Citation Nr: 1328836 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-11 223A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD), effective April 25, 2008. 2. Entitlement to a rating in excess of 50 percent for PTSD, effective November 17, 2009. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1968 to February 1971 and from January 1975 to March 1976. During his first period of service, his primary military occupational specialty was as a Firefighter. He had service in the Republic of Vietnam from January 1969 to January 1970, where he served as a Crash and Rescue Specialist. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the RO. Effective June 2010, the Veteran is in receipt of a combined 100 percent schedular disability evaluation. In September 2010, S. R., L. M. F. T., a health care provider treating the Veteran for PTSD, reported that the Veteran was unemployable due to PTSD and that a total rating was, therefore, warranted. However, in January and February 2011, the Veteran specifically declined to pursue a claim of entitlement to a total rating due to individual unemployability (TDIU) caused by service-connected disability. Accordingly, the Board has no jurisdiction over such a claim, and it will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002). FINDINGS OF FACT 1. From April 25, 2008 through November 16, 2009, the Veteran's PTSD was productive of no more that occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. Since November 17, 2009, the Veteran PTSD has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for the period from April 25, 2008 through November 16, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 ( 2. The criteria have been met for a 70 percent rating for PTSD, effective November 17, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of his claims of entitlement to increased ratings for his service-connected PTSD. After reviewing the record, the Board finds that VA has met that duty. In April 2008, the Veteran filed a claim of entitlement to service connection for PTSD. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as that for rating service-connected disabilities and assigning effective dates, should service connection be granted. In August 2009, the RO granted the Veteran's claim of entitlement to service connection for PTSD and assigned a 30 percent disability rating, effective April 25 2008. The Veteran disagreed with that rating percentage, and this appeal ensued. In January 2010, the RO raised the Veteran's rating for PTSD to 70 percent but retained the effective date of April 25, 2008. In that same January 2010 rating action, the RO reduced the Veteran's rating for PTSD to 50 percent, effective November 17, 2009. Those ratings did not represent a full grant of benefits sought on appeal; and, therefore, the case was transferred to the Board for appellate action. Inasmuch as it is derived from the initial service connection claim, the issues concerning the Veteran's ratings for PTSD are considered a "downstream" issues. Grantham v. Brown, 114 F.3d 1156 (1997). Although VA has not specifically notified the Veteran of the information and evidence necessary to substantiate the increased rating claims, such notice is not required. In December 2003, VA General Counsel issued a precedential opinion stating that, if VA received a notice of disagreement (NOD) in response to a decision on a claim for which VA had already sent the Veteran a duty to assist letter, and the NOD raised a new issue, the duty to assist the Veteran did not require VA to provide notice of the information and evidence necessary to substantiate the newly raised "downstream" issue. See VAOGCPREC 8-03, 69 Fed. Reg. 25180 (2004). The Board is bound by that opinion. 38 U.S.C.A. § 7104(c) (West 2002). Hence, VA has essentially complied with its duty to assist the Veteran in the development of his claim of entitlement to an increased rating for PTSD. During the course of the appeal, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate and complete the Veteran's increased rating claims. VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records reflecting the Veteran's VA treatment July 2000 through September 2012; the report of an April 2008 psychological evaluation by I. B., Ph.D.; statements received in April 2008 from the Veteran's wife, son, and daughter; statements received in June and July 2008 from the Veteran's former employers; the report of a January 2009 psychological evaluation by R. G. H., Psy.D.; an August 2009 report from S. R., L.M.F.T.; a September 2009 statement from M. R.; and the report of an October 2010 psychiatric consultation for the Social Security Administration. In June 2008 and September 2012, VA examined the Veteran to determine the nature, etiology, and level of impairment due to any psychiatric disorder found to be present. The VA examination reports show that the examiners reviewed the Veteran's medical history; interviewed and examined the Veteran; documented his medical conditions; and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, VA has offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. To date, however, he has declined that offer. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Claim The Veteran contends that the initial 70 percent rating and the subsequent reduction to 50 percent do not adequately reflect the levels of impairment caused by his service-connected PTSD. Therefore, he maintains that increased ratings are warranted. The Board will in part grant the appeal. Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule For Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. PTSD is rated in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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. Id. A 70 percent rating is warranted for PTSD, when there is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted for PTSD, when there are 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Relevant to an evaluation of the level of impairment caused by PTSD is the score on the Veteran's Global Assessment of Functioning (GAF) Scale. That scale is found in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV) and reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996). The nomenclature in DSM IV has been specifically adopted by VA in the evaluation of mental disorders. 38 C.F.R. § 4.125, 4.130 (2012). A GAF of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. Id.; see Carpenter v. Brown, 240, 242 (1995). 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). 38 C.F.R. § 4.125, 4.130 (2012); see Richard v. Brown, 9 Vet. App. 266, 267 (1996)). A GAF of 31 to 40 signifies some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., where a depressed man avoids friends, neglects family, and is not able to work). 38 C.F.R. § 4.125, 4.130 (2012); see Brambley v. Principi, 17 Vet. App. 20 (2003) (J. Steinburg concurring) (A GAF of 40 signifies considerably greater occupational impairment than a GAF of 50.) A GAF of 21 to 30 is reflective of behavior which is considerably influenced by delusions or hallucinations (e.g., speech is, at times, illogical, obscure, or irrelevant) OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). DSM IV at 32. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (When service connection is granted and an initial rating award is at issue (as in this case for the period from April 25, 2008 through November 16, 2009) separate ratings can be assigned for separate periods from the time service connection became effective.). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board will first consider the claim of entitlement to a rating in excess of 50 percent for PTSD, effective November 17, 2009. The evidence on file at that time and thereafter includes the reports of numerous individual VA psychiatric consultations and group therapy reports; a report from the Veteran's treating VA psychiatrist from May 2008 to February 2010; the October 2010 report for the Social Security Administration and the report of the September 2012 VA psychiatric examination. They show that the Veteran's PTSD was manifested primarily by impaired sleep, nightmares and flashbacks several times a week, intrusive thoughts of Vietnam, anger, a dysphoric mood, poor concentration, panic attacks, social withdrawal, and intermittent suicidal ideation. The reports of the Veteran's group therapy and psychiatric consultations generally show a GAF from 51 to 60 which is compatible with moderate impairment. While important in assessing the level of impairment caused by psychiatric illness, the GAF is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001). The Veteran reported that the severity of his psychiatric disorder varied virtually daily. VA treatment reports confirm periods when the Veteran regressed. For example, in February and March 2010, the Veteran's GAF was as low as 46. The Veteran reported that he had learned of a fellow veteran - apparently a service colleague, had committed suicide triggering not only bereavement but intrusive memories, flashbacks, and nightmares of Vietnam. In addition, the Veteran's treating VA psychiatrist from May 2008 through February 2010 found that, overall, the Veteran's GAF was 44. The reports of the Veteran's VA group therapy were anywhere from moderate to severe. The Veteran's September 2012 VA examination confirms these manifestations of the Veteran's PTSD and their severity. Following a very detailed review of the Veteran's psychiatric history and mental status evaluation, the VA examiner opined that those manifestations were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran's account, functional testing and medical opinion all generally support the Veteran's contention that PTSD did not significantly improve at the time of the rating reduction. According the benefit of the doubt to the Veteran, the Board finds that since service connection became effective April 25, 2008, the manifestations of the Veteran's PTSD have met or more nearly reflected the criteria for a 70 percent rating under the ordinary conditions of life and a 70 percent schedular rating is warranted for PTSD, effective April 25, 2008. In arriving at this decision, the Board has considered the possibility of a still-higher schedular evaluation. However, the Veteran does not demonstrate gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; a persistent danger of hurting others; an 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. Although his former employers state that the Veteran had difficulty getting along with fellow employees, and he still has difficulty with his business partners, he is attempting to reconstitute his business. In April 2008 and July 2009, the Veteran's GAF was as low as 25 and no higher than 39. Reiterating, the GAF score is not dispositive of the claim. Brambly. The totality of the evidence more nearly approximates the schedular criteria for a 70 percent evaluation. For these reasons, the Board finds that a 100 percent rating is not warranted. Accordingly, a 70 percent rating, and no more, is assigned for the Veteran's PTSD from the date service connection became effective April 25, 2008. The Board has also considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected PTSD. 38 C.F.R. § 3.321(b)(1) (2012). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare 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. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The criteria for rating PTSD specifically contemplate the symptoms of that disorder: impaired sleep, nightmares, flashbacks, intrusive thoughts, anger, a dysphoric mood, poor concentration, panic attacks, social withdrawal, and intermittent suicidal ideation. 38 C.F.R. §§ 4.130, Diagnostic Code 9411. In short, the Veteran does not have symptoms associated with his service-connected PTSD that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115. Therefore, the preponderance of the evidence is against a finding that the Veteran's PTSD presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1). ORDER Entitlement to an initial rating in excess of 70 percent for PTSD, effective April 25, 2008, is denied. Entitlement to a rating of 70 percent for PTSD but not more effective November 17, 2009 is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs