Citation Nr: 1324785 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-33 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1945 to December 1945. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado (RO). In that rating decision, the RO awarded service connection for PTSD and assigned a 10 percent evaluation, effective from July 27, 2009. By the way of a January 2013 rating decision, the RO increased the assigned evaluation for PTSD disability from 10 to 30 percent disabling, effective from July 27, 2009. As this grant is not for the total benefits sought, the claim for increase rating claim for PTSD disability remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the Virtual VA paperless claims processing system as well as the paper claims folder has been conducted in conjunction with the adjudication of the claim below. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the period under appeal, the Veteran's PTSD disability has been manifested by no more than sleep impairment, nightmares, recurrent thoughts, avoidance, and hyper-startled responses, which results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 30 percent for PTSD disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter dated in July 2009. This letter also included notice with respect to the effective-date element of the claim. The claim was subsequently adjudicated by the originating agency in October 2009. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his increased rating claims. Concerning VA's duty to assist, the Board notes that the VA has obtained the Veteran's service treatment records, post-service treatment records, and his testimony and lay statements. The Veteran was afforded VA psychiatric examination in October 2009. The examination report reflect that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical condition, and rendered appropriate diagnosis consistent with the remainder of the evidence of record. Furthermore, the examination report contain sufficient information to rate the Veteran's PTSD disability under the appropriate diagnostic criteria. The Board acknowledges the Veteran's contention that examiner who conducted his psychiatric examination was very abrupt and his examination lasted "at best 45 minutes." While the Board notes the Veteran's concerns on the manner in which the examination was conducted, upon review of the six pages, single spaced examination report, the Board finds that it is adequate for VA adjudication purposes. In this regard, the Board notes that the examination report is very thorough and detailed in regards to the Veteran's personal, occupational, social, and medical background. While the duration of the examination may have seemed short to the Veteran, it appears to the Board that the VA examiner was still able to create a very thorough and comprehensive report based on a review of the claims folder and interview with the Veteran. Thus, although the Board has considered the Veteran's concerns, the Board finds the October 2009 VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. In addition, the Veteran has not asserted, and the subsequent VA treatment records since October 2009 do not indicate, that the Veteran's PTSD disability has worsened. The Veteran has not sought any additional VA mental health treatment since his VA initial mental health intake in July 2009 and his subsequent VA primary care treatment records only reflect that he continues to take the same medication for his PTSD symptoms. This suggests that the Veteran's symptoms have continued at the same level as before, and not that they had increased in severity. Thus, while the Veteran's most recent VA medical examination occurred over four years ago, the examination is not stale as there is no evidence of record that his PTSD symptoms have increased in severity since that examination. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claims has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103. He has retained the services of a representative, and he declined the opportunity for a personal hearing before a member of the Board. Accordingly, the Board will address the claims on appeal. 2. Increased Rating Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 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. See 38 C.F.R. § 4.7. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) [holding, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"]. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (PTSD). Diagnostic Code 9411 is deemed by the Board to be the most appropriate because it pertains specifically to the primary diagnosed disability in the Veteran's case (PTSD). In any event, with the exception of eating disorders, all mental disorders including PTSD and bipolar disorder are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as the following. A 30 percent rating is warranted when psychiatric disability causes 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating may be assigned 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; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 from 61 to 70 reflect 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). See 38 C.F.R. § 4.130 (2011) [incorporating by reference the VA's adoption of the DSM-IV for rating purposes]. In this case, the Veteran seeks an evaluation in excess of 30 percent for his PTSD. He contends that his symptomatology is more severe than reflected by the criteria associated with his current assigned disability rating. A review of the claims folders shows that the Veteran first sought treatment for his PTSD symptoms in July 2009, after he received a positive finding on a PTSD screening questionnaire. Shortly thereafter, he was contacted by VA professionals from the mental health clinic and he underwent an initial mental health intake consultation. The July 2009 VA mental health clinic consultation note shows that the Veteran denied any history of suicidal or homicidal ideations and he denied any symptoms of hallucinations or delusions. He reported that he currently takes Trazodone for nightmares, which provides him some relief. He avoids crowds and he does not like to drive in traffic. The Veteran further reported that he socializes with his neighbors when he goes on his morning walks around the neighborhood and he has good relationship with his daughters and grandchildren. He had been married for 64 years and his wife has some memory problems. On mental status examination, the VA physician observed that the Veteran was appropriately dressed and clean appearance. He was cooperative and pleasant. The Veteran's memory, insight, and judgment were intact. He had euthymic affect and his mood was "O.K." The Veteran was assessed with possible PTSD and he was assigned a GAF scaled score of 65. It was noted that individual psychotherapy was offered, but the Veteran declined any further treatment. In October 2009, the Veteran was afforded a VA (QTC fee-based) psychiatric examination in conjunction with his claim for service connection for PTSD. In that examination report, the VA examiner noted that the Veteran described what he was experiencing as "shell shock" and he reported that he still has "problems." The Veteran complained of having nightmares four to five times a week, which have gradually increased over the last 15 years or so. He has hyper-startled responses to loud noises, he becomes nervous in large groups of people, and he avoids crowds. The Veteran denied ever having any suicidal or homicidal thoughts, but he reported that during his nightmares when he is reliving his combat experiences, he will feel homicidal urges towards the enemy. He denied any intent of harming others and he denied any history of assault or aggressive behavior towards others. He denied any hallucinations or delusions. He reported that he takes Trazodone to help him sleep with some relief. The Veteran stated that he interacts well with his family and he takes care of his wife, who has some signs of early dementia. The Veteran worked as a plumber for 35 years before retiring. On mental status examination, the VA examiner observed that the Veteran was dressed in clean, causal, and appropriate attired, and he was well groomed and cleaned shaven. He was cooperative and well-motivated in the interview. His speech, thought process, thought content, insight and judgment were intact. His mood was even and his affect displayed full range. The Veteran had no memory or concentration impairment, and he was oriented. Regarding the specific assessment for PTSD, the examiner found that the Veteran's primary PTSD symptoms included recurrent nightmares of combat, avoidance of crowds and moderate problems with hyper-startled responses. He maintains positive family relationships and social relationships with his neighbors. He has some decrease in quality of life from sleep impairment and nightmares, and he does experience some social restrictions by avoiding large groups of people. A diagnosis of PTSD, mild with delayed onset was given. The October 2009 VA examiner assigned the Veteran a GAF scaled score of 62. The VA examiner concluded that the Veteran's symptomatology did not affect his employment or his ability to care of himself and his wife. The VA examiner further concluded that the Veteran's PTSD disability is mild and manifested by decreased working efficiency and inability to perform occupational tasks only during periods of significant stress. Subsequent VA treatment records continue to show that the Veteran takes Trazodone for his PTSD symptoms. Here, the Veteran seeks an initial evaluation in excess of 30 percent for his PTSD disability. He asserts that his disability is manifested by symptomatology that is more severe than associated with his currently assigned evaluation. At the onset, the Board notes that a review of the record does not demonstrate that the Veteran's symptomatology had worsened to a level more severe than 30 percent disabling at any point during the period under appeal. As such, "staged" ratings are not warranted. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. See 38 C.F.R. § 4.1. Collectively, the aforementioned medical evidence reflects that throughout the appeal period, the Veteran's PTSD disability was manifested predominantly by symptoms no more severe than the following: sleep impairment, nightmares, recurrent thoughts, avoidance, and hyper-startled responses. The October 2009 VA examiner assessed the Veteran's PTSD symptomatology as mild and opined that his disability results in no more than decreased working efficiency and inability to perform occupational tasks only during periods of significant stress. The Veteran takes Trazadone for his PTSD symptoms, which does provide him with some relief. Overall, the Veteran's symptomatology does not support an evaluation in excess of 30 percent. See 38 C.F.R. § 4.130, Diagnostic Code 9411. At no point during the appeal period does the Veteran's overall PTSD symptomatology meet the criteria for a rating in excess of 30 percent. In this regard, the medical evidence does not show the Veteran to have circumstantial, circumlocutory, or stereotyped speech, panic attacks, 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, and impaired abstract thinking, or other symptoms that are characteristic of a 50 percent rating. Rather, the Veteran was cooperative and participated effectively during his examinations, he denied any suicidal or homicidal thoughts, and he has demonstrated that his speech, thought process, though content, judgment and his memory were intact. Although the Veteran has reported that he has difficulty in establishing and maintaining relationships, the Veteran has reported that he continues to socialize with neighbors while on his walks around the neighborhood, he has been married for over 64 years, and he has good family relationships with his daughters and grandchildren. In addition, throughout this period, the Veteran has been assigned GAF scaled scores of 62 and 65. As described above, a GAF scaled score between 61 and 70 is indicative of some mild symptoms or some difficulty in social, occupational, or school functioning, not severe symptoms which must be shown to warrant the 50 percent disability rating. The evidence of record does not support an evaluation of 50 percent for PTSD disability. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board also considered the Veteran's entitlement to a higher 70 or 100 percent disability rating. There is no indication of occupational and social impairment with deficiencies in most areas or total occupational and social impairment, as would be required by either higher rating. There is no evidence of suicidal ideation; obsessed 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships. Or any evidence of gross impairment in thought processes and communication or persistence danger of hurting self or others; nor is there persistent delusions and hallucinations, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives or own name. The evidence as shown above does not show the level social and occupational impairment as contemplated by the 70 or 100 percent schedular evaluations. In short, after a review of all the evidence of record, the Board finds that for the entire period under appeal, the objective medical findings of record does not demonstrate that Veteran's PTSD disability supports an evaluation in excess of 30 percent. The GAF scores assigned are also consistent with such a conclusion. At no point does the medical evidence show that his symptomatology warrants an assignment of the next higher, 50 percent, rating for PTSD (and does not approximate those criteria). Accordingly, an increased disability rating in excess of 30 percent is not warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Other Considerations The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b) (1). The United States Court of Appeals for Veterans Claims has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board 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 extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for his PTSD and that the manifestations of his symptomatology are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of the issue of entitlement to a higher rating for PTSD for extra-schedular consideration is not in order. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Here, while the record shows that the Veteran retired from his previous employment as a plumber, he has not argued, and the record does not otherwise reflect, that his PTSD renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to an evaluation in excess of 30 percent for PTSD is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs