Citation Nr: 1326860 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 13-13 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from September 1948 to April 1950 and from October 1950 to August 1951. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2005 the Veteran gave testimony at a hearing at the RO before a local hearing officer. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, however, TDIU consideration is not warranted. The Veteran has not indicated and the evidence has not shown that the Veteran is unable to gain or maintain employment due to his PTSD. 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 rating period on appeal, the Veteran's PTSD has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, family relations, and mood, due to such PTSD symptoms as impaired impulse control, near-continuous depression affecting the ability to function appropriately, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met during the entire rating period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify As the July 2006 rating decision granted service connection for the disability on appeal, that claim is now substantiated. As such, 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). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. The Board observes that as for rating the Veteran's PTSD, the relevant criteria have been provided to the Veteran, including in the August 2007 statement of the case. In September 2006 the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA records and private medical records. The Veteran has undergone VA examinations that addressed the matters presented by this appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations obtained in this case are adequate, as they considered the pertinent evidence of record, and included an examination of the Veteran and elicited his subjective complaints. The examinations described the Veteran's PTSD in sufficient detail so that the Board is able to fully evaluate the claimed disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the initial rating issue on appeal has been met. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Because the instant appeal is from the initial ratings assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the 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). Therefore, 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. Diagnostic Code 9411 addresses PTSD. Under that code, a 50 percent rating is appropriate when there is 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 and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating for PTSD is provided 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 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); inability to establish and maintain effective relationships. A 100 percent rating for PTSD is provided 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. §§ 4.125-4.130. The above symptoms are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect his level of occupational or social impairment. Id. at 443; 38 C.F.R. § 4.126. A Global Assessment of Functioning (GAF) rating 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 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994)). GAF scores ranging from 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores from 51 to 60 are indicative of 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). GAF scores from 41 to 50 reflect 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). Scores from 31 to 40 indicate 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). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the VA disability rating assigned. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995). It should be noted that use of terminology such as "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, also is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a percentage disability rating. 38 C.F.R. §§ 4.2, 4.6, 4.126. Before undertaking analysis, it is notable that the Veteran is service-connected for PTSD but not for such disorders as depression and alcohol dependence, which also have been diagnosed. 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. Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Board shall consider all psychiatric symptomatology to be attributable to PTSD. Doing so results in no prejudice to the Veteran since it means that the evidence in its entirety will be reviewed. A July 2006 rating decision granted the Veteran service connection for PTSD and assigned a 30 percent rating, effective December 27, 2005. A rating decision dated in November 2006 increased the rating for PTSD to 50 percent, effective august 23, 2006. A June 2010 RO decision determined that the Veteran's 50 percent rating for PTSD should be effective from December 27, 2005. Records indicate that the Veteran was diagnosed with depression and PTSD in 2005. The Veteran has been married since 1956 and has two children and some grandchildren. He retired in 1993 after having worked in automobile tire sales and repair since 1972. The Veteran's claim in this case was received by VA on December 27, 2005. During the appeal period the Veteran has received private and VA treatment for his mental health conditions and has undergone numerous VA psychiatric evaluations. Those evaluations have continued to show that the Veteran has PTSD with GAF scores fairly consistently being reported as 50. After reviewing the pertinent evidence of record, the Board finds that the evidence warrants a rating of 70 percent for PTSD for the entire appeal period. The evidence through the claims period on appeal clearly reflects, among other things, that the Veteran has more than just moderate deficiencies adjusting socially. The earliest PTSD VA examination of record (January 2006) noted that the Veteran had a markedly diminished interest or participation in activities and had a feeling of detachment or estrangement from others. The examiner stated that the Veteran's PTSD caused clinically significant impairment in his social functioning. While the Veteran noted he had been married 49 years, he stated that he himself did not have many friends. While in January 2006 the Veteran stated that he had a close relationship with his wife, at a February 2006 VA examination the Veteran described his relationship with his wife as "variable." Further, his wife indicated that the Veteran complained constantly about his bad temper. While the Veteran stated that he would kiss his children, he stated that he felt nothing but numbness when doing so. The February 2006 VA examiner assigned a GAF of 45, reflective of serious impairment in social functioning. The Veteran's serious problems in social functioning is clearly evident in his wife's February 2006 letter. In that letter the Veteran's wife stated that they had not slept together for years due to the Veteran's sleep history. She also indicated that "intimacy" had stopped years prior when the couple were in their late 50s. The Veteran's wife noted that the Veteran was always frustrated, often angry, uncomfortable around others, and was very withdrawn. The Veteran's wife said he would even decline to attend weddings and funerals, and she would have to attend such events by herself. Sadly, the Veteran's wife also stated that even the grandchildren could detect that the Veteran was angry with her. A July 2007 VA PTSD examination noted that the Veteran had complained that his relationship with his wife had deteriorated and was not what it had been the prior year. It was also noted that the Veteran had been having less social interaction in general and was having persistent symptoms of irritability or outbursts of anger. As recorded in a July 2008 VA PTSD examination, the Veteran's wife stated that his children would no longer visit due to the Veteran's behavior. The Veteran also stated that he had previously had one friend but that the friend had passed away. The July 2008 VA examiner assigned a GAF of 50, reflective of serious impairment in social functioning. The Veteran's serious impairment in social functioning is also demonstrated in the February 2010 VA PTSD examination wherein the Veteran stated he saw his kids less and less and essentially did not want to bother with them anymore. He again reiterated that he had no friends and would essentially spend his day watching television. The examiner noted that the Veteran's leisure activities were minimal while the arguments with his wife were increasing. The February 2010 VA examiner assigned a GAF of 50, reflective of serious impairment in social functioning. Private treatment records have also noted the social impairment resulting from the Veteran's PTSD. A November 2010 private record indicated that the Veteran's drinking had reached such a point that he presented on a voluntary commitment for alcohol withdraw and detoxification. In fact, the primary reason given by the Veteran for his voluntary commitment as related by the Veteran was that he had been having increasing difficulties with his wife. It was noted by the examiner that the Veteran was bored with his life. The Veteran's GAF at discharge was 50. Not only has the Veteran's serious social impairment in PTSD been evident from the beginning of the appeal, such as been clearly evident in the most recent evidence of record as well. In this regard, the Board notes that the January 2013 VA PTSD examiner indicated that the Veteran has stated that he did not see his kids anymore and denied having any close friends. He stated that he was always arguing with his wife. The January 2013 VA examiner continued to note that the Veteran exhibited a markedly diminished interest or participation in activities and had a feeling of detachment or estrangement from others, and that the Veteran's PTSD caused clinically significant impairment in his social functioning. Further, it was noted that the Veteran had difficulty in establishing and maintaining effective work and social relationships. The Veteran's GAF was 50. As for particular symptoms and criteria necessary for a 70 percent rating for PTSD under Diagnostic Code 9411, the Board notes that impaired impulse control has been essentially approximated, as the VA examiners and the Veteran's wife has observed that the Veteran has unprovoked or at least constant irritability or outbursts of anger. In this regard, while the details are not completely clear, the Veteran indicated at his February 2010 VA examination that he had become frustrated at a casino and had broken some glass on a machine after hitting it. The Veteran claimed that he was arrested. Panic attacks of more than once a week and depression have been consistently maintained and, while not specifically rising to the level of near-continuous panic, it appears that the Veteran's depression has been continuous and has clearly affected his ability to function appropriately and effectively. The Veteran does not attend life's major social events, which tends to demonstrate to the Board both that the Veteran has difficulty in adapting to stressful circumstances and that the Veteran also closely approximates an inability to establish and maintain effective relationships. While the Veteran's employment situation has not been a major part of this appeal as he retired approximately 15 years prior to filing this claim, the Board observes that the Veteran has indicated that he had preferred to work alone at his job in tire repair, thus showing some additional evidence of the Veteran's social isolation. In sum, the Board finds that the evidence warrants a rating of 70 percent for PTSD through out the appeal period since the receipt of his December 27, 2005 claim. In finding that the Veteran is entitled an initial rating of 70 percent for PTSD during the appeal period, the question now becomes whether the Veteran is entitled to an initial rating in excess of 70 percent for PTSD at any time during the appeal period. The Board observes that the evidence does not indicate that the Veteran has symptoms due to PTSD such as gross impairment in thought processes or communication. No formal speech or cognitive disorder has been suggested by any of the examiners, private or VA. Further, the Veteran has consistently denied having any delusions or hallucinations. While the Veteran has admitted to getting angry and frustrated at the casino, the Veteran's impulse control has not been characterized as being violent, and acts of violence have not been noted by examiners during the appeal period. In this regard, while the Veteran has indicated that he has had homicidal and suicidal thoughts, they have tended to be described as passive and the Veteran has indicated that he did not take such thoughts seriously. While the Veteran is withdrawn, there has been nothing resembling a pattern of grossly inappropriate behavior. The Veteran is clearly able to perform activities of daily living, and disorientation to time or place, or memory loss for names of close relatives, or poor hygiene has not been shown. While acknowledging the many difficulties that may exist, the fact remains that the Veteran has maintained a marriage of more than 50 years duration. Significantly, neither the Veteran nor any examiner has attributed the Veteran's retirement working in tire repair as having resulted from his PTSD. Thus, while August 2006 and March 2007 private examiners assigned a GAF of 30, and a GAF of 30 was noted at the time of the Veteran's November 2010 alcohol detoxification treatment, and while acknowledging that the Veteran's PTSD has significantly impacted his occupational functioning, total occupational and social impairment, due to the symptoms enumerated in Diagnostic Code 9411, has not been shown so as to warrant a rating of 100 percent for PTSD. In short, the preponderance of the evidence is against an initial rating in excess of 70 percent for PTSD. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his PTSD. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible and consistent in the reports of the symptoms he experiences. In fact, in reaching this decision, the Board has not disputed the Veteran's reports of his PTSD symptomatology. However, as with the medical evidence of record, the accounts of the Veteran's PTSD symptomatology are consistent with the rating currently assigned by this decision. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. At 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal is not one that is rated by analogy, but, instead, has been evaluated under the applicable Diagnostic Code, 9411, that has specifically contemplated the level of occupational and social impairment caused by service-connected PTSD. The Veteran's symptoms such as impaired impulse control, depression, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships are specifically enumerated under Diagnostic Code 9411. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to an initial rating of 70 percent, but no higher, for PTSD is granted throughout the time period on appeal, subject to the applicable law governing the award of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs