Citation Nr: 1324649 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 07-14 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. What evaluation is warranted for posttraumatic stress disorder (PTSD), prior to January 5, 2012? 2. What evaluation is warranted for posttraumatic stress disorder (PTSD), since January 5, 2012? REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and C.F. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to April 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Veteran testified before a Decision Review Officer at the RO in March 2007; a transcript of which is of record. This appeal was previously before the Board and remanded in February 2011. As explained in more detail below, the Board's remand directives were completed, and the claim is properly before the Board at this time. A review of the Veteran's Virtual VA claims file shows that it contains relevant evidence not also a part of his physical claims file. That evidence was reviewed by the RO prior to the January 2012 readjudication and by the Board prior to this decision. Following a review of the record, the question what evaluation is warranted for posttraumatic stress disorder since January 5, 2012 is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT Prior to January 5, 2012, the symptoms and overall level of impairment of the Veteran's PTSD most nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Prior to January 5, 2012, the criteria for a rating of 50 percent, but no higher, for PTSD were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In a letter dated in November 2006, VA notified the Veteran of the information and evidence needed to substantiate a claim for increase, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The claim was most recently readjudicated in a January 2012 supplemental statement of the case. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim herein decided on the merits, and as warranted by law, affording VA examinations. Following the February 2011 remand the RO/AMC obtained outstanding VA treatment records, and VA sent a letter to the appellant requesting the information specified by the Board. The Veteran did not identify any outstanding treatment records. There is no evidence that additional records have yet to be requested, or that additional examinations are in order with respect to the issue decided below. At the March 2007 RO hearing the decision review officer explained the issue involved, and there is no evidence that during the course of the development of this claim that the appellant has not been advised to submit evidence that may have been overlooked. While the appellant reported that he was in receipt of benefits from the Social Security Administration he admitted that those benefits were not awarded due to posttraumatic stress disorder. Hence, there is no duty to secure them. Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008) (VA need not provide assistance when "no reasonable possibility exists that such assistance would aid in substantiating the claim"). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that II. Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, a uniform rating is proper. Psychiatric disorders, to include posttraumatic stress disorder, are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 30 percent rating requires a showing of 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, and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for 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; difficulty in establishing effective work and social relationships. Id. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. While embracing the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities, see Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004), the Federal Circuit has found that the presence of symptoms must also cause occupational and social impairment at the level identified in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Global Assessment of Functioning scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). A global assessment of functioning 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 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 peer or coworkers). A score of 61-70 indicates 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 that the individual is generally functioning pretty well and has some meaningful interpersonal relationships. A global assessment of functioning score of 71-80 indicates 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). A November 2005 VA outpatient treatment record shows increased thoughts of suicide following a flood in his community. In February 2006, the Veteran underwent a VA examination. He reported trouble sleeping, avoidance of crowds, keeping loaded guns in his house, nightmares, and anger. He had been married for more than 25 years and reported that they did not argue all the time. He described his relationships with this three children as "all right." His daily activity was to use his computer to play games or look at the web. On examination, the Veteran's behavior was guarded and speech hesitant. His affect was inappropriate. It was difficult to read his mood. There was irritability but no indication of depersonalization. He reported derealization but denied hallucinations and illusions. His thought process was ambiguous, close to the vest, and guarded. There were no preoccupations, obsessions, or delusions. There was passive suicidal ideation, but no homicidal ideation. He was oriented. Attention, concentration, and memory were within the normal range. Thinking, reasoning, and judgment were within normal limits. He reported that he never kept a job due to arguments and preferred to work away from people. He had no feelings towards his wife. The diagnosis was PTSD, and the global assessment of functioning score was 55. The examiner noted that this was in the moderate range, as the Veteran attended group sessions, had a couple of friends, and reported a typical relationship with his wife and children. There was also a diagnosis of a personality disorder. Subsequent VA outpatient treatment records dated from February to October 2006 indicate that the Veteran denied suicidal or homicidal ideation. Appearance, speech, thought, and cognition were normal. His mood and affect were depressed and sad. The Veteran reported a strong social support network of fellow veterans and good relationships with his family members. Judgment and insight were intact. He also attended group therapy. In November 2006, the Veteran underwent VA examination. He reported working part-time as a substitute teacher, which was going very well. He described his marriage and relationships with his children as "pretty good." He had two or three friends with whom he spent time and saw family on holidays. On examination, the Veteran was tense, agitated and seemed angry at the examiner. His speech was slow, monotonous, and hesitant. Affect was appropriate to his mood. There was no evidence of depersonalization but there was evidence of derealization. He denied hallucinations or illusions. Thought process was normal. There were no preoccupations or delusions. There was passive suicidal and homicidal ideation. The Veteran was oriented, and attention, concentration, and memory were normal. Thinking, reasoning, and judgment were in the normal to average range. The diagnosis was PTSD and a global assessment of functioning score of 50 was assigned. This denoted serious symptoms and reflected passive suicidal and homicidal ideation with difficulties maintaining full-time employment. He taught one to two days per week, and his psychiatric symptoms did not render him unemployable. His symptoms moderately affected his social functioning. A November 2006 VA outpatient treatment record indicates that the Veteran reported that his anger was diminishing. Subsequent VA treatment records show that the Veteran's affect was flat, and his mood was depressed. In March 2007, the Veteran testified at the RO that his interests included astronomy, hunting and fishing. He pursued these interests with friends. He was no longer working. His relationships with his kids and wife were good. He occasionally had panic attacks and reported nightsweats. While they were growing up, his children learned to tiptoe around him. In an April 2007 written statement, the Veteran clarified that he hunted with a friend because of his medical issues. He used to hunt alone but was no longer physically able to do that. The Veteran continued to attend regular group and individual therapy sessions. During one such August 2008 session, he indicated that he originally sought treatment due to suicidal thoughts but had not had those in a while. During a November 2008 individual session, he indicated that suicidal thoughts were now fleeting, not fully formed, and quickly left his mind. There was no intent or plan. In March 2011, the Veteran underwent VA examination. He reported daily PTSD symptoms. They were chronic and continuous but with fluctuations. They varied from mild to moderate. He experienced severe symptoms once or twice per year. His predominant symptoms were hypervigilance and paranoia, along with anger, irritability, and insomnia. He spent most of his days watching televisions, playing internet games, and emailing. He had active hunting and fishing lives during those seasons. He has not worked since 2004 and does not intend to look. The Veteran was currently married and had been for 31 years. He reported a small but satisfactory in degree and quality of social relationships. He spent most of his time visiting family or other veterans, along with working on remodeling his house. He was an avid fisher and hunter and enjoyed participating at the VFW. There was no recent violence, assaultiveness, or suicide attempt. His functioning seemed unchanged since the last examination. The appellant did not work due to reasons other than psychiatric reasons, and he had no intention of looking for work. Overall, his functional status fluctuates from average to occasionally below average, and his quality of life is fair to occasionally poor. On examination, the Veteran was calm and cooperative. There was no impairment of thought process or communication. There were no delusions or hallucinations. Eye contact was excellent. There were no current suicidal or homicidal thoughts, ideas, plans, or intentions. He maintained minimal personal hygiene and other basic activities of daily living. Orientation was normal, and there was no memory impairment. There was no obsessional or ritualistic behavior. Speech was normal, and there were no panic attacks. He endorsed a significant amount of anxiety and paranoia. He carried a loaded gun with him at all times. He also reported irritability, anger, and intermittent sadness. There was no impaired impulse control. He reported chronic and significant insomnia. The diagnosis was chronic posttraumatic stress disorder, with a predominance of moderate symptomatology, reexperiencing, and hyperarousal. The global assessment of functioning score was 60 to 75, with the predominance of 65 to 70. Insomnia affected his daytime mood regulation. The examiner opined that the Veteran's posttraumatic stress disorder was not sufficient to render him unemployable. Overall, there continued to be occasional decreases in work or social efficiency, and there are intermittent periods of an inability to perform certain occupational and social tasks due to exacerbations or increases in symptomatology. The examiner opined that the appellant's occupational and social functioning might improve with more intensive evidence based treatment and change in his medication. Since that examination, the Veteran has continued to undergo periodic psychiatric treatment. In June 2011, he denied recent suicidal ideation, and offered that he was able to control his temper and behaviors. He saw therapy as a priority. On January 4, 2012, the appellant was seen at a VA outpatient clinic. He reported that some of his posttraumatic stress disorder symptoms had lessened. Mental status examination revealed that the appellant was neatly and casually dressed, and neatly groomed. His speech was normal, his mood positive, and his affect was appropriate to content. His thought content was normal, coherent, lineal and logical. His judgment was intact, and he had fair insight. There were no signs of suicidal or homicidal ideation. He was oriented to person, place, date and time. The appellant agreed to return for therapy in six weeks. In this case, while fluctuations in symptomatology, global assessment of functioning scores, and overall impairment are inevitable during the course of the relatively lengthy appeal period, i.e., the term beginning one year prior to the September 2006 increased rating claim, the Board finds that the overall symptomatology and level of impairment have most nearly approximated those indicative of a 50 percent rating. The Veteran has periodically had symptoms of passive suicidal ideation, an abnormal affect, depressed mood, panic, anxiety, and interference with relationships. While he has reported that his relationships with his children were good, he also indicated that they learned from an early age to avoid certain subjects when talking to him and distance themselves physically when needed. He no longer worked and, even when he had been working, it was only one or two days per week, because he did not like to be around people. His lack of work, however, has been attributed to nonservice connected disorders. Therefore, while there is no evidence of difficulty understanding complex commands, memory impairment, or impairment in judgment, the Board finds that the remaining symptoms are demonstrated at least at some point during the appeal period, and they result in difficulty for the Veteran to establish and maintain effective work and family relationships. Thus, the criteria for a 50 percent rating are met. The above evidence reflects that the Veteran's symptomatology and overall impairment has most nearly approximated the criteria for a 50 percent rating throughout the appeal period. A rating higher than 50 percent is not warranted at any time throughout the appeal period, however, because the evidence preponderates against finding the symptomatology or overall impairment approximating the criteria for a 70 percent rating. As noted, there was some fluctuation in the Veteran's global assessment of functioning scores, with a low of 50. However, all other global assessment of functioning scores have been 55 or greater, with the most recent examination showing a score range of at least 60. The Veteran reported that suicidal ideation was the reason he initially sought mental health treatment at VA, his experience of this symptom since that time has been mostly nonexistent with occasional periods of transient thoughts. While his speech was sometimes noted to be hesitant and slow, it was never illogical, obscure, or irrelevant. He has exhibited both a depressed mood and symptoms of anxiety, but neither has been shown by the lay or medical evidence to be continuous or to interfere with his ability to function independently. There is no evidence of impaired impulse control, disorientation, or neglect of hygiene or personal appearance. During the appellate term prior to January 5, 2012, the Veteran maintained good relationships with his wife and children as well as a few friends who were also veterans. Therefore, he was able to establish and maintain effective relationships. As such, while there were occasional notations of depressed mood, the Veteran's overall impairment does not more nearly approximate the criteria for a 70 percent rating. The Veteran's lay statements, which the Board adjudges to be credible, support the Board's conclusion that a 50 percent schedular rating is proper throughout the appeal period. He described his relationships with his family as well as his history of suicidal thinking and other symptomatology. As noted above, pursuant to Mauerhan, the Board must consider the overall level of impairment caused by the Veteran's PTSD as well as the specific symptoms. The Veteran's statements in VA outpatient treatment records in particular reflect that his suicidal ideation was the reason he initially sought treatment but active suicidal ideation has been largely absent since. He also indicated on both VA examinations that his relationships with his wife and children as well as a few friends were good and supportive. The references to passive suicidal ideation do not warrant a 70 percent rating; rather, the lay and medical evidence show a reduced reliability and productivity rather than deficiencies in most areas and an ability to establish and maintain effective relationships rather than an inability or difficulties in doing so reflects that the Veteran's symptoms and overall level of impairment have most nearly approximated the criteria for a 50 percent rating throughout the appeal period. For the foregoing reasons, the symptoms and overall level of impairment of the Veteran's PTSD during the term prior to January 5, 2012 most nearly approximated the criteria for a 50 percent schedular rating throughout the appeal period. Entitlement to a schedular rating of 50 percent, but no higher, is therefore warranted and an increased schedular rating is otherwise not warranted. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. With regard to PTSD, the criteria reasonably describe the Veteran's disability level and symptomatology. All symptoms contained in the VA treatment records and examination reports as well as in the Veteran's written and oral statements are contemplated by the applicable rating criteria. Thus, consideration of whether the Veteran's PTSD exhibits other related factors such as those provided by the regulations as "governing norms" is not required, and referral for consideration of an extraschedular evaluation for the service-connected disability addressed herein is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a 50 percent rating for PTSD is granted for the period prior to January 5, 2012, subject to the laws and regulations governing the payment of VA benefits. REMAND The record discloses that the Veteran is receiving regular VA outpatient treatment for symptoms attributable to PTSD. The most recent records in this regard date, however, only through January 4, 2012, and at that time additional therapy was scheduled. Given that VA has notice of the potential existence of additional records, they must be retrieved and associated with the other evidence on file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, VA outpatient records dating since January 5, 2012 must be requested and associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO must attempt to retrieve all pertinent VA and private records that have not previously been added to the record, to specifically include mental health treatment notes dating from January 5, 2012 from the White River Junction VA Medical Center. All attempts to secure this evidence must be documented in the claims file. If the AMC/RO cannot locate these records, the AMC/RO must document the attempts that were made to locate them, and explain in writing why further attempts to locate or secure them would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to retrieve; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the AMC/RO must review the available record and consider whether there is evidence of a possible increase in the degree of disability caused by posttraumatic stress disorder. If an increase in disability is shown the AMC/RO must schedule the Veteran for an examination with a VA psychiatrist. The psychiatrist must be given access to the Veteran's claims folder and Virtual VA file, to include any newly obtained treatment records, for review. All indicated studies must be performed, and all findings should be reported in detail. In accordance with the latest worksheet for evaluating posttraumatic stress disorder, the psychiatrist must provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his PTSD since January 5, 2012. The psychiatrist must address the degree of social and industrial impairment resulting from PTSD alone. A full rationale must be provided for any opinion offered, with a complete discussion of the evidence of record. A global assessment of functioning score must be assigned reflecting the impact of PTSD alone, with an explanation of the significance of the score assigned. A written rationale must be provided for all opinions expressed. 3. The Veteran is notified that it is his responsibility to report for any scheduled VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. The AMC/RO should review the examination report to ensure that it complies with the directives of this remand. If it is deficient in any manner, the AMC/RO must implement corrective procedures. 5. After taking any further development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs