Citation Nr: 1325065 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 08-09 888A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased rating for post traumatic stress disorder (PTSD), rated 50 percent disabling until January 15, 2011, and 70 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1968 to October 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in part, denied a rating in excess of 50 percent for PTSD. In April 2010, a travel board hearing was held before the undersigned in Chicago, Illinois. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in December 2010. Following a VA examination ordered in that remand, the rating for the Veteran's PTSD was increased to 70 percent disabling, effective January 15, 2011. The Veteran continues to express dissatisfaction with the PTSD ratings, and they are less than the maximum under the applicable criteria, so they remained on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In an April 2012 decision, the Board, in part, denied increased ratings for PTSD, in excess of 50 percent prior to January 15, 2011, and in excess of 70 percent thereafter. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a November 2012 Order, following a Joint Motion for Remand (JMR). The parties requested that the Court vacate the Board's decision regarding the denial of increased ratings for PTSD so that the Board could provide adequate reasons and bases for the determinations. The Court granted the joint motion and remanded the case to the Board. FINDINGS OF FACT 1. For the rating period prior to January 15, 2011, the Veteran's PTSD was primarily manifested by depression, anxiety, and complaints of flashbacks triggered by certain stimuli was productive of difficulty in establishing and maintaining effective work and social relationships. 2. For the rating period from January 15, 2011, and thereafter, the PTSD was primarily manifested by sleep disturbances with memories, recollections, flashbacks, and nightmares related to Vietnam; anger; mood swings; depression; hypervigilance; and a hyperstartled mental state that are productive of deficiencies in most areas of industrial and social adaptability. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 50 percent for PTSD was not been met prior to January 15, 2011 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code (Code) 9411 (2012). 2. The criteria for an increased rating in excess of 70 percent for PTSD have not been met for any period subsequent to January 15, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A November 2005 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The Veteran has had ample opportunity to respond or supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded a VA medical examination, most recently in January 2011. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2011). Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the 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 (2011). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2011). The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to 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). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Rating PTSD The Veteran contends that his service-connected PTSD is more disabling than currently evaluated. During the April 2010 Board hearing before the undersigned, the Veteran related symptoms of his PTSD, including irritability, panic attacks three or four times per week, and anger management issues. He also related that he had occasional suicidal thoughts and that he was no longer working as a result of his PTSD. Service connection for PTSD was granted by the RO in a December 19969 rating decision. A 30 percent initial disability rating was awarded under the provisions of Code 9411 from the date of claim. The rating was increased to 50 percent by the RO in an April 2005 rating decision. The continuance of the 50 percent rating by rating decision in October 2006 gave rise to this appeal. The rating was increased to 70 percent, effective January 15, 2011, by rating decision dated in October 2011. It is noted that, as of January 15, 2011, the Veteran was found to be entitled to a total rating by reason of individual unemployability due to service connected disabilities (TDIU). A psychiatric examination was conducted by VA in August 2006. At that time, it was noted that the Veteran continued to have symptoms of PTSD, including nightmares, dreams, and flashbacks of combat activities. He related having a recent episode of attending a music concert at night, when the nose, trees, weather and darkness reminded him of Vietnam. He stated that he became very anxious and hyper-agitated and had to leave the concert immediately. This is one of numerous examples of flashbacks that he gave the examiner. He reported difficulty dealing with noise such as on the Fourth of July and stated that he was in treatment at the VA on an outpatient basis for his PTSD. He used medications. On mental status evaluation, he was casually dressed, pleasant and cooperative. He answered questions appropriately. Affect was depressed. Mood was anxious. He denied suicidal, homicidal, or psychotic thoughts. Judgment was intact. Insight was limited. He had good cognitive functions. It was noted that there had been no major changes in the frequency, severity and duration of his PTSD symptoms since the last psychiatric examination, which had been performed by the same examiner in February 2005. He had lost a few hours from work due to his symptoms. There was no impairment of thought process, social functioning, or post-military stressors or with his normal activities of daily living. The diagnosis was chronic PTSD. A Global Assessment of Functioning (GAF) score was not provided, although the examiner stated that the GAF score reflected the impact of PTSD on his social life. It is noted that the February 2005 examination report, by the same examiner, included a GAF score of 44 reflecting the impact of the PTSD on his inability to connect and socialize with people causing him to be totally isolated outside of his work. VA outpatient treatment records show that, in May 2005, the Veteran had run out of his medications and now had complaints of severe nightmares and insomnia as well as anger and homicidal ideation. His medications were renewed. In February 2008, it was noted that the Veteran had stopped attending individual appointments. His most recent GAF score had been assigned in February 2006 and was listed as 45. He was evaluated in April 2008 when it was reported that he was working for the City of Chicago, but was on leave for the past three months. He believed that he would be returning to work shortly. Mental status evaluation showed him to be alert, attentive, and oriented in three spheres. There were no perceptual disturbances, except that he occasionally thought that he saw a friend who had died in combat. His mood was depressed. There were no delusions or obsessions, but the Veteran did note suicidal and homicidal ideation, flashbacks, and hypervigilance. The pertinent diagnosis was PTSD, with a GAF score of 45. The Veteran was re-started on his medications. A psychiatric examination was conducted on January 15, 2011. At that time, it was noted that the Veteran continued to have sleep problems and woke up 2 to 3 times per night with memories, recollections, flashbacks, and nightmares related to Vietnam. His made him angry. He had mood swings and depression. He often checked the windows and doors before sleeping or when he woke up at night, showing hypervigilance and a hyperstartled mental state. He was isolated and did not trust people. He stated that he liked to be by himself. He had been seeing VA medical care providers for psychotherapy, but had stopped seeing them about six months before. He did plan on returning to therapy. On mental status evaluation, he was alert and oriented to time, place and person. Affect was depressed and mood was anxious. There were no suicidal or homicidal ideations and no delusions, or hallucinations. Memory was decreased and insight was limited. Judgment was intact. He stated that he had lost many hours from work as a result of his PTSD symptoms. There was no impairment of thought processes or social functioning. The diagnosis was PTSD. The GAF score assigned was 47, reflecting a significant impact on employability. The examiner stated that the Veteran's PTSD rendered the Veteran unable to follow gainful employment due to severe vigilance, hyperstartledness, anger issues and inability to concentrate. 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 ideations; 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 as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or worklike settings); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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, Code 9411. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, 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 diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The U.S. Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 21 to 30 reflects that behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). A score of 31-40 is assigned where there is "[s]ome 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)." DIAGNOSTIC AND STASTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 41-50 is assigned where there are "[s]erious 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 is appropriate where there are "[m]oderate 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 61 to 70 reflect mild symptoms (e.g., depressed mood and mile insomnia) or difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household). Id. Prior to January 15, 2011, the Veteran's PTSD was primarily manifested by depression and anxiety, with complaints of flashbacks that were triggered by certain stimuli (such as the concert he had attended or Fourth of July fireworks.) On examination in 2006, it was noted that his social life was impacted by his PTSD, but that he had only lost a few hours of time from work due to this disability. The Board finds that the previously assigned GAF score of 44 remained, which is productive of serious symptoms. As the examiner stated that the primary impact was on his social life, the Board finds that this is compatible with the Veteran relating that he did not have friends. The VA outpatient treatment records described show that these symptoms continued but that the Veteran had continued to work. In this case, the Board finds that these symptoms cause reduced social and industrial reliability, but are not productive of impairment with deficiencies in most areas, which is required of a 70 percent rating. The Board finds it significant that the examiner in August 2006 described the Veteran's PTSD as causing no impairment of thought process, social functioning, or with his normal activities of daily living. Records of treatment that are available prior to the January 2011 VA examination also showed that the Veteran was able to function, and that he believed himself able to continue to work. For this reason, the Board does not find that a rating in excess of the assigned 50 percent rating was warranted prior to January 15, 2011. As of January 15, 2011, the Veteran's PTSD was shown to cause sleep disturbances with memories, recollections, flashbacks, and nightmares related to Vietnam. He also manifested anger, mood swings, depression, hypervigilance and a hyperstartled mental state. It was significantly noted that these symptoms caused the Veteran to lose many hours from work. The deficiencies in most such as work became the basis for the RO award of the 70 percent rating as of that date. For a schedular rating in excess of 70 percent, the Veteran would have to manifest symptoms that cause total occupational and social impairment, which was not demonstrated on the VA examination report. In this regard, the Board notes that the Veteran was alert, oriented and able to relate to the examiner. He showed no delusions, impairment of thought process, hallucinations or delusions. In fact, the Veteran did not exhibit any of the symptoms specified as examples of total psychiatric impairment. This is not to say that the Veteran's PTSD does not render him unable to obtain substantially gainful employment, which is the standard for TDIU that was awarded effective on January 15, 2011. Moreover, the GAF score of 47 is not indicative of impairment in reality testing or communication that are illogical, obscure or irrelevant or of major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. As noted above, these symptoms, which are more in line with a 100 percent schedular rating, would be reflected by a GAF score of 40 or less. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased schedular rating for PTSD, in excess of 50 percent prior to January 15, 2011, and in excess of 70 percent thereafter, and the claims must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board has considered whether an extraschedular evaluation would have been warranted for PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has manifested anxiety, depression, hyperstimuli, and flashbacks. These symptoms are part of the schedular rating criteria. In addition, the level of occupational and social impairment are explicitly part of the schedular rating criteria for each of the assigned evaluations. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. Moreover, all the Veteran's psychiatric symptomatology is contemplated by the schedular rating criteria, which rates by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Veteran has been found to be eligible for TDIU so that this matter is not for consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An increased rating for PTSD in excess of 50 percent prior to January 15, 2011, is denied. An increased rating for PTSD in excess of 70 percent since January 15, 2011, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs