 C.F.R. § 4.130, Diagnostic Code (DC or Code) 9411.  Under this general rating formula, a 30 percent rating is assigned 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, and recent events).  Id.

A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is assigned 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 work like setting); or the inability to establish and maintain effective relationships.  Id.

A 100 percent rating is assigned 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; or memory loss for the names of close relatives, own occupation, or own name.  Id.

In evaluating the Veteran's level of disability, the Board has considered the GAF scores as one component of the overall disability picture.  GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and is relevant in evaluating mental disability.  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) (DSM-IV).

In this case, GAF scores during the period on appeal range from 50 to 61.  Scores between 50 and 41 represent 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).  Id.  Where GAFs scores are between 51 and 61, this 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).  Id.  GAF scores of 61 to 70 reflect 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 well-functioning and with some meaningful relationships.  Id.

The VA Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders.  38 U.S.C. § 1155; see 38 U.S.C. § 501 (West 2002); 38 C.F.R. § 4.130.  By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive.  The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment").

The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV.  See 38 C.F.R. § 4.126 (2012).  If the evidence demonstrates that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned.  Mauerhan, 16 Vet. App. 436.

The Board has reviewed all of the lay and medical evidence in the claims folder and finds that the Veteran is competent to report many of the symptoms and impairments associated with his service-connected PTSD including symptoms which are observable such as poor sleep, feelings of anxiety, and feelings of panic.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation).  The Board has not discounted any lay evidence regarding the severity of the Veteran's PTSD merely because it is lay evidence or because it was reported by the Veteran.  See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history).  That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence).

The Veteran contends that his PTSD has been more than 30 percent disabling, with difficulty adapting to stressful circumstances, poor sleep, anxiety, anger, and panic attacks more than twice a week.  To the extent that these are observable symptoms, the Veteran's endorsements are competent.  Davidson, 581 F.3d 1313; Jandreau, 492 F.3d 1372.

After reviewing the entire claims file, the Board finds that throughout the period on appeal the Veteran's PTSD has more nearly approximated the criteria for a 50 percent rating for the entire rating period.  The Board finds that PTSD has been productive of homicidal ideation, sleep disturbance, anxiety, suspiciousness, difficulty concentrating, and panic attacks more than once a week resulting in occupational and social impairment, reduced reliability, and productivity.

On VA treatment in December 2006 the Veteran reported impulses to physically hurt people as a reaction to how people around him act at least once a day.  The Veteran denied suicidal ideation, but endorsed homicidal ideation and sleep for four to five hours a night.  He had disturbing memories of friends who had been killed during service.  The Veteran presented as guarded with good recall and fair memory.  The Veteran's affect was constricted and his GAF score was 53.

In April 2007, the Veteran presented to a VA psychologist with symptoms of suspicion and guardedness.  The Veteran's judgment was fair and there was no evidence of a thought disorder.  On VA treatment in June and July 2008, the Veteran reported increasing hypervigilance and irritability.  He had difficulty with relationships, in particular with his fiancé and children.

On VA examination in January 2009, the Veteran indicated difficulty with others at work, a preference to keep to himself, and general difficulty engaging in interpersonal relationships.  He felt suspicious of others and had difficulty concentrating.  Nightmares occurred at least once a week, and flashbacks occurred daily.  The Veteran's mood was anxious and his impulse control was fair to poor, however the Veteran's thought process was logical and goal-oriented.  The GAF score was 50.

As the foregoing evidence shows, the Veteran has reported some decrease in work efficiency, but has managed these periods by keeping to himself at work.  He has not reported any periods of inability to perform occupational tasks.  Nonetheless, there is evidence of sleep disturbance, anxiety, suspiciousness, homicidal ideation, constricted affect, and panic attacks. 

The Board finds that a 70 percent rating is not warranted.  The Veteran's judgment has remained essentially intact and he has not endorsed suicidal ideation.  While impulse control has been poor to fair, and the Veteran has had difficulty concentrating, his thought processes have been logical and goal-oriented and there has been no evidence of thought disorder.  The Veteran has not been subject to near-continuous panic or depression, and he has been well oriented.  The Board notes the Veteran's June 2010 report of panic attacks more than twice a week, a report which the Veteran is competent to make.  See Davidson, supra.  When accepted as true, such panic attacks confirm that the Veteran is not in a constant state of panic, but rather such a state comes and goes, further confirming that the overall disability picture is more closely reflected by the rating criteria for a 50 percent evaluation than that of a 70 percent evaluation.

Particularly informative of the Veteran's level of disability are GAF scores throughout the record ranging from 50 to 61, indicating a range of serious (high end of the range) to mild (low end of the range) symptoms or social and occupational impairment.  The Veteran's symptomatology in this case is consistent with the rating schedule criteria for a 50 percent evaluation on occupational and social impairment with reduced reliability and productivity.  While the reported homicidal ideation is a more serious symptom, the other symptomatology and overall degree of occupational and social impairment is like or similar to that listed in the 50 percent criteria.  Throughout the entire initial rating period, PTSD has been productive of sleep disturbance, anxiety, and suspiciousness that are contemplated even by the 30 percent rating criteria.  The PTSD has manifested in other symptoms contemplated by the 50 percent rating criteria, namely, difficulty concentrating (like or similar to difficulty in understanding complex commands or short term memory impairment or impaired abstract thinking) and panic attacks more than once a week.  

The PTSD symptoms the Veteran does experience, including homicidal ideation, do not result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood as contemplated by a 70 percent rating under DC 9411.  See 38 C.F.R. § 4.130.  Accordingly, resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's PTSD has been 50 percent disabling, but no higher, throughout the entire initial rating period on appeal.  38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has also considered whether referral for a rating based on extraschedular considerations is warranted.  An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 

Under Thun v. Peake, 22 Vet. App.  111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."

Third, if the rating schedular is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the VA Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. 

Turning to the first step of the extra-schedular analysis, the Board finds that the symptomatology and impairment caused by the service-connected PTSD during the period on appeal is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The schedular rating criteria at DC 9411 specifically provide for disability ratings based on a combination of history and clinical findings.  In this case, considering the lay and medical evidence, the Veteran's PTSD has more nearly approximated a manifestation of occupational and social impairment with reduced reliability and productivity due to the psychiatric symptomatology during the appeal period. 

The schedular rating criteria specifically include occupational and social impairment, as indicated by reduced reliability and productivity, and as caused by specific psychiatric symptoms.  The schedular rating criteria at 38 C.F.R. § 4.130 also include analogous symptoms that are "like or similar to" listed schedular rating criteria.  Mauerhan, at 442; see also 38 C.F.R. § 4.21.  Additionally, the Board has considered GAF scores, which are incorporated through the DSM-IV as part of the schedular rating criteria, as reflective of the degree of severity of psychiatric symptoms or overall functional impairment caused by PTSD.  For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's PTSD during the period on appeal, and referral for consideration of an extra-schedular evaluation is not warranted.

Finally, the record does not reveal that the Veteran is claiming that he is rendered unemployable by virtue of his PTSD, and he is still employed as a sanitation worker.  The record has not raised an implied claim for a total disability rating based on individual unemployability due to service-connected disabilities pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009); thus, no discussion or remand of such a claim is warranted. 


ORDER


An initial rating of 50 percent for PTSD is granted.



____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs