Citation Nr: 1323233 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-46 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active military service from September 1968 to May 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania. This rating decision granted service connection for PTSD with an evaluation of 30 percent effective November 21, 2006. A December 2007 rating decision continued the 30 percent evaluation. FINDING OF FACT The Veteran's PTSD is manifested throughout the appeal period by no more than occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, depressed mood, chronic sleep impairment, panic attacks more than once a week, impairment of short term memory, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for an initial evaluation of 50 percent for PTSD have been met; the criteria for an initial evaluation in excess of 50 percent have not been met at any point during the appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (Code) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A pre-adjudicatory January 2007 letter provided notice on the "downstream" elements of disability evaluations and effective dates. The Veteran has not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records have been secured. He was afforded VA examinations in March 2007 and August 2008; those examinations are reported in greater detail below, and are cumulatively adequate for rating purposes, as the reports contain the information necessary for consideration of the applicable criteria. In particular, the 2008 examiner clearly reviewed the Veteran's claims file, provided a thorough examination of the Veteran, and provided his opinion with a clear explanation as to the severity of the Veteran's PTSD. Thus, the Board finds that the examination reports, taken together, are adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not advised VA of additional, relevant evidence that is not of record. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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 Fenderson v. West, 12 Vet App 119, 125-26 (1999), the U.S. Court of Appeals for Veterans Claims (Court) distinguished appeals involving a Veteran's disagreement with the initial rating assigned at the time a disability is service-connected. Accordingly, where the question for consideration is the propriety of the initial rating assigned, as here, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged ratings" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, in determining the appropriate disability rating, the Board must consider whether the case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's PTSD has been assigned an initial evaluation of 30 percent from November 21, 2006, pursuant to 38 C.F.R. § 4.130, Code 9411. Under this Code, a 30 percent evaluation is warranted 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). A 50 percent evaluation is warranted 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 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. 38 C.F.R. § 4.130, Code 9411. A 70 percent evaluation 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 denotes 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 functioning pretty well, has some meaningful interpersonal relationships. A GAF score of 51-60 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). A GAF score of 41-50 indicates 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). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Following review of the evidence of record, the Board concludes that an evaluation of 50 percent, but no more, is warranted for PTSD throughout the appeal period. VA treatment records and examination reports indicate that the Veteran's PTSD is characterized by flattened affect, depressed mood, chronic sleep impairment, panic attacks more than once a week, impaired short term memory, and difficulty in establishing and maintaining effective work and social relationships. As will be discussed in more detail below, such symptoms indicate some occupational and social impairment; however, they do not warrant a disability rating in excess of 50 percent. The Board observes that a higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology more nearly approximates a 70 percent evaluation or higher during this period. In this regard, the Veteran's treatment records do not contain evidence which supports a finding that he suffers from near-continuous panic attacks, delusions, or obsessive rituals. Further, treatment records and examination reports noted the Veteran is oriented in all spheres, had normal thought processes, and had speech within normal limits. The criteria for a 70 percent or higher rating are not met as the Veteran has the ability to attend to basic personal appearance and hygiene. The August 2008 VA examination indicates the Veteran appeared neatly dressed and groomed; nothing unusual was noted about his general physique or his facial features. Further, the examiner noted he was able to relate appropriately to the examiner and was cooperative with all interview questioning. Finally, the evidence shows that the Veteran is oriented: both the March 2007 initial evaluation for PTSD and the August 2008 VA examination report indicate that the Veteran was oriented as to time, place, person and situation. With regard to the Veteran's ability to establish and maintain personal relationships, the 70 percent criteria are not more nearly approximated. While he has difficulty establishing and maintaining effective relationships, as evidenced by his wife's statement that he had no friends, and by the Veteran's statements that he remains married due to his wife's patience with his PTSD symptomatology and her desire to stay married and not get divorced, the fact remains that the Veteran and his wife have been married for over 40 years, and the August 2008 VA examination report noted the Veteran interacts with his son and grandchild. Further, the Veteran reported a respectful relationship between himself and his foreman at work, and indicated that his work required him to interact on a regular basis with another co-worker. Significantly, the evidence shows that the Veteran has not been unable to maintain employment due to his PTSD. Notably, the August 2008 VA examiner noted the Veteran is very work-oriented and uses overwork, if anything, as a coping mechanism. As a result, he has not lost any time from work over the past 12-month period. Further, the examiner noted that the Veteran reported that he had remodeled his entire house over the years. The examiner also found this to be a form of overwork as most of the remodeling was performed after 11 p.m. In light of such evidence, the Board concludes that the Veteran experiences some occupational and social impairment. However, but the record reflects he is capable of maintaining some successful relationships, as is evidenced by his long-term marriage, his relationship with his son and grandchild, and his relationships with one or two co-workers. Therefore, the Veteran's impairment in this area does not more closely approximate the criteria for a 70 percent rating. The Board acknowledges that the evidence of record demonstrates that the Veteran has difficulty with suicidal ideation. However, there is only a history of one attempt in 1988, and no current plans or intent. Notably, the Veteran entered therapy after this incident, and there have been no attempts since. In addition, he denied experiencing any homicidal ideation. Further, the August 2008 VA examiner noted the Veteran has difficulty with impaired impulse control, but noted that he "manages to control this by walking away." Thus, although the Board finds that these symptoms indicate some serious symptoms, it concludes that the Veteran's overall disability picture continues to more closely approximate that contemplated by a 50 percent evaluation. Also of record are the Veteran's Global Assessment Functioning (GAF) scores. The Veteran's GAF scores have remained relatively steady through the appeal period, generally ranging from 45 to 50. However, the Board notes that the March 2007 initial PTSD evaluation noted a GAF score of 70, primarily as due to the Veteran's ability to maintain a long-term marriage and full time employment. However, the August 2008 VA examiner noted that the 70 GAF score was "unusually high" and this examiner stated that a GAF score of 50 is more reflective of the Veteran's occupational and social impairment. The examiner stated that the Veteran is able to function in his occupational setting quite well because of its near isolative setting. He stated that if this were to change, he does not think the Veteran would fare very well. Regarding social interactions, the examiner acknowledges the Veteran's relationships with his wife, son and grandchild, but noted that he has essentially eliminated any other interactions. Based on the thoroughness of the 2008 examiner's report and his review of the record, the Board finds that the GAF score of 70 is less probative, and the GAF score of 50, which is indicative of serious symptoms, more closely approximate the Veteran's disability picture. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995 (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine whether to give credit and where to withhold the same). Further, the Board recognizes that GAF scores are just one component of the Veteran's disability picture, and that it does not have a "formula" that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. As such, in viewing the evidence of record in its entirety, the Board finds that the Veteran's overall disability picture continues to most closely approximate that contemplated by a 50 percent evaluation. In sum, the evidence of record demonstrates that the Veteran successfully maintains full-time employment as well as a relationship with his wife, son, and grandchild, and a respectful relationship with his supervisor. The record also demonstrates that he is able to function independently, and has no delusions, near-continuous panic attacks, obsessional rituals, or cognitive impairment. Further, his speech is within normal limits, as reported by the 2008 examiner, and he does not neglect his personal appearance or hygiene. Also, while he has impaired impulse control, it is without unprovoked irritability or periods of violence as he reported he is able to control his impulses by walking away from such situations. He does, however, exhibit a flattened affect, depressed mood, anxiety, chronic sleep impairment, some difficulty with short-term memory loss, dissociative flashback episodes, and panic attacks more than once a week. Overall, the Board concludes that the evidence discussed above, to include the GAF scores, supports no more than a 50 percent rating at any point during the appeal period. The Board acknowledges that the evidence of record demonstrates that the Veteran has some moderately severe symptoms such as suicidal ideation and impaired impulse control, but again notes that the Veteran has shown no intent since starting therapy (in 1988) and admitted to being able to control his impulses by walking away. Thus, the Board finds that the Veteran's overall disability picture does not warrant a rating in excess of 50 percent. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against an evaluation higher than 50 percent, and therefore, does not apply. 38 U.S.C.A. § 5107(b). In making the above determination, the Board acknowledges the use of the term "such as" in 38 C.F.R. § 4.130, Code 9411, which demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's PTSD that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. Id. While the Veteran's PTSD may be manifested by only some symptoms that are associated with the 70 percent rating or the maximum rating of 100 percent, the Board finds that the Veteran's PTSD disability picture did not more nearly approximate the criteria for either of those ratings at any time during this appeal. 38 C.F.R. § 4.7. As such, the Board finds that the criteria for a 50 percent rating, but no higher, for the Veteran's service-connected PTSD have been met for the entire appellate period. 38 C.F.R. § 4.130, Code 9411. The record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD such that an extraschedular rating is warranted. The Veteran's disability is manifested by impairment in social and occupational functioning. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board notes that the Veteran's Virtual VA eFolder shows that the RO granted service connection and a 100 percent schedular rating for prostate cancer, effective December 22, 2011. The issue of entitlement to TDIU during the pendency of the 100 percent schedular evaluation is moot, and, as the remainder of the evidence demonstrates that the Veteran was employed full-time during the earlier portion of this appeal, the issue of entitlement to total disability based upon individual unemployability (TDIU) is not for present consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating of 50 percent, but no higher, is granted for PTSD, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs