Citation Nr: 1328328 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-03 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This matter is on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. FINDING OF FACT The Veteran's PTSD has been characterized by some difficulty in maintaining social relationships, nightmares and insomnia; obsessional rituals, impaired impulse control, near continuous panic or depression affecting ability to function independently, spatial disorientation, illogical or obscure speech, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships and/or total social and occupational impairment have not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service- connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran's PTSD claim arises from his disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, additional notice is not required and any defect in notice is not prejudicial. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records, VA outpatient treatment records and the records of his evaluations at his local Vet Center. Further, the Veteran submitted his own statements in support of his claim. A VA examination with respect to the issue on appeal was also obtained in June 2010. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination obtained in this case is more than adequate, it is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Recognition is given to the fact that the most recent VA examination for the issue on appeal is now over three years old. However, in the context of increased rating claims, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since this VA examination, and he has not contended otherwise. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly within the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining the level of the Veteran's social and occupational impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran is currently assigned a 50 percent disability rating for his PTSD. Psychiatric disorders such as PTSD are evaluated through the application of symptoms to a general rating formula that addresses essentially all psychiatric disorders. Under this formula, in order to be entitled to the next-higher 70 percent rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to symptoms such as: * suicidal ideation; * obsessional rituals which interfere with routine activities; * impaired impulse control (such as unprovoked irritability with periods of violence); * near-continuous panic or depression affecting ability to function independently, appropriately and effectively; * spatial disorientation; * speech intermittently illogical, obscure, or irrelevant; * 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. See 38 C.F.R. § 4.130, DC 9411. After a review of the pertinent evidence, the Board determines that a rating in excess of 50 percent is not warranted. As an initial matter, the evidence does not indicate the existence of physical manifestations such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical speech, near continuous panic or depression, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or any other similar types of symptoms. For example, at his VA examination in June 2010, the Veteran stated that he was not affected by psychiatric symptoms for a number of years after he left service, but that they had been recurring as of late. He also stated that he had an exaggerated startle response and was typically hypervigilant. However, upon examination, he denied suicidal ideation, and there was no indication of obsessional rituals or impaired impulse control. To the contrary, his thoughts were observed to be logical and coherent, and his memory was observed to be normal. Moreover, there was no indication of disorientation or unusual speech. Rather, while his affect was seen to be "somewhat constricted," his speech was normal in rate and tone, and there was no evidence of a thought disorder. His concentration was also observed to be within normal limits. Therefore, no noteworthy physical manifestations were observed on this occasion. Additionally, while the Veteran has undergone a number of outpatient psychiatric evaluations, including a number of treatment sessions at his local Vet Center, the evidence does not indicate that his psychiatric disorder has resulted in significant physical manifestations. For example, at an April 2010 evaluation, he complained of recurrent dreams and intrusive thoughts. However, in June 2010, he appeared oriented to person, place and time. His mood was congruent with his affect, and his concentration and memory were intact. At another evaluation that same month, his speech was observed to be normal, he denied suicidal or homicidal ideation, and his abstract reasoning, judgment and impulse control were all observed to be intact. At an August 2010 evaluation, the Veteran appeared dressed, neat and had "minimal to no noticeable exaggerated movements." He was alert and oriented, and his mood and affect appeared congruent throughout the evaluation. Significantly, he "did not appear to have any change in impairment of concentration, memory, or judgment," and he did not display nay evidence of a thought disorder, hallucinations or delusions. At subsequent evaluations in October and November 2010, he again appeared alert and oriented, with a congruent mood and affect. He denied any suicidal ideation, and he did not exhibit any change in his mental status, such as concentration, memory or thought disorders. At his most recent Vet Center evaluation in May 2011, the Veteran stated that he continued to experience a sleep disturbance where he awakened in the middle of the night with a racing heard and sweats. However, he could not remember his dreams. Upon examination, he again appeared alert and oriented, was friendly and cooperative, and exhibited no noticeable motor agitation. Since this time, the Veteran has also undergone a number of VA outpatient evaluations. Most notably, he underwent a psychosocial assessment in March 2011 that was related to his alcoholism. On that occasion, he mentioned that he was twice arrested for driving while intoxicated, but hasn't had any legal problems since the most recent of these arrests in 1987. Upon examination, his affect and mood was observed to be appropriate, and his thought processes were intact. There were no delusions or hallucinations noted, and his cognitive functioning was intact. Therefore, the Board finds that the Veteran does not exhibit any objective symptomatology that would be sufficient to warrant a rating in excess of 50 percent. Indeed, many of these objective symptoms, to include suicidal ideation, obsessional rituals, significant impaired impulse control, near-continuous panic or depression affecting ability to function independently, appropriately and effectively, spatial disorientation or intermittent speech or neglect of personal appearance and hygiene have, for the most part, not been demonstrated. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause deficiencies in most areas, to include social and occupational inadaptability. In this regard, it is clear that the Veteran's most prominent PTSD symptoms are related to his personal interactions with others. Nevertheless, the Board determines that his symptoms are not so significant so as to warrant a rating in excess of 50 percent. For example, at his VA examination in June 2010, he stated that he feels uncomfortable in large groups and that he spends a lot of time alone. He also stated his impression that other people preferred not to interact with him. Additionally, in September 2010, he stated that his sleep difficulties and personal issues prevent him from developing relationships with women. However, even though he is divorced, he has remained on friendly terms with his ex-wife, appears to have a good relationship with his three adult children, and he typically meets with other veterans at a veterans' club to drink and play pool. Moreover, at his Vet Center evaluations in 2010 and 2011, he has indicated a desire to remain active. For example, at one evaluation in May 2010, he indicated that he has an interest in certain hobbies and social networks and has a need to keep occupied. In July 2010, he expressed the desire to begin a new job, and was given contact information for work in the delivery service. At a VA psychosocial assessment in March 2011, he stated that his children are "doing well," and that he still has contact with his ex- wife. He also has had a new relationship since that time, and has continued to socialize with a group of peer veterans. Overall, the Board acknowledges that the Veteran does have some social impairment. However, despite this level of impairment, he appears able to function at least to an adequate degree. While the evidence indicates that he retired in 2010, there is little indication that he had difficulty in such employment. Moreover, even though he is divorced, the Board is persuaded by the fact that he has a seemingly stable group of social contacts which, accompanied by the fact that he has a good relationship with his children, weighs against a finding that his social functioning is so impaired as to warrant a rating in excess of 50 percent. The Board would also like to again point out that with the Veteran's existing and ongoing relationships, total social impairment is clearly not shown. The criteria for a 100 percent rating additionally include symptoms of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to be able to perform the activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss of the names of close relatives, the Veteran's own occupation, or own name, and none of these symptoms has been demonstrated. The Board has also considered the Veteran's Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). For example, a GAF of 51-60 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), while a GAF of 41-50 would 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). In this case, the only time the Veteran was assigned a GAF score was at his VA examination in June 2010. The Board finds that the GAF score assigned at that time, 55, appears consistent with his symptoms. However, for the reasons explained above, such symptoms are not of a severity to warrant a rating in excess of his current rating of 50 percent. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his PTSD is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his PTSD according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court of Appeals for Veteran's Claims has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Court of Appeals for Veterans Claims has made clear in Mauerhan, 16 Vet. App. at 146, that VA is required to consider all relevant psychiatric symptoms, and not merely the symptoms listed in the general rating formula for psychiatric disorders. In accordance with Mauerhan, the Board has reviewed all of the relevant symptoms that are related to his PTSD, regardless of whether they are included in the general rating formula and, as such, there are no symptoms that were not able to be addressed by the applicable diagnostic code. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, since the Veteran has not asserted that he is unemployable solely because of his service-connected PTSD, the record has not raised an included claim for a total disability rating based on individual unemployability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In conclusion, based on evidence of record, the Board determines that an increased rating for the Veteran's PTSD is not warranted for the period on appeal. As such, the appeal is denied. ORDER An initial rating in excess of 50 percent for PTSD is denied. ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs