Citation Nr: 1324477 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-08 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a higher initial evaluation for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for PTSD and assigned it a 50 percent rating from the October 2005 date of claim. This and the matter of service connection for right eye disability were remanded in April 2011 for further development. In March 2012, the RO granted service connection for right eye aphakia, and so the matter of service connection for right eye disability is no longer on appeal. The Veteran presented testimony at an RO hearing in March 2010, and failed to appear for a Board hearing in January 2011. FINDING OF FACT The Veteran's PTSD does not cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, thinking, or mood. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, 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). The 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in November 2005. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran an April 2011 correspondence that fully complied with Dingess. This was followed by readjudication in March 2012, curing the timing error. Prickett v. Nicholson, 20 Vet. App. 370 (2006). Any VCAA notice error is harmless, as service connection was granted for PTSD, rendering moot any notice errors. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice concerning increased ratings was provided in April 2011. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for PTSD in December 2005 and April 2011; and afforded the Veteran the opportunity to give testimony before the Board. The VA examination reports contain sufficient evidence to fairly and impartially adjudicate the claim. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's April 2011 remand by obtaining VA medical records and a VA examination and readjudicating the claim. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The Veteran appeals the denial of a rating greater than 50 percent for his service-connected PTSD. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's PTSD is rated under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders, under which 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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; intermittently illogical obscure, or irrelevant speech; 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. A 100 percent evaluation is warranted where there is 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in VA's 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). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2012). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 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 functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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 score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. On VA examination in December 2005, the Veteran denied any legal problems and reported that he had worked as a bricklayer with relationships with his supervisor and co-workers being good. From time to time due to his symptoms, he would get dismissed from the job. He reported that his relationship with his parents was good, and with his siblings, it was very good. He was divorced and indicated that his relationship with his children was fairly good. On examination, he was normally oriented and his appearance, hygiene, and behavior were appropriate. He had disturbed motivation and mood. Communication and speech were normal and there were no delusions or hallucinations present. Thought processes were appropriate, judgment was not impaired, thinking and memory were normal, and homicidal and suicidal ideation were absent. The diagnosis was PTSD with secondary alcohol and drug abuse, and the GAF was 46. The examiner indicated that the Veteran was mentally capable of managing his benefit payments in his own best interest, and that he did not have difficulty performing activities of daily living. He had difficulty in establishing and maintaining effective and social relationships because of alcohol and drugs. He had no difficulty understanding commands and appeared to pose no significant threat of persistent danger or injury to self or others. A VA outpatient visit in May 2008 found a GAF of 55. In June and August 2008, the Veteran was neatly dressed and groomed, and had a euthymic mood with restricted affect and coherent speech. Thought processes were logical, concentration was good, and behavior was cooperative and appropriate, with no psychomotor agitation noted. There was no evidence of psychosis or delusional thinking. The Veteran was blissful in July 2008. In October 2009, a health screen which was performed on the Veteran was suggestive of moderately severe depression. In January 2010, the Veteran felt that his PTSD was exacerbating and complained of feeling depressed and scared to be alone due to hypervigilance. Health screens were negative for depression/suggested no depression. After psychiatric referral wherein it was noted that the Veteran had been unemployed since 2002, his examination findings were about like they were in May 2008. The assessment was PTSD by history, and alcohol and drug dependence in full sustained remission. On VA evaluation in February 2010, the Veteran indicated that he stopped working full time years ago due to arthritis, but that he still occasionally did small jobs. His GAF was 51. In March, April, August, November, and December 2010, and in January 2011, findings similar to those shown in May 2008 were reported, and the Veteran's GAFs were again 51. In January 2011, the Veteran reported that he enjoyed thrift shopping, was trying to remain busy, and was exercising; he was also volunteering to help another Veteran. Findings in March 2011 were similar to those reported in May 2008. During the Veteran's March 2010 RO hearing, he testified that he might be talking about Vietnam one day and then 2 or 3 weeks later, he will have nightmares about the incident. On VA examination in April 2011, the Veteran reported occasional nightmares, with the last one being in the past month sometime. He reported losing his interest in fishing but enjoying thrift shopping now. He reported not trusting people but having a number of active long-distance friendships, as well as close relationships with family members. He denied homicidal or suicidal thoughts. He reported feeling anxious much of the time, but denied panic attacks. He had an apartment at a seniors' community, but usually lived about 4 days a week at his brothers', mostly taking care of them. He was in regular telephone contact with friends, and was in touch with his family members all of the time and maintained good relationships with them and tried to attend church weekly. He reported showering daily and having no problems maintaining his hygiene; he was extremely tidy at home, and had no trouble taking care of errands. He was on time for his appointment and was clean, very well groomed, and well dressed. His speech was mostly normal, and his thoughts were tangential. He denied any suicidal or homicidal thoughts and reported occasional auditory hallucinations. He seemed rather paranoid, but had no frank delusions. His mood was euthymic but sometimes depressed. His affect was full and appropriate. He was alert and fully oriented and was able to register 3 words immediately and 2 after several minutes, recalling the 3rd with a cue. He could subtract 3 from 20 six times with one minor error and knew the last 4 presidents in order. The diagnoses were PTSD; psychotic disorder; and alcohol and drug dependence in full sustained remissions. His GAF was 58. The Veteran indicated that his being unemployed had nothing to do with his mental problems. The examiner felt that his symptoms caused occupational impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. There is no question that the Veteran's PTSD results in some social and occupational impairment, as reflected by the last statement reported above. However, after carefully reviewing the evidence of record in light of the regulatory rating criteria, the Board is compelled to conclude that the current 50 percent rating accurately reflects the demonstrated symptoms and impairment. Although the symptoms set forth in the rating criteria are examples of the type and degree of symptoms that would justify a particular rating, the evidence in this case clearly paints a picture of an individual whose PTSD symptoms are most in keeping with those listed for a 50 percent rating. In this regard, the record states that there are intermittent periods of inability to perform occupational tasks; it appears that the Veteran generally performs satisfactorily. The records show that he performs self care well, and that conversation is basically normal. The Veteran has suffered from some depression, anxiety, and paranoia. However, all of his symptoms are contemplated under the criteria for the existing 50 percent rating. The Veteran's GAFs have been between 46 and 58, with all but one being at least 51. Moreover, his depression was characterized as moderately severe on screening once and absent another time. He works on occasions, maintains close relationships with relatives and a number of friends, volunteers to help another Veteran, and maintains contact with and even lives part time with relatives, helping take care of them. He enjoys thrift shopping and goes to church. There is no persuasive evidence that he has lost significant work due to his PTSD symptoms. To the contrary, he indicates that his unemployment has nothing to do with his mental problems. Moreover, he has not been hospitalized for his PTSD during the course of the claim and instead has merely been treated with medication. He has been clean, groomed, and well dressed etc. on evaluations, with good speech, and normal thoughts and memory. He has been cooperative with examiners. His symptoms do not produce or nearly approximate reduced reliability and productivity. There is no indication of circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, or impairment of short and long term memory. Moreover, clinical reports indicate that the Veteran's judgment is normal. He has not had impaired abstract thinking, and disturbances of motivation and mood have not been found. Also, there has generally been no reported difficulty in establishing and maintaining effective work relationships with his customers. In sum, the Board finds that the preponderance of the evidence is against a finding that the criteria for a rating in excess of 50 percent are met at any time during the appeal period. The Board stresses to the Veteran that it does not doubt that the PTSD results in impairment. However, the Veteran's current impairment is reflected accurately by the current 50 percent rating. The Board is bound to apply the regulatory criteria. Should his PTSD increase in severity in the future, the Veteran may file a new claim for an increased rating. Extraschedular In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Code for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Lastly, the Board acknowledges the judicial holing in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) regarding claims for a total disability rating based on individual unemployability (TDIU) reasonably raised by the record. However, in this case, TDIU has already been awarded to the Veteran. The preponderance of the evidence is against a higher rating and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER A rating higher than 50 percent for PTSD is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs