Citation Nr: 1326951 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-07 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Evaluation of posttraumatic stress disorder (PTSD) and depressive disorder, rated 30 percent disabled prior to December 29, 2010. 2. Evaluation of PTSD and depressive disorder, rated 50 percent disabled from December 29, 2010 to March 18, 2013. 3. Evaluation of PTSD and depressive disorder, rated 70 percent disabled from March 19, 2013. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served from August 1971 to September 1975, from May 1995 to November 1995, and from December 2001 to December 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). While increased evaluations have been assigned during the appeal period, as they do not represent a full grant of the maximum benefit available, the appeal, now characterized as three separate issues, remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran was afforded a Travel Board hearing in April 2012 before the undersigned. The transcript is of record. A review of the Veteran's virtual claims files reveals only evidence that is duplicative of that already contained in the paper claims file or irrelevant to the claims decided herein. The Veteran's claims were previously before the Board and remanded in October 2012. As all directed development has been conducted, as will be discussed in greater detail below, the claims are properly before the Board at this time. FINDING OF FACT Throughout the appeal period, PTSD and depressive disorder are productive of occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 70 percent for PTSD and depressive disorder, prior to December 29, 2010 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9434-9411 (2012). 2. The criteria for an evaluation of 70 percent for PTSD and depressive disorder, from December 29, 2010 to March 18, 2013, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9434-9411 (2012). 3. The criteria for an evaluation in excess of 70 percent for PTSD and depressive disorder, from March 19, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9434-9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The claim for a higher rating for PTSD and depressive disorder arises from the Veteran's disagreement with the rating assigned in connection with the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-7 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained all VA, Vet Center, and private records identified by the Veteran. In addition, the Veteran was afforded VA examinations in January 2009, December 2010, and March 2013. The examinations were conducted by medical professionals who solicited symptomatology from the Veteran, conducted thorough examinations, and provided rationales for any conclusions given. They are, therefore, adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). During the April 2012 Board hearing before the undersigned, the Veteran was informed that it was incumbent upon him to submit any potentially relevant evidence in his possession in support of his claims and his file was left open for 30 days in order to allow him time to submit additional evidence. Evidence from the Vet Center was discussed and it was agreed that these records would be obtained. In addition, the Veteran agreed to submit written statements from people in his life and indicated that, otherwise, there was no relevant evidence. This action provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). As directed in the October 2012 Board remand, a VCAA notice letter was sent to the Veteran in October 2012. In addition, the records from his treatment at the Vet Center and the VA facility in Denver were obtained. Therefore, the RO has complied with the directives contained in the Board's remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for higher evaluations for PTSD are thus ready to be considered on the merits. II. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As will be discussed in more detail below, the Board finds that the disability has remained essentially consistent in severity throughout the appeal period, and a uniform rating is warranted. The Veteran is in receipt of 30, 50, and 70 percent ratings for PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Codes 9434-9411. These Diagnostic Codes address major depressive disorder and PTSD. However, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 30 percent rating requires a showing of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). When the symptoms attributable to a service-connected disability cannot be separated from those attributable to a non-service-connected disability, all symptomatology should be considered in determining the appropriate rating, and that has been done here. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). The GAF (Global Assessment of Functioning) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF score of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 denotes 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 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. At the outset, the Board finds that the March 2013 VA examination is the most thorough of record, reporting the specific symptomatology attributable to the Veteran and describing in detail the manifestations reported by the Veteran. The examiner was specifically asked to provide an opinion as to which rating criteria applied to the severity of the Veteran's PTSD and determined that those were the criteria associated with a 70 percent evaluation. Furthermore, his symptomatology complaints and assigned GAF scores (57 in January 2009, 56 in December 2010, and 52 in March 2013) were essentially the same on all examinations and in all treatment records, which included sleep impairment, social isolation, depression, irritability, and problems with social and occupational relationships. As such, a 70 percent rating is assigned throughout the appeal period and, to this extent, the Veteran's claim is granted. However, the Board concludes that none of the lay or medical evidence of record suggests that a 100 percent schedular rating is warranted at any time during the appeal period. The Veteran has never demonstrated total occupational and social impairment. While he has described it as difficult during his October 2012 Board hearing, he has maintained a relationship with his wife for twenty years. He also continued to keep in contact with his two grown sons, even though they have had difficulties with their relationships in the past. This level of impairment of family relationships is contemplated by the 70 percent rating assigned. The Veteran also reported that he had a few friends in the Native American community, of which he was a member. However, he did not socialize in large groups or gatherings. The Veteran was no longer working and had medically retired, but the VA examiner in December 2010 opined that the Veteran would be able to do some work that did not require constant contact with other people. His thinking, judgment, and communication were always noted to be normal and intact in all VA examinations and outpatient treatment records. The Veteran continuously denied the presence of delusions or hallucinations in all reports of symptomatology. He never demonstrated and specifically denied the presence of any inappropriate behavior in January 2009. The Veteran routinely denied the presence of suicidal or homicidal ideation with one exception of reporting irritable and homicidal thoughts during his Board hearing. He was consistently found in all outpatient and examination reports to be able to maintain his activities of daily living and has never contended otherwise. The Veteran maintained his personal hygiene. All examinations show that the Veteran was oriented in all spheres at all times. The Veteran demonstrated and complained of some short-term memory, but there is no lay or medical evidence of any long-term memory loss or memory loss with regard to vital information such as names of himself or close relatives or his occupation. In short, the Veteran has not demonstrated any of the symptoms associated with a 100 percent rating and has never been shown to manifest total occupational and social impairment. The lowest GAF score assigned is 47 in November 2010, which is compatible with the 70 percent rating currently assigned to the Veteran's PTSD. All other GAF scores are in excess of that number and denote functioning that is better than the criteria associated with a 100 percent evaluation. The Board has also considered whether referral for extraschedular consideration is suggested by the record. There is neither evidence nor allegation of symptoms of and/or impairment due to the service-connected disability that are not encompassed by the schedular rating assigned. The Veteran was employed full-time until February 2010, and a VA examiner opined that he would be able to maintain some isolated employment with his current symptomatology. The level of impairment caused by the Veteran's PTSD on his employment is contemplated by the 70 percent rating, with a higher rating for additional impairment. There is also no allegation or suggestion that can be implied from the evidence that the schedular rating criteria do not fully comprehend the Veteran's impairment. The functional impairment shown is fully encompassed by the schedular rating criteria. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). As such, the Board concludes that the evidence supports a disability rating of 70 percent for PTSD throughout the appeal period. However, the preponderance of the evidence is against assignment of a rating higher than 70 percent for PTSD, and, to that extent, the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An evaluation of 70 percent for PTSD, prior to December 29, 2010, is granted, subject to the laws and regulations governing the payment of VA benefits. An evaluation of 70 percent for PTSD, from December 29, 2010 to March 18, 2013, is granted, subject to the laws and regulations governing the payment of VA benefits. An evaluation in excess of 70 percent for PTSD, from March 19, 2013, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs