Citation Nr: 1328861 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 12-01 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a higher initial disability rating for posttraumatic stress disorder (PTSD) in excess of 50 percent. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted a 50 percent rating for PTSD, effective June 18, 2009. The Veteran was scheduled for a hearing before a member of the Board in October 2012. He failed to appear at the hearing, did not request postponement, and has not shown good cause for failure to appear. Hence, the case is processed as if the request for a hearing had been withdrawn. See 38 C.F.R. § 20.702(d)(2012). The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's PTSD does not result in more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, if the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In the present appeal, the Veteran seeks an initial PTSD rating in excess of 50 percent from June 18, 2009. Pursuant to the rating criteria, PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic code 9411 (2012). A 50 percent disability evaluation is assigned where the evidence demonstrates 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 in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. Important for this case, a 70 percent disability evaluation is warranted 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 (for example only): 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); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is assigned where the evidence shows 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. The rating agency shall also consider the extent of social impairment, but not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Moreover, the lists of symptoms under the rating criteria are meant to be examples of the symptoms that would warrant the evaluation, but they are not meant to be exhaustive. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). In assessing the evidence of record, it is also important to note that the Global Assessment of Functioning (GAF) Scale 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) (citing the DSM-IV). A score of 41 to 50 is defined as 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). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). A score of 51 to 60 indicates 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). Id. A score of 61 to 70 is defined as some mild symptomatology (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, with some meaningful interpersonal relationships. Id. During the March 2011 examination, the Veteran exhibited appropriate affect and hygiene and his thought process, speech and thought content were unremarkable. He reported depressed mood and disturbances in motivation. He indicated he often feels anxious and "jittery." The Veteran stated he has difficulty sleeping because he feels worried while trying to fall asleep. He explained that he is a "light sleeper" and occasionally wakes up in the middle of the night. In addition, the examiner noted the Veteran's memory was normal. The Veteran denied the following symptoms: hallucinations, panic attacks, homicidal thoughts, suicidal thoughts, and history of violence. The Veteran also indicated that two in-service events "did not bother him," which were a "firefight" and a serious injury incurred by a fellow soldier. Ultimately, the examiner concluded that the Veteran had generally satisfactory functioning but he did experience occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD symptoms. The examiner did not find reduced reliability and productivity due to PTSD symptoms nor did the examiner find total occupational and social impairment due to PTSD symptoms, providing evidence, overall, against this claim. Regarding social impairment, the Veteran reports he has been married for forty-one years and has a "pretty good" relationship with his wife. He also reports positive relationships with two daughters, a grandson, and a few friends with whom he plays pool once a month. The Veteran stated that he sometimes goes to thrift stores and maintains his property, but he avoids crowds. The Veteran reported reading and watching TV. The Veteran indicated that he previously refinished furniture, but that he lost interest in that hobby. The Veteran also indicated that he works around the house, but "has difficulty finishing tasks." Regarding occupational impairment, the Veteran is currently retired (there is no indication that a total rating [TDIU] is being raised by this record). He indicated that in his previous employment experiences, he had a "personality conflict" with one supervisor and expressed irritability with co-workers. The Veteran indicated that he would like to return to his work as a loan originator again and "hopes that may someday be possible." At the conclusion of the examination report, the examiner provided the following comment: "Moderate symptoms and functional impairment associated with depression that appears secondary to recent major health issues and life changes. I do not find the previously diagnosed PTSD. The [V]eteran does not report any re-experiencing symptoms associated with DSM-IV-TR stressors (though he does report some depressive thoughts of things that did not bother him emotionally at the time they occurred or for many years thereafter), and all of his symptoms appear better accounted for by depression. There is no continuum of treatment connecting current depression back to military service. It appears less likely than not that the [V]eteran's depression is caused by or related to military service." Thus, the March 2011 examiner did not diagnose the Veteran with PTSD; indeed, the examiner attributed the Veteran's current feelings of depression to health problems and life changes, not in-service events. Moreover, the examiner assigned a GAF score of 60. As described above, a GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning, providing more evidence against this claim. However, the Board notes that the March 2011 GAF score is higher than previous GAF scores included in the evidence of record. Specifically, the GAF score from a group session at the Charleston Community Based Outpatient Clinic (CBOC) in April 2010 was 52. Previously, the GAF score in a September 2009 VA treatment record from the Charleston CBOC was 50, and the GAF score at the July 2009 VA examination was listed as 48 for the previous month. A score of 41 to 50 is defined as serious symptoms or any serious impairment in social, occupational, or school functioning. Therefore, over time, the Veteran's GAF scores have increased, reflecting a progression toward moderate symptomatology, providing the basis for the current evaluation, but no higher. Therefore, taking into consideration the Veteran's GAF scores and all other evidence of record, including the Veteran's descriptions of his symptoms, the Board finds that the Veteran's symptoms are of such severity to approximate, or more nearly approximate, the criteria for the currently assigned 50 percent evaluation, and no more, under Diagnostic Code 9411. 38 C.F.R. § 4.3, 4.7, 4.130. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3, 4.7. In this regard, it is important for the Veteran to understand that a 50% evaluation is a significant disability evaluation. If the Veteran had no problem with his PTSD, there would be no basis for the current findings, let alone a higher rating. The problems cited tend, overall, to fit within the 50 percent criteria, with some evidence against even this finding. Finally, in adjudicating the current appeal for a higher evaluation, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is inapplicable because the Veteran had a separate TDIU claim that was denied by the RO in November 2010. The Veteran did not file an NOD, which means the November 2010 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103. In any event, as noted above, it appears this issue is not being raised by the record. Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for PTSD. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director of the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)(2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular scheduler standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD is contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The scheduler rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence for the entire rating period on appeal, the Veteran's PTSD manifested depressed mood, disturbances of motivation and mood, sleep impairment, and an inability to establish and maintain effective work and social relationships. These symptoms are part of the schedular rating criteria. In addition, the levels of occupational and social impairment are explicitly part of the schedular rating criteria, which also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442; see also 38 C.F.R. § 4.21. Therefore, the Veteran's avoidance of crowds and irritability are taken into consideration as the Board contemplates occupational and social impairment. Additionally, the Board has considered GAF scores, which are incorporated through the DSM-IV as part of the schedular rating criteria, as reflective of the degree of severity of psychiatric symptoms or overall functional impairment caused by PTSD. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). Duty to Notify and Assist 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, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA 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 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, the notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the VCAA duty to notify was satisfied by a July 2009 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The letter also included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, the Veteran's personnel records, statements in support of the claim by the Veteran and his representative, VA treatment records, private medical records, and a VA PTSD examination from March 2011. The examination was adequate because the examiner reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided a sufficient analysis to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's 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). ORDER A disability rating for PTSD in excess of 50 percent is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs