Citation Nr: 1323098 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-46 783A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial evaluation for posttraumatic stress disorder (PTSD) in excess of 30 percent, prior to October 12, 2009, to include an effective date for a 70 percent initial evaluation prior to October 12, 2009. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from June 1995 to February 1998. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The rating decision granted service connection for PTSD, with a 30 percent evaluation, effective July 18, 2006. During the pendency of the appeal, a February 2012 rating decision assigned a 70 percent evaluation, effective October 12, 2009. The Board is aware that a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). However, in this case the Veteran only contends that his PTSD warrants a 70 percent evaluation prior to October 12, 2009. During the March 2013 hearing before the undersigned Veterans Law Judge, the Veteran agreed through his representative that he was satisfied with the 70 percent evaluation effective from October 12, 2009. He stated that the 70 percent evaluation should be effective the original date of the award of service connection for PTSD, July 18, 2006. See March 2013 Hearing Transcript, at pp. 2-3. FINDING OF FACT The competent medical, and competent and credible lay, evidence of record shows that prior to October 12, 2009, the Veteran's PTSD resulted in occupational and social impairment, with deficiencies in work, family relations, judgment and mood, due to such symptoms as obsessional rituals which interfered with routine activities; difficulty in adapting to stressful circumstances (including work or a worklike setting); impaired impulse control; and inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for a 70 percent initial evaluation, but not higher, for PTSD from July 18, 2006, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). This appeal arises from the Veteran's disagreement with the initial evaluation following a grant of service connection. Courts have held that 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). VA did advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. A February 2012 supplemental statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant law concerning the evaluation of PTSD. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an increased evaluation for PTSD. With regard to the duty to assist, the claim's file and Virtual VA eFolder contain the Veteran's service treatment records, VA medical records, Vet Center records, private medical records, VA examination reports and the transcript of a March 2013 hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. Prior to the October 12, 2009, effective date for the Veteran's 70 percent evaluation for PTSD, a VA examination for PTSD was conducted in November 2008. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The November 2008 VA examination report indicates that the examiner reviewed some VA and Vet Center medical records, but does not state that the examiner reviewed the Veteran's claims file. Nevertheless, the evaluation was to assess the current level of the Veteran's disability. The examiner considered the Veteran's medical history, including his lay reports of his symptomatology; described the Veteran's disability in sufficient detail; and fully described the functional effects caused by the Veteran's PTSD. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's PTSD is evaluated under Diagnostic Code 9411. The Rating Schedule provides that a 50 percent evaluation for PTSD is warranted by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Diagnostic Code 9411. A 70 percent evaluation for PTSD 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); and inability to establish and maintain effective relationships. Diagnostic Code 9411. A 100 percent evaluation for anxiety disorder 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; and memory loss for names of close relatives, own occupation, or own name. Diagnostic Code 9411. 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). The Federal Circuit recently addressed how to apply the criteria in 38 C.F.R. § 4.130. In affirming a 70 percent evaluation for PTSD, the Federal Circuit stated that "[e]ntitlement to a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013). Based on a thorough review of the record, the Board finds that the evidence supports a 70 percent initial evaluation for PTSD from July 18, 2006. The preponderance of the evidence is against an initial evaluation in excess of 70 percent for PTSD from July 18, 2006. An October 2007 Vet Center Intake report relates that the Veteran was not trusting, had only one friend, and tended to isolate so he worked at home where he felt safe and in control. The Veteran was on sleeping aids, thrashed his bed, talked in his sleep, could not stand crowds and could not handle traffic. He had flashbacks and panic attacks. He did not make friends, and did not like people or crowded places. He had developed a phobia about putting his head under water and had nightmares about it. The Axis I diagnosis was PTSD sexual victim as adult, while on active duty. The Axis V Global Assessment of Functioning (GAF) score was 45 for the past year. A November 2008 Vet Center Intake report provides that the Veteran presented as distant and aloof. The Veteran married his high school girlfriend during high school and was still married to her. He was a CAD designer. He had 7 jobs in the prior 8 years and stated that he typically did not get along with coworkers and preferred to stay to himself. He had an 8-year old son and a 10-year old daughter. He did activities because his family enjoyed them but did not particularly enjoy them himself. The Veteran reported that he thrashed around in bed, talked in his sleep and could not stand crowds or traffic. He said that he did not make friends and did not like people or crowded places. The Veteran exhibited flat affect and certainly showed no emotion or desire to be close to others. On mental status examination, the Veteran's manner was suspicious, defensive and anxious. His speech was rapid and pressured. His affect was flat and blunted, his motor activity was tense and his judgment was poor. The Veteran had sleep disturbance and a low energy level. His affect was largely blunted. He was angry, frustrated and appeared closed off from close feelings towards other, including family. He was oriented times 3. The Veteran took Ambien to sleep, and Prazosin for HBP/calming/sleep. The Axis I diagnosis was PTSD, chronic, post-assault. The Axis V GAF score was 51. The report of a November 2008 VA examination provides that the Veteran's current symptoms were anger, diminished participation in significant activities, feelings of detachment, trouble sleeping and nightmares about the active duty personal assault. He had a recurring dream when he fought and his head was covered and he could not breathe. He had developed a fear of swimming because he felt people might hold him underwater. He showered 2 or 3 times a day because he felt dirty. He had to shower after sex because sex made him feel dirty. He had recurrent flashbacks of the sexual trauma. The symptoms occurred constantly. The effect of the symptoms on daily functioning was that he worked from home. He said that gradually he was spending more time with his horrible memories of the assault than working. He had trouble sleeping since 1996. Medication helped him sleep but with their help he only slept 6 hours a night. Current treatment included two medications, and psychotherapy within the past month as often as twice a month. Since the Veteran's PTSD developed, he felt angry most of the time, had nightmares and recurrent flashbacks about the assault, and could not have his head covered. He became isolative and did not socialize much. As a result, he chose to work from home, minimizing his interaction with others this way. He did not make new friends, avoided crowds and could not have his head under water because it triggered flashbacks of the assault. He had been self-employed as a designer for two years, working from home and taking contracts. The Veteran reexperienced the traumatic event with recurrent recollections. He had persistent symptoms of flashbacks, recurrent distressing and intrusive thoughts of the event, and recurrent distressing dreams of the event. He had nightmares and distressing agitated dreams. One that recurred often involved him fighting people around him and his head was covered and he could not breathe. He persistently felt as though the traumatic event was recurring. During flashbacks, he felt transported back to the scene of the assault. He had persistent intense distress at exposure to similar events. He felt anxious, uncomfortable and angry. Physiological reactivity to cues that symbolized an aspect of the event was persistent, such as sweating, anxiety, and feeling sick and almost nauseous. The Veteran demonstrated avoidance of stimuli associated with the trauma with efforts to avoid thoughts, feelings or conversations associated with the trauma. Symptoms were persistent. He did not talk about the event. He did not play with his son, and any violent sport brought to his mind the scene of the assault. Efforts to avoid activities, places or people that aroused recollections of the event were persistent. Groups of people, any blanket (because the assailants threw a blanket over his head) and wrestling brought back the horrible thoughts related to the assault. An inability to recall an important aspect of the trauma was persistent. Markedly diminished interest or participation in significant activities was persistent. He had been withdrawn. He used to enjoy swimming but since the assault he could not have his head underwater. He left the house only when he had to. He occasionally went bowling but left when there were more than 4 people. Feelings of detachment or estrangement from others was persistent. He often felt unconcerned and detached. The Veteran experienced symptoms of increased arousal due to the traumatic event. Irritability or outburst of anger was persistent. He became easily irritable and angry, mostly due to intrusive thoughts related to the event. Exaggerated startle response was persistent. He startled when people approached him or touched him. Hypervigilance was persistent when he was among strangers. On mental status examination, the Veteran's appearance and hygiene were appropriate. Affect and mood were normal, but at times irritable, almost angry, possibly due to the fact that he had to give information about the event. Communication, speech and concentration were normal. He had panic attacks intermittently, more than once a week. They were characterized by shortness of breath, increased heart rate and anxiety. The Veteran had no history of delusions or hallucination. Impaired judgment and abstract thinking were absent. Memory was normal, and suicidal and homicidal ideation were absent. Obsessional rituals were present, not severe enough to interfere with routine activities. He was overly concerned about washing his body, but took only 2 showers a day and one shower when he had sex. He still ate his food in an odd manner, eating each food in different plates so they did not touch. The Axis I diagnosis was PTSD. The Axis V GAF score was 55. The Veteran was currently working from home but had gradually found it more difficult to concentrate on his work. He was in counseling which he said seemed to help but his symptoms had become stronger and he spent more time attempting to control his thoughts and memories of the assault. The examiner summarized that the Veteran's psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent ability to perform occupational tasks, although generally the Veteran was functioning satisfactorily with routine behavior, self-care and normal conversation. The symptoms present were anxiety, panic attacks weekly or less often, episodes of anger, and frequent disturbing dreams which lead to hyper arousal and more struggles with his memories of the assault. In an October 2009 letter written as a private therapist, the November 2008 Vet Center counselor stated that he continued to treat the Veteran. He had been unable to see the Veteran from late May until early September, and the Veteran reported that as a result he was not doing well. The Veteran said that he was isolating more, was irritable, and was responding to his wife and children out of anger. His sleep had worsened and he was engaging in more self medication in order to sleep. Without counseling, there had been no outlet to relieve stress and this had put a strain on his ability to complete tasks at work. He lost his focus when working on projects. The Axis I diagnosis was PTSD, chronic and severe, delayed onset. The Axis V GAF score was 41 (due to decompensation in work abilities and current unavailability of counseling). During the March 2013 hearing, the Veteran testified that prior to October 12, 2009, he got into two fights. In the spring of 2009, he got into a physical fight with his father. About nine months earlier, he nearly got into a fight with his VVA representative. He did not fight the man because the man was too old. The Board finds that the foregoing evidence supports entitlement to a 70 percent evaluation for the Veteran's PTSD, from July 18, 2006. The Board acknowledges that the November 2008 VA examination report describes the Veteran's symptoms with the criteria for a 30 percent evaluation. Nevertheless, the evidence discussed above shows that the Veteran's PTSD resulted in occupational and social impairment, with deficiencies in work, family relations, judgment and mood, due to such symptoms as obsessional rituals which interfered with routine activities; difficulty in adapting to stressful circumstances (including work or a worklike setting); impaired impulse control; and inability to establish and maintain effective relationships. Diagnostic Code 9411. The Veteran's GAF scores also support an evaluation of 70 percent. By definition, the GAF scale considers psychological, social and occupational functioning on a hypothetical continuum of mental health-illness, and does not include impairment in functioning due to physical (or environmental) limitations. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) [hereinafter DSM- IV]; 38 C.F.R. § 4.125 (2012). According to the GAF Scale, a score between 51 and 60 represents 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) (emphasis in original). A score between 41 and 50 represents 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) (emphasis in original). DSM-IV at 32; 38 C.F.R. § 4.125. Thus, when taken together the Veteran's GAF scores (45, 55, 51 and 48, chronologically) show that his PTSD primarily resulted in severe symptoms during the relevant period. The Board finds it significant that the Veteran's GAF scores of 55 and 51 were balanced by scores of 45 and 48. Taken together, these scores show that the Veteran's PTSD primarily resulted in severe symptoms prior to October 12, 2009. The Board again recognizes that during the March 2013 hearing the Veteran only contended that his PTSD warranted a 70 percent evaluation prior to October 12, 2009. He stated that he was satisfied with the 70 percent evaluation effective from October 12, 2009. In this regard, the Board finds that the preponderance of the evidence is against entitlement to a 100 percent initial evaluation for PTSD at any time during the appeal period. The medical evidence shows that the Veteran does not have gross impairment in thought processes or communication, persistent delusions or hallucinations, persistent danger of hurting self or others, or other similar manifestations which would support a 100 percent evaluation under Diagnostic Code 9413. See Mauerhan, supra. Additionally, the record contains no indication that the rating criteria are inadequate to rate the Veteran's disability. The discussion above reflects that the symptoms of the Veteran's PTSD are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the Veteran's PTSD resulted in such symptoms as obsessional rituals, difficulty in adapting to stressful circumstances (including work or a worklike setting), impaired impulse control, and inability to establish and maintain effective relationships. Diagnostic Code 9411 provides a rating based on these symptoms. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral for extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008). In sum, the medical evidence demonstrates that the Veteran is entitled to a 70 percent initial evaluation for PTSD, from July 18, 2006. As the preponderance of the evidence is against entitlement to an initial evaluation in excess of 70 percent for PTSD at any time during the appeal period, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER A 70 percent initial evaluation, but not higher, for PTSD from July 18, 2006, is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs