Citation Nr: 1327427 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 10-08 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active military service from July 1969 to July 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center (AMC), in Washington, DC that granted service connection and assigned an initial 50 percent disability rating for PTSD, effective August 20, 2003. This case was previously before the Board in January 2012 and was remanded for additional development. In December 2010 the Veteran was afforded a hearing before a Veterans Law Judge (VLJ) that is no longer employed by the Board. Consequently, in November 2012 the Board advised the Veteran by letter that the law requires that the VLJ who conducts a Board hearing on appeal must participate in any decision on that appeal. 38 C.F.R. § 20.707 (West 2002). In November 2012 the Veteran indicated that he did not want another hearing on this matter. 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). During the course of this appeal, in September 2010, the Veteran was denied entitlement to a TDIU and he did not file a notice of disagreement in response to that decision. As such, the issue of entitlement to a TDIU is not before the Board. 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 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies in the instant case. Duty to Notify As the September 2007 rating decision granted service connection for PTSD, that claim is now substantiated. 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 SOC if the disagreement concerning the downstream issue is not resolved. And since the RO issued an SOC in January 2010 addressing the downstream increased rating claim, 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). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran's Social Security Administration (SSA) records are also associated with the claims file. No outstanding evidence has been identified that has not otherwise been obtained. Indeed, as a part of the January 2012 Remand, updated VA medical records were procured. The Veteran has undergone adequate VA examinations that addressed the matters presented by this appeal. To that end, 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 aforementioned examinations were thorough, and well reasoned, and took into account the Veteran's personal history/complaints. The Board therefore finds that the examinations were adequate for rating purposes. During the December 2010 Board hearing, to assist the Veteran, the VLJ asked questions to determine if there was any evidence outstanding pertinent to his claims. In particular, the VLJ asked if the Veteran's recent VA treatment records were associated with the claims file. The VLJ also asked questions to help direct the Veteran's testimony concerning the frequency of his PTSD symptoms. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Board finds that there has been substantial compliance with its January 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 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 claims. 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 abuse, 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 September 2007 rating decision granted the Veteran service connection for PTSD and assigned a 50 percent rating, effective August 20, 2003. Records indicate that in June 2003 the Veteran had a positive depression screen and had been placed on antidepressant medication since June 2003. A July 2003 VA record reflects that the initial GAF assigned was 40. The Veteran has been married since 1976 and has two daughters. The Veteran has been employed (as a welder and machine operator) intermittently throughout the appeal period and retired in July 2011. The Veteran's claim in this case was received by VA on August 20, 2003. During the appeal period the Veteran has received consistent VA treatment for his PTSD 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 near 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. One of the earlier VA psychiatric records (July 2003) noted that the Veteran had marital discord and that he did not talk to his wife. Further, the Veteran also stated that his family would not visit him, a situation that disturbed him. Another early VA treatment record (April 2004) associated with the claims file observed that the Veteran had been married since 1976 but had not slept with his wife since their 16 year old daughter had been born. The Veteran stated that he had not had sexual relations with his wife for 10 years and stated that he was not close to his wife, his two daughters, or his four sisters. Further highlighting the Veteran's difficulties in social functioning are the observations contained in an October 2006 VA treatment record. That record noted that the Veteran stated that he felt nervous in general, felt nervous in the elevator, and felt nervous when around people as he felt that the people were "going to hurt me sometimes." The Veteran's serious problem in social functioning is also clearly evident by reviewing findings from an April 2007 VA PTSD examination. At that examination the Veteran stated that he felt very nervous and was isolated and withdrawn from others with no close friends. The Veteran reported a loss of interest in recreational or social activities. It was noted that the Veteran had a history of excessive drinking to manage his symptoms. In addition to noting PTSD, the examiner indicated on Axis IV that "social problems" were among the Veteran's psychosocial and environmental problems. The GAF was 50, reflective of serious impairment in social functioning. In the same manner, an August 2007 VA treatment record noted that the Veteran's chief complaint was that "I can't seem to be able to deal with society." He essentially stated that as far as he could remember he felt that he could not "handle" society and that people were trying to "take something" from him. He reported no close friends or interpersonal relationships. He stated that he was drinking a six pack of beer each night. He stated that he had marital discord and poor relationships with his daughters. He stated that he did have a good relationship with one of his sisters. The GAF was 46, reflective of serious impairment in social functioning. An August 2009 VA record noted that the Veteran was continuing his pattern of isolation. He would call his sister but would only see his daughter once a month. In a November 2009 letter the Veteran's sister noted that the Veteran had very noticeably become "unenthusiastic about engaging in events he once enjoyed and expresses a sense of hopelessness." A November 2009 VA PTSD examination noted that the Veteran complained that he was having problems coping and was having family problems. He indicated that he had been separated from his wife for a year and a half and was not particularly close with his daughters or grandchildren. He had a casual friend that he would see once a year and another casual friend he would see every three months. He reported that his activities would involve sitting at Wal-Mart and watching sports on television. The Veteran also reported emotional detachment from others and stated that he had less interest in activities than before. He also reported problems with irritability and concentration. At his December 2010 Board hearing the Veteran indicated that he felt nervous all the time and also indicated that he had problems with his personal appearance and hygiene. While still married, the Veteran stated that his PTSD was alienating himself from his wife. He indicated that his panic attacks would happen two or three times per week. 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 February 2012 VA PTSD examiner indicated that the Veteran had a markedly diminished interest or participation in significant activities. The examiner further indicated that the Veteran's PTSD caused clinically significant impairment in his social functioning. The February 2012 VA examiner assigned a GAF of 48, reflective of serious impairment in social functioning. As for particular symptoms and criteria necessary for a 70 percent rating for PTSD under Diagnostic Code 9411, the Board notes that the Veteran has himself admitted at his December 2010 Board hearing that his personal appearance and hygiene had been worsening. Additionally, the Veteran also indicated that he was nervous all the time, including while driving, which tends to demonstrate that the Veteran has difficulty in adapting to stressful circumstances. Such is also shown in the February 2012 VA examination, wherein the Veteran was found to have suicidal ideation as one of his PTSD symptoms. Significantly, it appears that the Veteran's depression has been continuous throughout the appeal period and has clearly affected his ability to function appropriately and effectively. The Veteran's recounting of his social functioning throughout the appeal period essentially approximates an inability to establish and maintain effective relationships. This finding has been confirmed by the examiners who have noted social problems on the Axis IV portion of the Veteran's various PTSD examinations. The Veteran's sister has reported essentially the same observations. 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 August 20, 2003 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 related to PTSD has been suggested by any of the examiners. Further, other than some voices he hears at night that seen to be related to his dreams, and other than a vague reference to hearing voices occasionally noted in treatment records, the Veteran has most consistently denied having any delusions or hallucinations. While at the August 2007 VA examination the Veteran noted that in the past he had physical altercations at work, he did not state that any such incidents had occurred during the appeal period, and acts of violence have not been noted by the various examiners. While the Veteran is isolative, 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 due to PTSD, or just minimal hygiene, has not been shown. While in a November 2009 statement the Veteran indicated that he would forget the names of his friends and close relatives, no examiner has linked such condition to his PTSD, and VA examiners in June 2007 and August 2007 linked such cognitive problems to the Veteran's 2001 cerebrovascular accident and dementia. While acknowledging the many difficulties that may exist, the fact remains that the Veteran has maintained a marriage of more than 35 years duration and has at least sporadic contact with one of his sisters. Significantly, neither the Veteran nor any examiner has attributed the Veteran's retirement as having resulted from his PTSD. The GAF scores assigned during this appeal have tended to be about 50. Thus, while a GAF of 40 was assigned by a July 2003 VA examiner, 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