Citation Nr: 1328705 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-10 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial disability evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. On November 19, 2007, the Veteran appeared and testified at a hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. The Board notes that the instant matter was previously before the Board in February 2008, at which time the Board remanded the issue of entitlement to an initial rating greater than 30 percent for PTSD for further development. It was returned to the Board in August 2011, but it was again remanded in order to complete the previously requested development. All development has been completed, and the appeal has been returned to the Board for further review. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDING OF FACT For the entire period on appeal, the Veteran's PTSD has been productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as depressed mood, chronic sleep impairment, avoidance of crowds, hypervigilance, and increased startle response. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.126, 4.130, Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 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 VCAA notice must inform the claimant of any information and 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) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, this appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the Board notes that fully compliant notice was provided to the Veteran prior to the initial rating decision by letters in March 2006 and April 2006. The Board further concludes that the duty to assist has been met. The Veteran's service treatment records have been obtained. The Veteran has offered testimony at a hearing before the undersigned Acting Veterans Law Judge, and a transcript of this hearing is in the record. All VA treatment records have been obtained, and the Veteran testified that all of his treatment for PTSD has been with VA. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. The examiners had access to the claims file and conducted an examination and also recorded the Veteran's subjective complaints. The examiner provided opinions as to the extent of symptomatology associated with the service-connected PTSD sufficient to be able to accurately adjudicate the claim. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Increased Rating The Veteran contends that the initial 30 percent evaluation assigned to his service connected PTSD is inadequate to reflect the impairment that is produced by this disability. He reports sleep difficulties due to nightmares several times a week, the avoidance of crowds and an increased desire for isolation, irritability, hypervigilance, and increased startle response. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. As noted, this issue involves the Veteran's dissatisfaction with the initial rating for his PTSD assigned following the grant of service connection. The Court has found that there is a distinction between a Veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the Veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Entitlement to service connection for PTSD was established in a September 2006 rating decision. A 30 percent evaluation was assigned for this disability, effective from the February 14, 2006 date of receipt of the Veteran's claim for service connection. This 30 percent evaluation has been unchanged and in effect the entire period of the appeal. The Veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders. Under this formula, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought process 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, or memory loss for names of close relatives, own occupation or own name. The only criteria for a total disability rating for any disability rated in accordance with the VA General Rating Formula for Mental Disorders are total occupational and social impairment. Sellers v. Principi, 372 F.3d 1318, 1324 (Fed. Cir. 2004) A 70 percent evaluation is merited 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 that is 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), and an inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The current 30 percent evaluation is merited for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9411. The Board is mindful that 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). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Veteran's scores on the Global Assessment of Functioning (GAF) scale are another tool used to assess his degree of impairment. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) [hereinafter DSM-IV]. A 61-70 rating indicates "mild symptoms or some difficulty in social, occupational, or school functioning." A score of 51-60 indicates moderate symptoms, or moderate difficulty in social, occupational or school functioning. A GAF score of 41 to 50 signifies 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). Ibid. The evidence includes a January 2006 VA psychiatry consult. The Veteran reported having feelings of fear as if someone was behind him, and sleep problems due to nightmares. Mental status examination found him to appear neat with good hygiene; have normal speech and motor control; have a euthymic mood; have logical and goal directed thoughts without hallucinations or delusions, have good insight and judgment; and to deny suicidal or homicidal ideations. His memory was fair with poor short term memory. He was able to fall asleep initially but would awaken in the night and be unable to return to sleep. The Veteran denied a depressed mood or tearfulness. The assessment of the examiner was that the Veteran had some mild to moderate symptoms including vivid memories of traumatic events in service; mild paranoia in wanting nothing to be behind him; nightmares and insomnia; and social isolation. The diagnosis was mild PTSD with exacerbation from his post service police work. His score on the GAF scale was estimated to be 45. The Veteran was seen on a regular basis at the Mental Health Clinic throughout 2006. He had improved sleep with the use of medication. Otherwise his symptoms remained as before. His GAF score ranged from a 48 in June 2006 to 55 in August 2006, October 2006, and December 2006, with a 54 in November 2006. The Veteran was afforded a VA examination of his PTSD in December 2006. The claims folder was reviewed by the examiner, who also interviewed the Veteran. The Veteran reported frequent nightmares about both his experiences in service and his post service experiences on the police force. On mental status examination, the Veteran was well oriented, and appropriately dressed and groomed. There was no evidence of significant impairment in his thinking. The Veteran was a widower, but spent a lot of time with his son. His primary social outlets were attending his weekly veteran's group sessions and church. The Veteran believed the group sessions were very helpful to him. He reported experiencing nightmares, occasional flashbacks, hyperarousal, and occasional substance abuse soon after his return from Vietnam but was able to function successfully as a police officer for over 17 years. He also had a long successful marriage. The examiner summarized by stating the Veteran did not display any significant impairment in basic cognitive functioning. He lived a fairly withdrawn and socially isolative lifestyle but this did not appear to be ego-dystonic to him. The diagnosis was PTSD, and the GAF was 60. The Veteran continued to be seen at the VA Mental Health Clinic more or less monthly from 2007 to 2011. His symptoms were as before, with somewhat fewer nightmares. His GAF scores were from a low of 56 from March 2007 to September 2007, 58 from November 2007 to June 2008, and 60 to 65 thereafter. A May 2007 letter from a VA social worker from the Vet Center says that the Veteran attends weekly PTSD group therapy sessions. He spent most of his time alone at home, and this had worsened over the past few years. He also walked his fields and checked his cows. The Veteran would visit his old fishing area twice a week and talk to the fishermen but rarely fished anymore. He attended church on Sundays, and spoke with his children and friends throughout the week. The Veteran would occasionally go out on a dinner date. He reported poor sleep with nightmares and early morning awakenings, and he had intrusive memories. The Veteran also felt uneasy around others and sat with his back against the wall. The Veteran underwent another VA examination in July 2009. The claims folder was reviewed by the examiner. When the Veteran was asked to describe his current symptoms, the examiner noted that he was surprisingly brief. These were an inability to be in crowded areas, and nightmares about three times a week. He said these symptoms had begun soon after his military experience and continued without remissions. The Veteran reported that he had retired due to a work related injury during his career as a policeman. When asked if he contended that his unemployment was due to his PTSD, the Veteran replied "No, it was due to my injury...", although he added that he was barely able to avoid being fired due to complaints related to his symptoms. The Veteran was a widower, and he got along well with most of his children. He did not socialize much but he had a girlfriend. The Veteran had ceased drinking 17 years ago. There was no impairment of thought process, impairment of communication skills, delusions or hallucinations, or suicidal or homicidal thoughts. He had positive hygiene, was clearly oriented, and had good cognition. The Veteran thought he might experience panic attacks in that he had gone to the hospital in the belief he was having a heart attack. He said he was depressed and anxious. There was no impairment of impulse control. At the conclusion of the examination and record review, the examiner opined that the Veteran's PTSD symptoms most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to depressed mood, anxiety, suspiciousness, panic attacks that were weekly or less often, chronic sleep impairment, and mild memory loss. The diagnosis was PTSD, and the GAF was 58. Records dating from 2006 to 2007 have been received from the Vet Center. These show that the Veteran participated in weekly group therapy sessions. A June 2011 intake assessment included a mental status evaluation that was normal. There was no evidence of a thought disorder. The Veteran reported experiencing nightmares three to four times a week and brief intrusive thoughts two to four times a week. He avoided reminders of his wartime stressors, experienced feelings of detachment with relationship problems, and had experienced difficulty with sleep, irritability, hypervigilance, and exaggerated startle response for years after service. The group therapy notes state that the Veteran was making progress in his treatment goals. The Board finds that entitlement to an evaluation in excess of 30 percent is not demonstrated for any portion of the period on appeal. The Veteran has experienced basically the same symptomatology during this period. His most significant symptom appears to be sleep problems that are caused by nightmares several times a week, although he also has some social isolation, irritability, hypervigilance, and exaggerated startle response. The Board recognizes that shortly before service connection was established on February 14, 2006, a January 2006 VA examiner assigned a GAF of 45, which represents serious symptoms such as suicidal thoughts or serious impairment in social, occupational, or school functioning such as not having any friends. However, this same examiner described the Veteran's symptoms as mild. The evidence shows that the Veteran has always denied suicidal thoughts, and that he has always retained family relationships, some friends and some social life even with his increased isolation. These symptoms are not consistent with serious impairment represented by a GAF of 45. The Veteran has shown some improvement in his sleep over the years, and his GAF scores have remained in the 50s and 60s since August 2006, which are consistent with moderate to mild symptoms. Finally, the July 2009 VA examiner opined that the Veteran's PTSD symptoms most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to depressed mood, anxiety, suspiciousness, panic attacks that were weekly or less often, chronic sleep impairment, and mild memory loss. This is consistent with the Veteran's current 30 percent evaluation. 38 C.F.R. § 4.130, Code 9411. The record shows that the Veteran is currently unemployed, and the Board has considered whether or not a claim for a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) has been raised. However, when the Veteran was specifically asked at the July 2009 VA examination if he was claiming that his PTSD caused his unemployment, he answered that it did not. Therefore, entitlement to TDIU is not for consideration in this instance. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board had considered entitlement to an extraschedular evaluation, but finds that one is not merited in this case. The Board finds that the record does not reflect that the Veteran's PTSD is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id. Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation as "governing norms", which include marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that the rating criteria to evaluate the Veteran's service-connected PTSD reasonably describes his disability level and symptomatology and he has not argued to the contrary. His most severe symptom is sleep impairment. This is specifically considered in 38 C.F.R. § 4.130, Code 9411, as are the Veteran's other symptoms. These rating criteria reasonably describe the Veteran's disability level and symptomatology, and consequently his disability level is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate. Moreover, the Veteran has not contended that his service-connected disability caused frequent periods of hospitalization or marked interference with his employment and such is not shown by the evidence of record. There is no evidence of a hospitalization, and the Veteran retired for reasons unrelated to PTSD. For these reasons, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an initial disability evaluation in excess of 30 percent for post-traumatic stress disorder is denied. ____________________________________________ G. A. Wasik Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs