Citation Nr: 1328907 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 12-23 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2003 to April 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which continued a 30 percent evaluation for the Veteran's posttraumatic stress disorder. In his appeal to the Board, the Veteran requested a Board hearing by live videoconference in August 2012. A hearing was scheduled for March 15, 2013, but the Veteran failed to appear at the hearing. FINDING OF FACT The Veteran's PTSD is manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to various symptoms. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.130, DC 9411 (2012). The Veterans Claim Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An August 2011 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1) (2012). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an April 2011 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A (West 2002), 38 C.F.R. § 3.159 (2012). The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2) (2012). A VA examination for PTSD was provided in September 2011. The VA examiner conducted a thorough interview and described the current severity of the Veteran's PTSD in sufficient detail so that the Board's evaluation is an informed decision. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of the two disability ratings shall be applied, the higher is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Criteria: The Veteran is currently assigned a 30 percent rating for a service-connected chronic adjustment disorder under 38 C.F.R. 4.130, Diagnostic Code 9411. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, or mild memory loss. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Higher ratings are possible for more severe manifestations. Facts VA treatment records indicate the Veteran re-established mental health care in August 2011 after ceasing treatment in August 2009. During an appointment in August 2011, the Veteran reported feeling withdrawn from his life. The Veteran was not employed at the time, but was attending Kaplan College full-time. The VA physician noted that the Veteran's affect was stable and appropriate during the interview. Additionally, the Veteran's speech was articulate and his thought process was both coherent and logical. The physician assigned a GAF score of 55, which is indicative of moderate symptoms, and noted that the Veteran experienced feelings of detachment as well as problems with anger, concentration, and sleeping due to PTSD. Additional VA treatment records from September 2011 indicate the Veteran complained of an increase in sleep disturbances, but the remaining symptoms of the his PTSD were unchanged. On VA examination in September 2011, the Veteran reported that he has few friends and tends to keep to himself and do nothing. The Veteran also reported being in a relationship since January 2010, but indicated that he remained emotionally distant. The Veteran reported a sporadic job history. For example, the Veteran worked for Interstate Power Care from 2008 until 2010, but quit because there was no room for advancement. The Veteran also worked for one month as a driver for a small company, but quit to move to a new city. Lastly, the Veteran worked at a retail store for a month, but quit because he could not manage both school and work. The Veteran also reported that he enjoyed the retail job, but there were days he didn't feel like interacting with people which didn't work well in a retail setting. Following an interview with the Veteran and a review of his mental health treatment records, the VA examiner noted symptoms of depressed mood, anxiety, and suspiciousness. The examiner opined that the Veteran's PTSD results in occupational and social impairment due to mild or transient symptoms which decrease efficiency and ability to perform occupational tasks only during periods of significant stress. Lastly, the examiner assigned a GAF score of 60, which is indicative of moderate difficulties in social, occupational, or school functioning. In a statement received by the VA in October 2011, the Veteran reiterated that he had difficulties maintaining a healthy social life. The Veteran reported feelings of anxiety and nervousness in crowded public settings. The Veteran also reported that he was barred from rejoining the Army reserves for failing to report and that he recently lost a job due to being tired after sleepless nights. Additional statements from John Westbrook and Brooke Jeffries reported changes in the Veteran's behavior following service. Specifically, John Westbrook, a friend of the Veteran for over twenty-two years, reported that the Veteran is easily angered, has a hard time keeping a job, and has difficulties maintaining long-term social and professional relationships. Similarly, Brooke Jeffries reported that the Veteran's nightmares and sudden angry outbursts affected her relationship with the Veteran. Analysis The Veteran maintains that a higher evaluation is warranted. Specifically, the Veteran asserts that he is unable to maintain stable employment or a healthy social life. Notably, the evidence demonstrates that the Veteran's PTSD has resulted in occupational and social impairments as reported by the Veteran, his friends, and the VA examiner; however, the severity of the Veteran's impairment does not reflect the criteria for a 50 percent rating. On VA examination in September 2011, the Veteran reported having several jobs over the past few years. In October 2011 statements, the Veteran and his friend, John Westbrook, stated that he is unable to keep a steady job; however, the totality of the evidence indicates that the Veteran's sporadic job history is not related to the symptoms of his PTSD. Rather, the Veteran reported that he left his previous jobs due to lack of advancement opportunities, relocating, and the demands of college coursework. The Veteran's October 2011 statement referencing a recent job loss due to being tired is consistent with the VA treatment and exam records. VA treatment records indicate the Veteran has complained of sleep disturbances; however, during the VA exam the Veteran reported that the demands of his college coursework prevented him from managing both school and work. While the Veteran reported that his most recent job in retail was difficult during the days he did not feel like interacting with people, the record indicates that, overall, he enjoyed the job and left the position for reasons other than his PTSD symptoms. The Veteran's additional statements regarding failing to meet his Army Reserve obligations are not relevant when assessing his occupational impairment. With respect to the Veteran's social life, the Veteran reported that he has few friends due to feelings of detachment, anxiety, and anger problems. The Veteran's reports were supported by the statements of John Westbrook and Brooke Jeffries, who noted that the Veteran's anger and anxiety negatively affected his relationships. The aforementioned statements are both competent and credible because they relate to observable symptoms and are consistent with the record as a whole. Based on an interview with the Veteran, the VA examiner concluded that the Veteran's depressed mood, anxiety, and suspiciousness cause occupational and social impairment which decrease work efficiency and the ability to perform occupational tasks during periods of significant stress. There is no other competent evidence of record indicative of a more severe occupational or social impairment. While the Veteran genuinely believes that his symptoms are of such severity as to warrant a higher rating, at no time during the course of the current appeal has the Veteran exhibited symptomatology approximating or consistent with a 50 percent rating. Specifically, the record does not indicate that the Veteran experiences flattened affect, stereotyped speech, memory impairments, or panic attacks. Additionally, Global Assessment of Functioning scores have been consistent with no more than moderate symptomatology, as demonstrated by scores ranging from 55 to 60. Considering the totality of the Veteran's disability picture, no more than a 30 percent evaluation is warranted for the Veteran's service connected posttraumatic stress disorder. Due consideration has been given to Hart v. Mansfield, 21 Vet. App. 505 (2007); however, a higher evaluation is not warranted for any portion of the time period under consideration. The preponderance of the evidence is against the claim for a rating in excess of 30 percent; there is no doubt to be resolved; and a higher rating is not warranted. The Board has also considered whether referral for consideration of an extraschedular rating is warranted. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. The Veteran's service-connected posttraumatic stress disorder is primarily manifested by feelings of detachment, depressed mood, anxiety, and suspiciousness that cause an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. These manifestations are contemplated by the rating schedule, the assigned scheduler evaluation for the service-connected posttraumatic stress disorder is adequate, and referral is not required. A request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). While the evidence of record indicates that the Veteran is currently unemployed, the Veteran reported that he left his previous employment in retail because he could not manage both work and full-time college course work. Therefore, Rice is inapplicable. ORDER Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling, is denied ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs