Citation Nr: 1327833	
Decision Date: 08/30/13    Archive Date: 09/05/13

DOCKET NO.  11-30 258	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Andrew Larson, Associate Counsel



INTRODUCTION

The Veteran had active military service from February 1966 to February 1968, including a tour in Vietnam.  

This appeal to the Board of Veterans' Appeals (Board/BVA) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran's claim for service connection for PTSD and assigned an initial 30 percent rating retroactively effective from February 28, 2011, the date of receipt of his claim for this condition.  His appeal is for a higher initial rating for this disability.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating - meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others).  


FINDING OF FACT

The Veteran has 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, chronic sleep impairment, and mild memory loss.  


CONCLUSION OF LAW

The criteria are not met for an initial rating higher than 30 percent for the PTSD.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim.

With respect to VA's notice obligations, because this claim concerns an appeal of an initial rating, the VCAA notice obligations were fully satisfied once service connection was granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a decision awarding service connection and assigning a disability rating and an effective date has been made, the section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated).

In this circumstance, according to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008) and other precedent cases, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  The RO provided the Veteran this required SOC in October 2011, also since has provided him supplemental SOCs (SSOCs) in August and October 2012, citing the applicable statutes and regulations governing the assignment of disability ratings and containing discussion of the reasons or bases for not assigning a higher initial rating.  The record does not show, nor does he or his representative otherwise contend, that any notification deficiencies, even if, for the sake of argument, any have occurred, have resulted in prejudice.  See Goodwin v. Peake, 22 Vet. App. 128 (holding that the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements such as the disability rating and effective date).

To satisfy its duty to assist, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A.  This includes assisting the claimant in obtaining necessary medical examinations and opinions.  Id.  In the disability-rating context, so once service connection for the disability has been established, this may include having the Veteran reexamined to reassess the severity of his disability - especially if he alleges a worsening of his disability since it was last rated or examined.  See Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of the disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination).  See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, when a Veteran claims that a disability is worse than when originally rated or last examined by VA, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (VA must consider the history of the disability).  See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination).  See, as well, VAOPGCPREC 11-95 (April 7, 1995).

There is no requirement, however, to have the Veteran reexamined merely because of the passage of time since an otherwise adequate examination, so not just as a simple matter of course.  Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007).


In this case, the Board concludes that the duty to assist also has been met.  The Veteran's service treatment records (STRs) have been obtained, as have his post-service VA and private treatment records.  He additionally was provided VA compensation examinations, initially in April 2011 when he was still trying to establish his underlying entitlement to service connection for his PTSD, but also since in October 2012, therefore, since establishing that entitlement.  That initial evaluation therefore more concerned the etiology of his PTSD, but nonetheless also included findings regarding its severity, and that more recent evaluation was specifically to reassess the severity of this disability, so was entirely concerned with this now most important downstream determination.

The reports of these VA compensation examinations, especially when considered along with the other relevant evidence in the file, provide the information needed to properly rate the PTSD according to the criteria found in 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.  So additional examination of this disability is not needed.  See 38 C.F.R. § 3.327(a).  And since there is no indication of any relevant evidence still needing to be obtained concerning this claim, the Board is proceeding with its consideration of this claim.

II.  Merits of the Claim

The Veteran's PTSD has been rated as 30-percent disabling throughout the rating period on appeal.  He believes he is entitled to a higher initial rating for this disability.  In his September 2011 notice of disagreement (NOD) and November 2011 substantive appeal to the Board (on VA Form 9), he referenced the symptoms required for a higher 50 percent or even greater rating and maintained that he has all of these necessary symptoms.  He argued that a review of the clinical and doctor's notes that are in his VA medical records at the Holdrege Community Based Outpatient Clinic (CBOC) would confirm that the rating for his PTSD should be increased.


His PTSD is rated under the General Rating Formula for Mental Disorders - but, specifically, under 38 C.F.R. § 4.130, DC 9411.

In addition, the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed in 38 C.F.R. § 4.130.

When evaluating a mental disorder, the evaluation must be 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 the examination.  38 C.F.R. § 4.126(a).  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Under the General Rating Formula, a 30 percent rating requires 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, DC 9411

To receive a higher 50 percent rating, the evidence must show 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.  Id.


An even higher 70 percent rating requires 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 inability to establish and maintain effective relationships.  Id.

The maximum 100 percent rating requires 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.  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.  So this is not an exhaustive list of symptoms required for a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130.  In determining whether the Veteran meets the criteria for an increased rating, the Board must consider whether he 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 evaluating the evidence, the Board also has considered various Global Assessment of Functioning (GAF) scores contained in the DSM-IV, which clinicians have assigned.  A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32).  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 percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment.  See generally 38 C.F.R. § 4.126 ; VAOPGCPREC 10-95.

Generally speaking, the higher the GAF score, the higher the overall functioning of the individual.  A score of 61-70 is indicative of "some 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 functioning pretty well, has some meaningful interpersonal relationships."  DSM-IV at 46-47.

A score of 51-60 is indicative of "[m]oderate 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)."  Id.

A score of 41-50 indicates "[s]erious 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)."  Id.


In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by him or by someone else on his behalf, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning his claim.  He must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

As already alluded to, since receipt of his claim in February 2011, the Veteran has had two VA compensation examinations for his PTSD, the first of which was in April 2011.  At the conclusion of that mental status evaluation, he was diagnosed with PTSD for the first time by a VA psychologist who had completed a PTSD Disability Benefits Questionnaire (DBQ) on the Veteran.  The Veteran reported problems with alcohol and maintaining employment upon returning from Vietnam, but said he eventually quit drinking in 1984 and obtained a job.  The examiner indicated the Veteran re-experienced his traumatic events in service via recurrent distressing dreams, acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes), and physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.  The examiner also noted the Veteran made efforts to avoid thoughts, feelings or conversations associated with the trauma, made efforts to avoid activities, places or people that arose recollections of the trauma, had an inability to recall an important aspect of the trauma, and felt detachment or estrangement from others.  The examiner remarked that the Veteran suffered from sleep problems and an exaggerated startle response.  The Veteran reported nightmares about his traumatic experience, inability to be around crowds, inability to remember things from his time in Vietnam, quick startle response, and sleep troubles.


Ultimately, though, the examiner determined the Veteran suffered from occupational and social impairment due to just relatively mild or transient symptoms that decrease work efficiency and his ability to perform occupational tasks.  The corresponding GAF score assigned was 65, which, to reiterate, according to the DSM-IV, suggest only relatively "mild" symptoms and impairment.  The examiner did not remark or otherwise affirm that the Veteran suffered from depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, or mild memory loss.

The second and more recent VA compensation examination was in October 2012.  The same VA psychologist administered another PTSD DBQ for the Veteran.  The examiner concluded the Veteran had 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, and assigned the Veteran a GAF score of 55.  That was a lower score than previously assigned and in a different range (51-60 instead of 61-70), but even that lower score at most signifies the Veteran has just relatively "moderate" social and occupational impairment, as opposed to the "serious" social and occupational impairment contemplated by a GAF score in the even lesser range of 41-50.  His existing 30 percent rating contemplates this level of impairment.

The Veteran reported that social events for him consisted of just himself and his wife.  He also reported working full time as a Heavy Equipment Operator.  He indicated he was taking medication for his anxiety, which had improved his sleeping patterns.  The examiner observed the Veteran was correctly oriented (to time, person, place and situation), with attention, concentration, insight, and judgment intact, as well as his memory for remote, recent, and immediate events.  The Veteran stated that, before he was on medication, he had trouble getting along with people, but that had gotten better.  He also stated that hearing a helicopter fly overhead caused him to experience flashbacks to experiences he had in Vietnam.  He reported nightmares "every once in awhile," but thought the medication was helping with those as well.  The examiner remarked that the Veteran re-experienced his traumatic event via recurrent and distressing recollections and recurrent distressing dreams.  The examiner remarked the Veteran made efforts to avoid thoughts, feelings or conversations associated with his trauma, as well as activities, places or people that arouse recollections of the trauma.  The examiner remarked the Veteran suffered from irritability or outbursts of anger, hypervigilance and exaggerated startle response.  He also remarked the Veteran suffered from anxiety, attributable to his PTSD.

Other than those VA compensation examinations assessing and reassessing the severity of his PTSD, the Veteran also received treatment intermittently from a VA social worker from January through November of 2011, and again in June 2012.  The Veteran described sleep troubles, nightmares, irritability, quick temper, and memory loss of experiences in Vietnam over the course of those treatments.  He consistently denied being suicidal or suffering from hallucinations or delusions.  The social worker assigned him GAF scores ranging from 50 to 53, so mostly in the "moderate" as opposed to "serious" or severe range of impairment.  The Veteran also discussed the affect his problems had on his family.  He had a PTSD checklist administered by the social worker in April 2011, in which the social worker concluded that a "PTSD Diagnosis is suggested."  But the mere fact that VA granted service connection for this condition is, itself, concession the Veteran has it.  See 38 C.F.R. § 3.304(f) (requiring a DSM-IV diagnosis of this condition as a precursor to granting service connection for this disability).  The more pertinent concern in this appeal is its severity since this more so addresses the "downstream" issue of whether a higher initial rating is warranted for this disability.

During the June 2012 session, the Veteran admitted that he suffered a lot due to an event that had happened in Vietnam that he and his fellow soldiers swore each other to secrecy about.  That event, as well as thoughts about what his own family may think of him if they learned of it, caused him great anxiety.

The same social worker filled out a PTSD DBQ for the Veteran in August 2012.  She diagnosed the Veteran with chronic PTSD.  She remarked that he 
re-experienced his traumatic event via recurrent and distressing recollections, recurrent distressing dreams, and intense psychological distress at exposure to internal or external cures that symbolize or resemble an aspect of the traumatic event.  She further noted that he avoided stimuli associated with the event including thoughts, feelings, or conversations about the trauma and activities, places or people that arouse recollections of the trauma.  She remarked that he showed markedly diminished interest or participation in significant activities, felt detached or estranged from others, and possessed a restricted range of affection.  She indicated he had difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response.  She remarked that his symptoms lasted more than a month and that they cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.  Further, she remarked that he had the following symptoms:  depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and the inability to establish and maintain effective relationships.  A psychologist or psychiatrist did not co-sign this DBQ affirming these findings.

As other support for his claim, the Veteran submitted letters from his sons that were received in July and August 2011.  The first letter details the Veteran's problems with alcohol, irritability, and irrational anger over the years.  It also details certain unusual habits of the Veteran, such as demanding to sit with his back to the wall at restaurants, avoiding crowds, and always choosing property on corner lots in small towns.  The son describes the Veteran as "growly."  The second letter further describes the Veteran's anger over the years, especially that directed at the Veteran's wife.  The son also stated the Veteran kept loaded guns throughout the house, one of which went off while the son and a friend were playing near it.  He goes on to describe the Veteran's unusual sleeping habits, including sleeping on the couch instead of in his bed.  He further states that the Veteran did not show emotion towards him as a child.  

The Veteran also submitted a July 2012 notarized letter from a co-worker.  
The co-worker described the Veteran as someone who prefers to work alone.  He also stated the Veteran had lost patience with other co-workers at an increasing rate in the last two to three years.

The Board finds that the weight of the evidence does not show the Veteran's PTSD has been so severe since the effective date of his award as to warrant a higher rating of 50 percent or more.  The preponderance of the evidence does not show 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.  

Neither the April 2011 nor October 2012 VA compensation examiner concluded the Veteran's constellation of symptoms fell within the purview of what is required for the higher 50 percent rating for PTSD.  In fact, the former placed him squarely within the lesser 10 percent rating criteria by indicating the Veteran had "occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks."  So seemingly according to that initial examiner, the Veteran's rating should have been 10 percent rather than the higher 30 percent he nevertheless received.  And even as mentioned accepting there was indication of greater impairment during the more recent October 2012 VA compensation examination, as for example evidenced by the lower GAF score, it still was not to a level to warrant assigning a 50 percent or greater rating, as opposed to a 30 percent rating.

The Veteran has never been diagnosed with flattened affect, speech problems, impaired judgment, impaired abstract thinking, or disturbances of motivation.  The April 2011 exam assigned him a GAF score of 65, indicating some "mild" symptoms or difficulty in social or occupational functioning, but generally functioning well.  The October 2012 exam assigned him a lower GAF score of 55, but that at most indicates "moderate" symptoms or "moderate" difficulty in social or occupational functioning, with few friends or conflicts with peers or co-workers.  

His even more recent DBQ in August 2012 listed panic attacks, mild memory loss, and the inability to establish relationships as symptoms of his PTSD.  However this DBQ was completed by a licensed clinical social worker, not a VA psychologist or psychiatrist or contract equivalent.  The DBQ did not contain a signature of a consulting psychologist or psychiatrist.

This type of thing has come up in other contexts.  As an example, the Secretary has contended that VA's use of physician's assistants (PAs) is consistent with the implementing statutes and congressional intent.  By statute, "[t]o be appointed as a physician assistant ... a person must have such medical, dental, scientific, or technical qualifications as the Secretary shall prescribe."  38 U.S.C. § 7402(b)(11).  Thus, the Secretary has the authority to dictate the conditions of employment for a physician's assistant, which the Secretary argues that he has done in VA Handbook 5005, Part II, Appendix G8 and a Veteran's Health Administrative Directive 
2004-029 (July 2, 2004) (VHA Directive).  The VHA Directive identifies the routine duties that may be performed by physician's assistants, which include performing initial histories and physical examinations.  VHA Directive 2004-029 at A-1; see Secretary's Brief (Br.) at Appendix 2.  The VHA Directive, however, also requires that a physician's assistant be supervised by a physician.  See VHA Directive 2004-029 at A-2 ("The [Chief of Staff], or the chief of the clinical service, must appoint a member of the regular physician staff to be the official supervisor ... of each [physician's assistant].").  Thus, by VA's own directive a physician's assistant may only practice under the supervision of a physician.  VHA Directive 2004-029 at A-4, A-5; see Br. at Appendix 2.

Moreover, although the Secretary is technically correct that the use of physician's assistants is consistent with implementing statutes and congressional intent, by VA's own procedures all VA medical examination reports must be signed by a physician.  Specifically, VA Adjudication Procedure Manual M21-1 (M21-1) provides:  VA medical facilities are responsible for ensuring that examiners are adequately qualified.  Although adjudication employees are not expected to review the credentials of clinical personnel to determine the acceptability of their reports, all examination reports must be signed by physicians or clinical or counseling psychologists.  Copies transmitted by [Compensation and Pension Record Interchange (CAPRI),] without signatures are acceptable, since signed copies will be maintained by the VHA examining facility.  In Johnson v. Shinseki, 23 Vet. App. 344, 348 (2010), the Court addressed an argument and held that the presumption of administrative regularity applies where a medical examination is missing a signature, such that the unsigned examination will be presumed to be transmitted through CAPRI and thus exempted from the signature requirement.  If an unsigned examination report is otherwise received, the report must be returned as insufficient for rating purposes.  M21-1, pt. VI, para. 1.07(d), change 107 (Dec. 5, 2003) (rescinded by M21- 1MR, pt. III, subpt. iii, dated Dec. 13, 2005) (now found in VA Adjudication Procedure Manual M21-1MR, pt. III, subpt. iv, ch. 3, sec. D (2007)); see Haas v. Nicholson, 20 Vet. App. 257, 277 (2006) 
(M21-1 provisions have the force and effect of Department regulations); Hamilton v. Derwinski, 2 Vet. App. 671, 675 (1992) (same).

Similarly then, while a licensed clinical social worker may perform review examinations for PTSD, they, too, apparently must do so under close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist.  There is no indication this occurred here, however.

Under ordinary circumstances, a licensed clinical social worker is more than capable of conducting VA examinations, so completing a DBQ, and providing VA medical opinions.  See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996) (upholding VA nurses' statements regarding medical nexus as well-grounded medical evidence).  In Cox, the Court (CAVC) indicated the Board may assume the competency of any VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See also Williams v. Brown, 4 Vet. App. 270, 273 (finding opinions of a VA registered nurse therapist to be competent medical evidence).  The higher Federal Circuit Court has agreed, indicating that, where an appellant does not challenge a VA medical examiner's competence or qualifications, VA need not affirmatively establish the examiner's competency.  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).

Here, however, because the question at issue involves a matter of particular medical complexity and expertise, the Board believes a psychiatrist or psychologist is more suited in comparison to a licensed clinical social worker.  An opinion, such as one like in this instance from a licensed clinical social worker, may be reduced in probative value even when it comes from someone with medical training, if the medical issue requires special knowledge or expertise.  See Black v. Brown, 10 Vet. App. 279 (1997).

Thus, both the prior April 2011 and subsequent August 2012 examinations performed by the same VA psychologist are given more weight.  In those examinations, the only symptom outside of those that fall under "increased arousal" that the Veteran was diagnosed with was anxiety.  The examiner did not mark any type of panic attacks or memory loss or the inability to form and maintain effective relationships, as symptoms.  

Furthermore, the social worker assigned the Veteran GAF scores ranging from 50 to 53 over the course of his treatment.  Those scores 51 or higher place the Veteran in the same "moderate symptom" category as the VA psychologist in the October 2012 examination.  She did eventually assign the Veteran a rating of 50 in June 2012, but this is the only instance of any professional putting the Veteran in the "serious symptoms" range.  So, for the most part, he evidenced "moderate" not "serious" impairment.

In addition to the medical evidence, the Board has considered the Veteran's personal assertions in support of his claim.  He is competent, as a layman, to report on that as to which he has personal knowledge, such as nightmares, panic attacks, sleeping difficulties, anger, and irritability.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  He has consistently stated he is easily startled, has sleep issues, feels uncomfortable recalling events from the war, is irritable, and does not like crowds.  But he has consistently, and equally, denied suffering from panic attacks and depression and having suicidal thoughts, delusions, or hallucinations.

His statements by themselves do not warrant a rating above 30 percent.  As a layman, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his PTSD in relation to the applicable rating criteria.  An examiner, including the VA compensation examiner, takes into consideration the Veteran's subjective complaints, his social and occupational history, and the results of the objective mental status evaluation in determining the overall severity of his PTSD.  This determination is multi-factorial, not just predicated on his lay statements and other testimony, but all of the relevant medical and other evidence.  Gonzales, 218 F.3d at 1380-81 (indicating that in the third and final step of the analysis of evidence (determining competency and credibility being the first two), the Board must assess the probative value and weight of the evidence in light of the entire record.  See also Baldwin v. West, 13 Vet. App. 1, 8 (1999).  The Board therefore places more weight on the VA examinations than the Veteran's statements, as well as those submitted by his sons and co-worker, regarding his symptoms and troubles.  

The totality of the evidence points to the Veteran living a relatively functional life, even if not fully functional.  He has managed to maintain his full-time employment since he quit drinking alcohol during the 1980s.  He completes chores around his house in his free time.  He maintains contact with his children and grandchildren and spends time with them on occasion.  He has maintained his self-care and has not experienced speech problems.  He has stated that he tries to maintain a normal routine to cope with his anxiety and sleep issues, and there is evidence in his file suggesting he has had success treating both with medication.  While there is indication he has had few, if any, friends outside of his family over the years, the evaluating VA psychologist did not believe this, by itself, had led to "occupational and social impairment with reduced reliability and productivity."  And this was not the case during either of the Veteran's VA examinations, which is the standard for a higher 50 percent rating.   


For these reasons and bases, the Board finds that the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2012).  Instead, the preponderance of the evidence is against this claim of entitlement to an initial rating higher than 30 percent for the PTSD, so this initial-rating claim must be denied.

In reaching this decision, the Board also has considered whether an extraschedular rating is warranted.  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  An extra-schedular 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).  See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  See Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 to the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board finds that there is no basis for further action on this question as there is no indication of an exceptional disability picture such that the scheduler evaluation for the Veteran's service-connected PTSD is inadequate.  See Thun at 115.  His startle response, hypervigilance, anxiety, nightmares, and sleep issues are fully contemplated by DC 9411.  Furthermore, there is no objective evidence of record demonstrating that his service-connected disability markedly interferes with his employment, meaning above and beyond that contemplated by the Rating Schedule.  38 C.F.R. §§ 4.1, 4.15.  He has been employed full-time as a heavy equipment operator throughout the pendency of this appeal.  Likewise, there is no evidence of record suggesting he has been frequently hospitalized because this disability.  Rather, most, if not all, of his evaluation and treatment has been on an outpatient basis, not instead as an inpatient, much less frequent inpatient.


The Board also has considered the holding of the Court in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  Here, though, the record on appeal contains no indication the Veteran is unemployable as a result of his service-connected PTSD and, indeed, he has not contended otherwise.  There resultantly is no suggestion of derivative entitlement to a total disability rating based on individual unemployability (TDIU).  Absent probative evidence of unemployability, consideration of this additional entitlement is unwarranted.  There must be cogent evidence of unemployability in the record.  See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).


ORDER

The claim of entitlement to an initial rating higher than 30 percent for the PTSD is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs