Citation Nr: 1325449 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-39 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating in excess of 50 percent for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from August 1979 to July 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By that rating action, the RO granted service connection for PTSD; an initial 30 percent disability rating was assigned, effective October 17, 2005--the date VA received the Veteran's initial claim for compensation for this disability. The Veteran appealed this rating action to the Board. In a January 2012 decision, the Board awarded an initial 50 percent disability rating to the service-connected PTSD. In granting the 50 percent rating, the Board also determined that the criteria for a 70 percent rating for the service-connected PTSD had not been met. (See January 2012 Board decision, pages (pgs.) 11, 12)). The Veteran appealed the Board's denial of a 70 percent rating for the above-cited disability to the United States Court of Appeals for Veterans Claims (CAVC). In a July 2012 Order, CAVC vacated the Board's decision to the extent that it denied a rating in excess of 50 percent for the service--connected PTSD and remanded the appeal to the Board for development consistent the Joint Motion for Remand (JMR) agreed to by the Secretary of Veterans Affairs and the Veteran's Counsel (Parties). FINDING OF FACT For the entire appeal period, the evidence reflects that the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas and an inability to establish and maintain effective relationships but without evidence of total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an initial schedular evaluation of 70 percent for service-connected PTSD have been met for the entirety of the appeal period extending from October 17, 2005. 38 U.S.C.A. §§ 1155, 5103, 5013A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). I. Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Concerning the initial rating claim on appeal, the Board finds that it arose from the Veteran's disagreement with the RO's assignment of an initial 30 percent rating assigned after the grant of service connection for PTSD. (See April 2007 rating action). VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003. The filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(3). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case if the disagreement concerning the downstream issue is not resolved. Since the RO issued a statement of the case in an October 2008 addressing the downstream initial rating claim on appeal, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). The Board also notes that in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009), the United States Court of Appeals for Veterans Claims (Court) clarified VA's notice obligations in increased rating claims. As the claim for an initial rating in excess of 50 percent for the service-connected PTSD stems from the grant of initial compensation benefits, as opposed to an increased rating claim, Vazquez- Flores is inapplicable to this claim. Id. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's service treatment records, and VA and private treatment records with the claims file. No outstanding evidence has been identified. In fact, the Veteran and her representative indicated in a written statement, received by VA in January 2013, that they did not have any additional evidence to submit in support of the appeal. In addition, the VA examinations are adequate for evaluation purposes because the examiner either reviewed the claims file or was otherwise "informed of the relevant facts," including the history of the disability from information obtained from the Veteran, considered the contentions of the Veteran, and addressed the relevant rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. II. Laws and Regulations Increased Rating-general criteria Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). When the appeal arises from an initial rating, such as here, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in increased-rating claims in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). Psychiatric rating criteria By the appealed April 2007 rating action, the RO granted service connection for PTSD. The RO assigned an initial 30 percent disabling rating under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective October 17, 2005--the date VA received the Veteran's initial claim for compensation for this disability. In a January 2012 decision, the Board awarded an initial 50 percent disability rating for the service-connected PTSD for the entire appeal period. By a February 2012 rating action, the RO effected the Board's decision. (See February 2012 rating action uploaded to the Veteran' s Virtual VA electronic claims file). The psychiatric symptoms listed in the rating criteria below are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the general rating formula for mental disorders, a 50 percent evaluation envisions 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 evaluation envisions 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; 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 worklike setting); and an inability to establish and maintain effective relationships. Id. A 100 percent schedular evaluation is warranted when 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 of names of close relatives, own occupation, or own name. Id. According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM- IV), which VA has adopted, under 38 C.F.R. §§ 4.125 and 4.130, a Global Assessment of Functioning (GAF) score of 61 to 70 denotes mild symptoms or some difficulty in social and occupational functioning. A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates serious symptoms or a serious impairment in social, occupational, or school functioning. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). III. Procedural and Factual Background The Veteran seeks an initial rating in excess of 50 percent for her PTSD. She maintains that her service-connected PTSD symptoms are more severely disabling than those reflected by the currently assigned 50 percent rating. As noted above, by the appealed April 2007 rating action, the RO granted service connection for PTSD. The RO assigned an initial 30 percent disabling rating under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective October 17, 2005--the date VA received the Veteran's initial claim for compensation for this disability. The RO, based its decision, in part, on the Veteran's service personnel records. These records shows that the Veteran, in her duties as a medical specialist, had participated in the triage of 114 patients who were casualties of a plane crash at Pope Air Force Base. The RO also based its decision on November and December 2005 private and VA treatment and examination reports, respectively, reflecting that theVetearn had PTSD due to the in-service plane crash. In a January 2012 decision, the Board awarded an initial 50 percent disability rating for the service-connected PTSD for the entire appeal period. The RO effectuated the Board's decision in a February 2012 rating action. (See February 2012 rating action uploaded to the Veteran's Virtual VA electronic claims file). Turning to the merits of the claim, the Veteran's claims file includes a September 2005 report, prepared by L. G., M. A., L. P. A. showing that the Veteran had been diagnosed with PTSD. During the assessment, the Veteran reported that her PTSD was manifested by the following: frequent intrusive thoughts; flashbacks; traumatic nightmares; avoidance of conservations about her military experiences; detachment from others; increased irritability; problems with memory and concentration; hypervigilance; anxiety; an exaggerated startle response; and severe sleep problems. She stated that she avoided listening to the news or watching stories of war. Additional symptoms were reported as difficulty trusting others and difficulties with intimate relationships; she stated that she often preferred to spend time alone. The Veteran also stated that she felt anxious and sad at times and that she lack energy and confidence. On the mental status examination in September 2005, the Veteran was of normal dress and soft spoken. She was oriented in three spheres. Her mood was dysphoric and she demonstrated some marked anxiety and a flat affect. The Veteran's judgment and insight were fair and her thought process was linear. Her speech was slowed at times. The examination was negative for current suicidal or homicidal ideations. Her GAF score was 38. L. G. commented that the Veteran's symptoms interfered significantly (italics added for emphasis) in her personal, social, and professional life. She explained that the Veteran was severely compromised in her ability to initiate or sustain social relationships. L. G. also concluded that her affective instability and lack of concentration undermined her ability to learn new tasks or be productive. L G. determined that the Veteran was severely compromised in her ability to sustain work relationships. (See September 2005 report, prepared by L. G., M. A., L. P. A.). In November 2005, L. G., M. A. saw the Veteran for a follow-up consultation. She continued to report having considerable difficulty sleeping and experiencing nightmares. She stated that her nightmares left her feeling anxious and unable to focus on tasks. The Veteran indicated that that she had to withdraw from two of her classes due to problems with concentration and memory. The Veteran continued to struggle with self-confidence, which the examiner stated undermined her ability to make plans for the future. Physical limitations caused by neck pain also contributed to her depressed mood. Her GAF score was 38. L G. reiterated her previous determination that the Veteran's PTSD and depressive symptoms had interfered significantly (italics added for emphasis) in her personal, social, and professional life. Because of the severity and chronicity of her symptoms, L. G. determined that the Veteran's prognosis for recovery was poor. (See November 2005 report, prepared by L. G., M. A., L. P. A.). VA examined the Veteran to determine the severity of her PTSD in December 2005. At the examination, the Veteran reported that her psychiatric symptoms began fourteen years prior. Her symptoms were reported to include: difficulty sleeping; nightmares four to five times per week; flash backs of combat activity; sweating; screaming; difficulty focusing; and avoidance of thoughts, feelings, conversation, activities, places, or people associated with her military trauma. She stated that her symptoms occurred constantly and that her ability to perform daily functions during remissions/partial remission was fair. The Veteran reported that she was enrolled part-time in college and that she had good relationships with prior supervisors and coworkers. She also stated that she had a good relationship with her parents and siblings. However, the Veteran reported that because of her psychiatric disorder she tended to avoid social situations as much as possible. She indicated that she had flashbacks of in-service traumatic events, exhibited avoidance behaviors, and avoided watching the news. The Veteran expressed a persistent sense of a foreshortened future, as she expressed her belief that she would die young. She also stated that she felt apart from others. She also expressed having persistent irritability or outbursts of anger and stated that she was angered "by the least little thing." A mental status examination of the Veteran in December 2005 revealed that the Veteran presented with appropriate appearance and hygiene. She was oriented and her behavior and eye contact were appropriate. The Veteran presented with a flat affect and an abnormal mood. Her communication and speech were within normal limits. She reported having panic attacks as often as six times per month; she stated that the attacks caused her to sweat and urinate on herself. The examination was negative for a history of delusions or evidence of obessional rituals. However, the Veteran reported a history of hallucinations, intermittently; at the time of the examination, there were no hallucinations observed. The Veteran's thought processes were appropriate; her judgment was impaired; and her abstract thinking was normal. Her memory was mildly impaired, as she forgot names, directions, and recent events. There were no reports of suicidal or homicidal ideations. Following the examination, the Veteran was diagnosed with PTSD. Her GAF score was 60. The VA examiner commented that the Veteran did not have difficulty performing activities of daily living and that she was able to establish and maintain effective work and social relationships. He further commented that the Veteran had no difficulty understanding commands and that she did not appear to pose a threat of danger or injury to herself or others. (See December 2005 VA examination report). IV. Mittleider Concerns The Veteran's overall psychiatric symptomatology is the result of his service-connected PTSD, as well as depressive disorder, not otherwise specified (NOS) (See September and November 2005 reports, prepared by L. G. M. A., L. P. A.). The Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The above-cited clinician concluded that the Veteran's PTSD and non-service-connected depressive symptoms had significantly interfered in her personal, social and industrial life. However, without there being any clear medical opinion delineating the symptoms, and resolving all doubt in her favor, the Board will attribute all of the Veteran's psychiatric symptoms to her service-connected PTSD residuals. V. Merits Analysis The Board finds that the competent evidence of record supports an award of an initial 70 percent disability rating for PTSD for the entire appeal period, beginning on October 17, 2005. The Board finds that in affording the Veteran all reasonable doubt in her favor, the evidence as a whole in at least in equipoise that from as early as October 17, 2005, if not earlier, the Veteran has exhibited significant social and industrial impairment, primarily manifested by social isolation, monthly panic attacks that are accompanied with self-urination and sweating, abnormal mood, intermittent hallucinations (i.e., seeing white visions), "affective instability," and lack of concentration. Aside from the December 2005 VA examiner, who assigned the Veteran a GAF score of 60, which is indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. the Veteran's treating licensed psychological associate, L. G., affirmatively concluded that the Veteran's PTSD symptoms, such as "affective instability" and lack of concentration, had caused her to be "[s]everly compromised" in her ability to initiate or sustain social and work relationships such that they had undermined her ability to learn new tasks or to be productive. The severity of the Veteran's PTSD symptoms at her September 2005 interview by L. G. were reflected in her receipt of a GAF score of 30, a score that is indicative of indicative of behavior which is considerably influenced by delusions or hallucinations or serious (italics added for emphasis) impairment in communication or judgment or inability to function in almost all areas. (See September 2005 report, prepared by L. G., M. A., L. P. A., and December 2005 VA examination report). In a follow-up report, dated in November 2005, L. G., M. A. unequivocally opined that the Veteran's PTSD and depressive symptoms had significantly (italics added for emphasis) interfered in her social and professional life and because of their severity and chronicity, her prognosis was poor. In view of the foregoing, the Board finds that the Veteran's symptoms associated with her service-connected PTSD are sufficient to warrant a 70 percent disability rating for the appeal period in light of occupational impairment and work deficiencies and significant social impairment, primarily manifested by social isolation, for the entire appeal period, beginning on October 17, 2005. The Board has also considered whether the assignment of the next higher rating of 100 percent is warranted for the service-connected PTSD. The Board finds that the preponderance of the competent and probative evidence of record is against an initial rating of 100 percent for the service-connected PTSD. The evidence does not indicate that the Veteran suffers significantly from any of the symptoms that may be associated with total occupational and social impairment. While she has not remained employed during the appeal period, she reported having enrolled in courses at a local university in May 2007. (See VA Form 21-8940, Compensation Based on Unemployability, dated and signed by the Veteran in May 2007) In addition, the Veteran has not exhibited any of the other objective symptoms that may be associated with the symptoms listed in the criteria for a 100 percent evaluation. Specifically, there is no evidence of the Veteran exhibiting behavior of having a distorted view of reality, such as: persistent delusions or hallucinations (the Veteran reported having intermittent hallucinations); gross impairment in thought processes or communication; inability to maintain minimal personal hygiene; disorientation to time, place, or own person; and is otherwise not shown to be a danger to herself or others. Rather, in view of his ability to engage in behavior acceptable to return to college to resume her educational studies and at least minimal activities of daily living, the Veteran is far more appropriately evaluated at the 70 percent rate for the appeal period. Given the consistency of the findings as to severity during the pendency of this appeal, there is no basis for "staging" this evaluation pursuant to Fenderson. VI. TDIU Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), 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. The RO awarded the Veteran TDIU in a March 2008 rating action; thus, the issue is moot. VII. Extraschedular Consideration In evaluating the Veteran's claim for a disability rating in excess of 70 percent for the service-connected blistering PTSD, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected PTSD is inadequate. A comparison between the level of severity and symptomatology of this disability, with the established criteria found in the rating schedule, shows that the rating criteria reasonably describe this disability under the applicable schedular criteria, as discussed in the preceding analysis. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that that the Veteran has required any hospitalizations for her PTSD. There is no persuasive evidence in the record to indicate that this disability would cause any impairment with employment over and above that which is already contemplated in the assigned 70 percent schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 (2012) specifically sets out that "[g]generally, the degrees of disability specified 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected PTSD has resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disabilities contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER An initial disability rating of 70 percent, but no higher, for PTSD from October 17, 2005 is granted subject to the laws and provisions governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs