Citation Nr: 1327090 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-20 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. That rating decision granted service connection for PTSD and assigned an initial 10 percent rating. A subsequent rating decision in December 2011 increased the initial rating to 30 percent. The Board remanded the case for additional development in October 2012 and February 2013. As reflected in the February 2012 rating decision (contained in the Veteran's Virtual VA file), the RO bifurcated the issue of entitlement to a total disability rating based on individual unemployability (TDIU). FINDING OF FACT From January 24, 2013, there is competent evidence tending to establish PTSD is productive of occupational and social impairment, with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial 50 percent disability evaluation for PTSD, from January 24, 2013, have been met. 38 U.S.C.A. §§ 1154, 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). Duties to Notify and Assist The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private/VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in November 2012. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in July 2009, March 2011, and March 2013; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examiners reviewed the claim file and the rationales for the opinions provided are based on objective findings and reliable principles. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. He asserts that his symptoms are worse than reflected by the initial 30 percent rating assigned. Disability evaluations 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 evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate ratings for distinct periods of time, based on the facts are for consideration. In Fenderson v. West, 12 Vet. App. 119 (1999); see also See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). According to 38 C.F.R. § 4.126(a), a mental disorder shall be evaluated "based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." 38 C.F.R. § 4.126(a) (2012). Under Diagnostic Code 9411, the criteria for a 30 percent disability rating include: 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. 4.130, Diagnostic Code 9411 (2012). A 50 percent rating is warranted if the evidence shows 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 is warranted if the evidence shows 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 work like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if evidence shows 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; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In rating the severity of the Veteran's psychiatric disability under the criteria listed above, psychiatric health care providers have their own system for rating psychiatric disability. This is the Global Assessment of Functioning (GAF) rating scale, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF scale score assigned does not determine the disability rating VA assigns, but it is one of the findings employed in that determination. A GAF score ranging from 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning fairly well, with some meaningful interpersonal relationships. A GAF score ranging from 51 to 60 reflects 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 ranging from 41 to 50 indicate 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). The July 2009 VA examination report reflects the Veteran was able to maintain minimal personal hygiene and other activities of daily living. No impairment of thought process or communication was reported, and no inappropriate behavior was noted. No intent with respect to any suicidal and homicidal thoughts was reported. Although the Veteran complained of short-term memory loss, it was noted to be mild, and compensated for with reminders. No obsessive or ritualistic behavior interfering with routine activities was reported, and no panic attacks were noted. Speech was noted to be without any irrelevant, illogical, or obscure patterns. Although a July 2009 VA treatment record reflects a GAF score of 50, the July 2009 VA examination report reflects a GAF score of 65, based on clinical test results. Regardless, the GAF score assigned is only one factor to be considered and does not determine the disability rating the Board assigns. The objective findings reported on VA examination in July 2009 are not dissimilar from those reported in the July 2009 VA treatment records. For example, the July 2009 treatment records note the Veteran was alert and oriented, and speech was reported to be coherent, relevant, and goal directed. He was noted to be less anxious, angry, irritable, and depressed, and although hypervigilant, his affect was determined to be appropriate. He denied homicidal and suicidal ideation. Consistent with the findings reported in July 2009 are the findings reported on VA examination in March 2011 reflecting mild to moderate PTSD symptoms. The examiner reported that speech was normal and clear, and although complaints of daily depression and the emergence of panic attacks was noted, maintenance of personal hygiene and other basic activities of daily living were determined to be satisfactory. No obsessive or ritualistic behavior was noted. Although a blunted affect was reported, the examiner determined that the Veteran responded in a logical manner with no inappropriate behavior. Thought process was goal directed, and although some passive and fleeting suicidal thoughts were noted, no plan or intent was reported, and thought content was reported to be without suicidal or homicidal ideation. Memory impairment was determined to be mild, with immediate memory of 3/3, and free recall after a 5-minute delay with distraction. Although the March 2011 report of examination reflects impaired impulse control, it was noted that the Veteran was always able to avoid physically acting out and was never violent towards people or property, avoiding situations where he might get angry. Although anger was noted to contribute to social isolation, social functioning was noted to be only mildly to moderately impaired with little change since the VA examination in July 2009. To the extent that anger may have played a role in his most recent employer's decision to lay him off, the March 2011 examiner reported residual functional capacity included the ability to sustain adequate concentration, persistence, and pace to perform work tasks. It was determined that he possessed the capacity to maintain gainful employment. An October 2011 VA treatment record notes the Veteran was casually dressed, and although anxious, he was less angry. Speech was reported to be coherent, relevant, and goal directed. Mood was not irritable and a depressed affect was noted to be appropriate. The Veteran reported less depression, denied suicidal and homicidal thoughts and plans, and was alert and oriented. In a January 2013 report from the Veteran's VA psychologist, significant symptoms of PTSD were noted to impact interpersonal an occupational functioning. It was concluded that the Veteran would likely be severely impaired in a work environment that required frequent interactions with customers, co-workers, or a supervisor, as well one requiring the ability to sustain concentration and focus as normally found in a fast-paced work environment. It was determined that the Veteran would have substantial difficulty gaining and maintaining any employment other than possible a part-time job that allowed him to work completely on his own with limited stress, and even then, may still experience significant difficulties, at times. The March 2013 VA examiner concluded that PTSD symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Although generally functioning satisfactory with normal routine behavior, self care and conversation, the examiner agreed with the January 2013 opinion to the effect that the Veteran could only work in an isolated setting where he would not have contact with others. The criteria for both a 30 percent and 50 percent evaluation require occupational and social impairment and, resolving all doubt in the Veteran's favor, the Board finds the Veteran's PTSD symptoms more nearly approximate the criteria for a 50 percent rating, from January 24, 2013, the date of the report from the Veteran's private psychologist reflecting an increase in PTSD symptoms. 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). Prior to January 24, 2013, the Veteran did not manifest or nearly manifest the behavioral elements of 50 percent disability or higher. Although the RO increased the initial evaluation for PTSD to 30 percent based on the March 2011 VA examination report reflecting an increase in PTSD symptoms since 2009, the GAF score of 55 assigned in March 2011 is consistent with no more than moderate symptoms contemplated in the 30 percent evaluation assigned. The March 2011 VA examiner specifically noted that the GAF score assigned contemplated the Veteran's symptoms to include daily depression, anxiety, panic attacks, sleep disturbance, alcohol and cannabis dependence, social isolation, irritability, and tension. Prior to January 24, 2013, the objective evidence does not show occupational and social impairment with reduced reliability and productivity due to PTSD symptoms, such 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, impaired judgment, impaired abstract thinking, and disturbances of motivation and mood. The March 2013 VA examiner did not indicate panic attacks more than once a week, or near-continuous panic or depression affecting the ability to function independently, appropriately or effectively. No memory impairment was reported, and the examiner did not indicate any PTSD symptoms affecting speech. Although noted to be divorced, the report of examination reflects he lived with his girlfriend of 4 years. Although difficulties with sustained concentration were noted to be likely in the January 2013 report, no impaired judgment or thinking was indicated on VA examination in March 2013; a GAF score of 53 was assigned; and the examiner concluded that PTSD symptoms result in only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self care and conversation. Regardless, the 50 percent evaluation assigned in this decision, from January 24, 2013, contemplates impairment in earning capacity, including loss of some time from work with exacerbations of his PTSD. 38 C.F.R. § 4.1. The evidence establishes that there are not deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. See Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Accordingly, the criteria for a 70 percent rating have not been met. These same findings establish that PTSD is not manifested by total social and occupational impairment. The January 2013 letter from the Veteran's VA psychologist reflects that at least a part-time job is possible. There is no competent evidence of total occupational and social impairment. At no time during the appeal period is there competent evidence of gross impairment of thought processes or communication, and no documented instance of the Veteran being a danger to himself or others, let alone persistence of such danger. Although not bound by a Social Security Administration (SSA) determination, the Board has given consideration to the March 2012 SSA determination. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993). Although the March 2012 SSA notice of the determination states "You said you are unable to work because of: Ptsd, ischemic heart disease, bad back, aortic Valve Replacement," the March 2012 SSA determination reflects disability primarily due to peripheral vascular (arterial) disease and the secondary diagnosis was chronic ischemic heart disease. The Veteran is competent to report his symptoms during the appeal and the medical evidence lends credibility to his assertions that his symptoms are now worse. The evidence tends to establish reduced reliability and productivity due to PTSD symptoms and resulting in social and occupational impairment. At worst, the evidence subsequent to January 2013 is in equipoise, and resolving all doubt in the Veteran's favor, a 50 percent evaluation, but no higher, for PTSD is warranted, from January 24, 2013, and no earlier. The Board finds the Veteran does not manifest or nearly manifest the behavioral elements of 70 percent disability or higher. Thus, an evaluation in excess of 50 percent is not warranted at any time during the appeal. The evidence shows that the Veteran's service-connected PTSD results in 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), prior to January 24, 2013, and by occupational and social impairment with reduced reliability and productivity since that time; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The rating criteria for psychiatric disability contemplate the numerous manifestations of the Veteran's PTSD. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected PTSD is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER A 50 percent evaluation for PTSD, effective January 24, 2013, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs