Citation Nr: 1324630 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-28 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a disability rating higher than 30 percent for Post-Traumatic Stress Disorder (PTSD). ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active from March 1969 to March 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2008, the North Carolina Division of Veterans Affairs withdrew its representation of the Veteran. The Veteran has not obtained another representative. FINDING OF FACT The veteran's service-connected PTSD has been shown to result in occupational and social impairment with reduced reliability and productivity due to symptoms including disturbance of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for a disability rating of 50 percent for PTSD have been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.16, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA: (1) a duty to notify and (2) a duty to assist. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). As discussed below, VA complied with both these duties. The duty to notify requires VA to notify claimants of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1). VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded. Id. Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, VA fulfilled its duty to notify by the sending the Veteran a letter, dated in May 2010, before the RO adjudicated his claim, that notified him of the information detailed above. In any event, the Veteran has not alleged any prejudice regarding VA's duty to notify, and the Board finds none. See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue). The duty to assist requires VA to help claimants develop their claims by: (1) obtaining evidence such as treatment records and other relevant evidence; and (2) providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, VA obtained the Veteran's service and VA treatment records. VA also obtained the Veteran's psychiatric records from his private mental health provider. Moreover, VA provided the Veteran an examination in June 2010 to determine if his disability warranted a higher rating. The Board finds the examination adequate because its report shows that the examiner reviewed the Veteran's claims file, considered the history of the disability, and described and explained the disability in sufficient detail for VA to weigh the information in the report with other evidence of record and determine if a higher rating is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, VA must ensure the examination provided is adequate). The Veteran does not identify and the record does not indicate any additional evidence that is necessary to fairly adjudicate the claim. Therefore, the Board finds that the claim is fully developed and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim In October 2006, the RO granted the Veteran a 30 percent rating for PTSD, effective March 20, 2006. In December 2008, the Board denied the Veteran's appeal for entitlement to an initial rating higher than 30 percent. In April 2010, the Veteran submitted a new claim for a rating higher than 30 percent, asserting that his PTSD had worsened. For the reasons set forth below, the Board grants his appeal to the extent of a 50 percent disability rating for PTSD. Disability ratings are determined by applying the criteria found in VA's Schedule for Rating Disabilities (Schedule), which is based on 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 (2012). The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Criteria for rating disability due to PTSD are found in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. According to the applicable rating criteria, when evaluating a mental disorder, such as PTSD, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual'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 the basis of social impairment. 38 C.F.R. § 4.126(b) (2012). For PTSD, a 30 percent rating is warranted when the disorder is manifested by 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). 38 C.F.R. § 4.130. A 50 percent rating requires 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating requires 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. Id. A 100 percent rating requires 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. If a disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The part of the Schedule that addresses service-connected psychiatric disabilities is based on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130 (2012). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero 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. Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). 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). Id. 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). Id. GAF scores ranging between 31 and 40 are assigned when there is 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). Id. Recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided guidance in rating psychiatric disabilities. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Id. at 115. The Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 117. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 115. In determining a disability rating, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). "[T]he relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period of one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Nonetheless, VA must assess a disability in relation to its history when making a disability determination. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). The Board must also consider if separate findings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings called "staging the ratings." Hart, 21 Vet. at 509. ("It is well established that, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found[]"). In deciding the Veteran's increased rating claim, the Board has reviewed all the evidence of record. Evidence relevant to the severity of the Veteran's service-connected PTSD for the relevant time period includes the report of the June 2010 psychiatric examination and the Veteran's private psychiatric records from April 2009, one year before he filed his claim, to February 2011. The June 2010 examination report recounts the Veteran's complaints of anxiety and depression. The report notes that the veteran's claims file was reviewed by the examiner prior to the interview. The report reveals that the Veteran was neatly groomed and appropriately dressed; that his psychomotor activity was unremarkable; that he was cooperative; that his affect was normal; that his attention was intact; that his orientation as to person, time, and place were intact; that his thought process and thought content were unremarkable; that he had no delusions or hallucinations; that his judgment was not impaired; that he understood that he has a problem; that he did not exhibit inappropriate behavior; that he did not have obsessive or ritualistic behavior; and that his long- and short-memories were normal. However, the examiner observed that Veteran's mood was anxious; that his speech was mumbled and fast, that his enunciation was poor and that, at times, he had difficulty understanding him. Moreover, the Veteran reported thoughts of suicide and difficulty in establishing and maintaining effective work and social relationships. As to the frequency, severity, and duration of the Veteran's PTSD symptoms, the June 2010 examiner found that the Veteran's recurrent, distressing dreams, which occurred twice a week, were severe; his efforts to avoid thoughts, feelings, and conversations related to the trauma, which he accomplished by not talking to anyone about it and drinking to take his mind off it, were moderate; his efforts to avoid activities or people that arouse recollections were mild to moderate; his feelings of detachment were moderate; his restricted range of affect as evidenced by his difficulty to experience happiness, was mild to moderate; his irritability and outbursts of anger were moderate; and his hypervigilance was moderate. The examiner concluded that the Veteran suffered occupational and social impairment with reduced reliability and productivity due to his PTSD symptoms. The Veteran's symptoms were described as generally moderate. The examiner assigned GAF score of 55. The Veteran's private psychiatric records detail the Veteran's financial worries, concerns about the economy, avoidance of people, and alcohol use. Upon consideration of the evidence of record and the applicable schedular criteria, the Board concludes that a disability rating of 50 percent is warranted. In support of this conclusion, the Board notes that the June 2010 psychiatric examination, as summarized above, shows that the Veteran's PTSD symptomatology (disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships) is consistent with the criteria for the 50 percent rating. And as noted above, the examiner concluded that overall the Veteran's PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity. Moreover, the Veteran's GAF score of 55 is consistent with moderate symptoms. The Board finds, however, that the Veteran's disability does not approximate the criteria for the next higher rating of 70 percent because there is no evidence that his disability resulted in deficiencies in most areas. The Veteran's overall disability picture is not one of near continuous depression or panic. Moreover, the Veteran has not shown symptoms commensurate with impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, obsessional rituals that interfere with routine activities, or inability to establish and maintain effective relationships. While the Veteran reported thoughts of suicide to the June 2010 examiner, he stated that "he would not do it because he doesn't want to hurt himself." As to the Veteran's suicidal thoughts, the examiner further commented: "No specific plan. No intent. Does have guns, stores them in a safe, unloaded. If thoughts got worse, he would tell his wife, but reported, 'I'm not going to hurt myself.' Gave him brochure with hotline number and information for family members on how to help veterans with suicidal thoughts." Based on the tenor of the examiner's description of the Veteran's suicidal thoughts and the examiner's findings that his judgment was not impaired and that his thought content and thought process were unremarkable, the Board finds that Veteran's suicidal thoughts do not result in occupational and social impairment with deficiencies in most areas as is required for a 70 percent rating. Additionally, the Board has considered whether, but does not find, that separate findings for different periods of time, i.e., staged ratings, are warranted. Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board has also considered whether total disability rating based on individual unemployability (TDIU ) is asserted. TDIU may be granted on an extra-schedular basis if it is found that the Veteran is unable to secure and follow a substantially gainful occupation on account of service-connected disabilities. 38 C.F.R. § 4.16(b). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Veterans Court) held that a TDIU claim is part of an increased rating claim when such a claim is raised by the record. In this case, the Veteran's private psychiatric records include a progress report from June 2010, stating that the Veteran does not feel that he has the focus to work. The Boards finds that the notation does not raise a TDIU claim because it does not state the Veteran does not work or is unable to work. Indeed, evidence reveals that, at the time of the report, in June 2010, the Veteran was, in fact, working, albeit on an as needed basis due to his temporary lay-off. Moreover, at the VA examination, also in June 2010, Veteran denied "any missed days from work due to mental health symptoms or any problems in work performance related to mental health symptoms." A higher evaluation on an extra-schedular basis may also warranted under 38 C.F.R. § 3.321(b)(1) based on the guidance provided in Thun v. Peake, 22 Vet. App. 111 (2008). Under Thun, the Board must first determine whether the scheduler rating criteria reasonably describes the Veteran's disability level and symptomatology. Id. at 115. If it does, the assigned scheduler evaluation is adequate and referral for extra-schedular consideration is not required. Id. The Board recognizes that the June 2010 examiner also diagnosed alcohol abuse on Axis I along with PTSD. However, the examiner stated that both disorders were mutually aggravating and that the symptoms could not be separated without undue speculation. The examiner further stated that the disorders were encompassed in the Veteran's GAF score of 55. Because a higher rating is available for more severe symptoms than the Veteran exhibits and the 50 percent rating criteria reasonably describes the Veteran's symptoms, the Board finds the assigned scheduler evaluation to be adequate and that referral for extra-schedular consideration is not required on this basis. The Board concludes that the criteria for a rating of 50 percent for PTSD have been met. ORDER Entitlement to a disability rating of 50 percent for Post-Traumatic Stress Disorder (PTSD) is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs