Citation Nr: 1324166 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-04 825 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) with major depressive disorder, for the period from July 16, 2008, to September 2, 2011. 2. Entitlement to an initial disability evaluation in excess of 70 percent for the service-connected PTSD with major depressive disorder, beginning on September 3, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2008 by the RO that granted service connection for PTSD and assigned an initial evaluation of 50 percent effective on July 16, 2008. The Veteran provided testimony at an August 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The issue of a total rating based on individual unemployability (TDIU) was raised during the August 2012 hearing. A veteran's claim for a TDIU rating is adjudicated as part and parcel of the claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that entitlement to a TDIU was denied in an April 2012 rating decision, and the Veteran did not appeal this decision. The Board further notes that in March 2013, the Veteran was granted service connection for prostate cancer evaluated as 100 percent disabling and granted special monthly compensation based on housebound criteria beginning on February 19, 2013. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records pertinent to the present appeal. FINDINGS OF FACT 1. For the period of the appeal beginning on July 16, 2008, the service-connected PTSD with associated depression, is shown to have been manifested by a disability picture that more nearly approximated that of occupational and social impairment, with deficiencies in most areas, including work, family relations, judgment and mood, due to such symptoms as suicidal ideation; near-continuous anxiety and depression; and difficulty in adapting to stressful circumstances, including work or a work-like setting. 2. For the period of the appeal beginning on July 16, 2008, the service-connected psychiatric disability picture is not shown to have been productive of total occupational and social impairment to include symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating of 70 percent for the service-connected PTSD beginning in July 2008 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.130 including Diagnostic Code 9411 (2012). 2. The criteria for the assignment of a rating higher than 70 percent for the service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 ); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.130 including Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty 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 Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; 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). Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. The Veteran originally received VCAA notice in August 2008. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. The letter also provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. The duty to assist provisions of VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of recent VA examinations in November 2008 and September 2011. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The Veteran testified at a hearing in August 2012. The hearing focused on the elements necessary to substantiate his increased rating claim and, through his testimony and his representative's statements, the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Law and Regulations Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, 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 upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment: 38 C.F.R. § 4.126(b). Prior to September 2, 2011, the service-connected PTSD was rated under Diagnostic Code 9411 as 50 percent disabling. Then, effective on September 2, 2011, the rating was increased to 70 percent disabling. Psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when 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. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102, Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Symptoms listed in the General Rating Formula for Mental Disorders 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). When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board is to consider the Global Assessment of Functioning (GAF) scores that have been reported. GAF scores range between 0 and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Merits of the Claim The Veteran served on active duty in the Marine Corp from June 1967 until June 1973. He served in the Republic of Vietnam. In a January 2006 VA psychosocial assessment, the Veteran was diagnosed with chronic delayed onset PTSD. The Veteran reported recurrent distressing dreams about in-service trauma and intense distress at exposure to cues that resembled the event. He reported that he cries when he sees reports about the current wars. He reported diminished interest and participation in activities, feelings of detachment and estrangement from others, difficulty in falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and he demonstrated a restricted range of affect. As of February 2006, the Veteran was receiving medication through VA for depression. In April 2006, the Veteran received VA mental health treatment. The Veteran reported having persistent symptoms of depression. He did not link his service experiences to his current mood symptoms and described the military as a good experience. In an April 2008 VA treatment note, the examiner diagnosed chronic PTSD with recurrent major depression. In June 2008, a VA treatment note indicated that the Veteran described a recurring dream of something trying to kill him and feeling sad at the loss of lives in Vietnam. In an October 2008 mental health counseling note, the Veteran related that he had to quit his job due to the associated stress levels. He stated that he was first aware of PTSD symptoms in 1991 at the start of Gulf War. In an October 2008 VA treatment note later that month, he reported that depression medication caused him to have nightmares of Vietnam. At a VA examination in November 2008, the Veteran reported having irritability and anger with others. He reported suicidal ideation, but no plan or intent to harm himself. The Veteran reported becoming increasingly distressed with coverage of the war in 1990 and had to quit his work due to PTSD symptoms. The VA examiner explained that the Veteran was depressed and that his low mood, lack of interest, fatigue, and concentration problems hinder his ability to work and interact with others. He further indicated that the Veteran's symptoms require continuous medication and that without treatment he is unable and emotional and could not perform most work duties. The VA examiner diagnosed the Veteran with major depressive disorder and chronic PTSD and assigned a GAF score of 40-49. A September 2010 private evaluation report from the Clements Clinic noted the Veteran reported having symptoms consistent with consistent sadness, low energy and motivation, fatigue, loss of interest in most activities, crying episodes, social isolation and suicidal idea, and difficulty maintaining hygiene. On examination, his appearance was neat and his attitude was cooperative and pleasant. His behavior, speech, and eye contact were noted to be normal. The Veteran was oriented to person, place, and time. His affect was described as normal and thought processes and memory appeared to be intact. The Veteran endorsed suicidal ideation, but denied any intent to harm himself. The physician noted there was no evidence of delusions or homicidal ideation. Single Photon Emission Computed tomography studies of the brain showed brain activity consistent with depression and PTSD. The Veteran underwent a second VA examination in September 2011. He was not taking medication to treat the service-connected PTSD. On examination, he appeared neatly dressed and was cooperative. His affect was described as depressed and anxious. His thought processes were clear, logical, linear, and coherent. The Veteran reported having panic attacks three to four times a month. He denied any delusions or hallucinations, and none were observed. He endorsed suicidal ideation, but denied an intent to harm himself. He described a positive relationship with his wife and indicated that his yelled at his fifteen year-old granddaughter who lived with them. The Veteran indicated that his symptomatology had increased in severity, but felt that he should be rated higher than 50 percent. He endorsed symptoms of chronic sleep impairment, depression, anxiety, mild memory loss, and disturbances of mood and motivation. The VA examiner assigned a GAF score of 50. He further indicated that the Veteran's PTSD signs and symptoms resulted in occupational and social impairment with deficiencies in most areas, but that it would not make him unemployable. The Board has also considered the lay assertions and found the Veteran to be credible. These taken with the totality of the other evidence of record tend to show that the service-connected PTSD is productive of a disability picture that more nearly approximate that of occupational or social impairment with deficiencies in most areas for the initial period of the appeal. In finding that a 70 percent rating is warranted, the Board is not required to find that an exhaustive list of symptoms be met. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Rather, the Veteran's overall disability picture more closely resembles the criteria warranting a 70 percent rating for the service-connected PTSD. The Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). While the medical and lay evidence shows that the Veteran has significant impairment from his PTSD symptoms, his service-connected disability picture does not meet the criteria warranting the assignment of a 100 percent evaluation under established rating standards. At no point during the appeal, has the Veteran had abnormal thought processes. In fact, they were consistently within normal limits. His health care providers denied the presence of delusions, and he consistently denied hallucinations. The Veteran has consistently been found to be capable of performing his activities of daily living independently and has not significantly neglected his personal hygiene. At no point during the appeal period has he been found to be disoriented as to time or place. He was found to have some problems with concentration and slight memory loss. The Veteran reported having some suicidal ideation, but denied having intent or a plan to harm himself or being a danger to himself or others at any point during the appeal period. The Veteran's assigned GAF scores have ranged from 40 to 50 (indicating serious symptoms). Although at times serious symptoms were noted, the Board finds that for this period, his symptoms as described by his health care providers do not support the assignment of a rating higher than 70 percent. Moreover, the evidence of record does not reflect total social or occupational impairment as required by the provisions of Diagnostic Code 9411. The Veteran has reported that he works as a substitute pastor in the community. The Veteran has been married for over 45 years and, despite the stress his PTSD symptoms placed on his marriage, described his relationship with his wife as positive. Although he reports having no friends, he maintains a relationship with his granddaughter who lives with him and participates in church activities. This would not be consistent with total social impairment. In reviewing the evidence, the Board finds that the overall disability picture for the service-connected PTSD does not warrant the assignment of a rating higher than 70 percent. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim for a rating higher than 70 percent so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's symptoms due to the service-connected PTSD do not meet the criteria for a higher rating at any time, so the Board may not further stage his rating. Fenderson, 12 Vet. App. at 125-26. The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thune v. Peake, 22 Vet. App. 111 (2008), aphid, Thune v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described, the manifestations of the service-connected PTSD are contemplated by the schedular criteria; no examiner has reported an exceptional disability picture with symptoms not accounted for by criteria in the rating schedule. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. ORDER An initial disability evaluation of 70 percent for the service-connected PTSD is granted, prior to September 2, 2011, subject to controlling regulations governing the payment of monetary awards. An increased evaluation in excess of 70 percent for the service-connected PTSD is denied. _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs